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HomeMy WebLinkAbout2016-28 - Upholding and Modifying, in Part, the Planning Commission’s Approval of Minor Site Development Review SD2015-003 and Conditional Use Permit UP2015-030 for a Restaurant with Full Alcoholic Beverage Service and Live Entertainment, and a ReductionRESOLUTION NO. 2016-28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, UPHOLDING AND MODIFYING, IN PART, THE PLANNING COMMISSION'S APPROVAL OF MINOR SITE DEVELOPMENT REVIEW SD2015- 003 AND CONDITIONAL USE PERMIT UP2015-030 FOR A RESTAURANT WITH FULL ALCOHOLIC BEVERAGE SERVICE AND LIVE ENTERTAINMENT, AND A REDUCTION IN REQUIRED OFF-STREET PARKING LOCATED AT 201 EAST COAST HIGHWAY (PA2015-113) WHEREAS, an application was filed by Irvine Company, with respect to property located at 201 East Coast Highway, and legally described as TR 5361 LOT A POR OF LOT AND POR SW1/4 SEC 26 T 6 R 10 requesting approval of a minor site development review and a conditional use permit for a new 14,252 -square -foot restaurant building with outdoor dining and a new 664 -square -foot marina restroom building and a conditional use permit for a restaurant (food service, late hours) with full alcoholic beverage service and live entertainment, and a reduction in required off-street parking; WHEREAS, on December 17, 2015, the City's Planning Commission held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach to consider Minor Site Development Review SD2015-003 and Conditional Use Permit UP2015-030. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 2006 approving Minor Site Development Review SD2015-003 and Conditional Use Permit UP2015-030; WHEREAS, on December 23, 2015, the Linda Isle Homeowners Association filed an appeal of the Planning Commission's approval of Minor Site Development Review SD2015- 003 and Conditional Use Permit UP2015-030; WHEREAS, on February 9, 2016, the City Council held a public hearing in the City Council Chambers located at 100 Civic Center Drive, Newport Beach.. to consider Linda Isle Homeowners Association's appeal. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; and WHEREAS, pursuant to NBMC Section 20.64.030(C)(3), the public hearing held by the City Council was conducted "de novo," meaning the public hearing was new and the decision being appealed had no force or effect as of the date the appeal was filed. NOW THEREFORE, the City Council of the City of Newport Beach, California, hereby resolves as follows: Resolution No. 2016-28 Page 2 of 7 SECTION 1: In accordance with NBMC Section 20.48.030 (Alcohol Sales), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales of the Zoning Code. Facts in Support of Finding: 1.. The project has been reviewed and conditioned to ensure that the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales) is maintained and that a healthy environment for residents and businesses is preserved. 2. Adjacent uses within one hundred (100) feet are Balboa Marina, SOL Cocina restaurant, and 3 Thirty 3 Waterfront restaurant, which are compatible and complementary to the proposed restaurant. 3. Although the project site is located within a census tract that meets the criteria for undue concentration of on -sale alcoholic beverage sales licenses, only two (2) of the five (5) on -sale establishments are located in close proximity to the project site and the other three (3) establishments are located at the Balboa Yacht Basin and Bayside Shopping Center; 0.7 miles and 0.6 miles away, respectively. 4. The City Council considered all of the factors specified by NBMC Section 20.48.030 and found that alcoholic beverage sales at the proposed restaurant are consistent with the purpose and intent of that section. 5. That operating under the applicable regulations of the NBMC and the recommended conditions of approval, the proposed restaurant can maintain a healthy and safe environment for residents and businesses and prevent alcohol-related problems. SECTION 2: In accordance with NBMC Section 20.52.020(F) (Conditional Use Permit, Findings and Decision), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable Specific Plan. Facts in Support of Finding: 1. The Recreational and Marine Commercial (CM) land use category is intended to provide for commercial development on or near the bay in a manner that will encourage the continuation of coastal -dependent and coastal -related uses, maintain the marine theme and character, encourage mutually supportive businesses, encourage visitor -serving and recreational uses, and encourage physical and visual access to the bay on waterfront commercial and industrial building sites on or near the Resolution No. 2016-28 Page 3 of 7 bay. The CM land use category is implemented by the Commercial Recreational and Marine (CM) Zoning District. Food service, late hours uses (Le., the restaurant) and marina support facilities (Le., marina restrooms) are permitted in the CM Zoning District with the approval of use permits. 2. The proposed restaurant is a visitor -serving use. Also, the proposed project will allow the continuation of existing coastal -dependent and coastal -related uses. Although not part of the proposed project, the Balboa Marina is a coastal -dependent use, which will continue and expand with the project. The proposed project will also facilitate the expansion of the marina, including a new public dock. The marina restrooms and yacht brokerage are coastal -related uses. The existing restrooms will be replaced and the yacht brokerage will be relocated to a waterfront location in close proximity to the marina. 3. The project site is not located within a Specific Plan area. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The CM Zoning District is intended to provide for areas appropriate for commercial development on or near the waterfront that will encourage the continuation of coastal - dependent and coastal -related uses; maintain the marine theme and character, encourage mutually supportive businesses, encourage visitor -serving and recreational uses, and encourage physical and visual access to the bay on sites located on or near the bay. 2. The, proposed restaurant 'is a , visitor -serving use and is allowed in the CM Zoning District with the approval of a conditional use permit. 3. The proposed project conforms to the height, setback, and floor area limits of the CM Zoning District. 4. In accordance with NBMC Section 20.40.110 (Adjustments to Off -Street Parking Requirements), the reduction in the amount of off-street parking is appropriate Niue to sufficient data of'reduced parking demand, joint use of parking facilities by the marina and the proposed restaurant, a parking management program, and off-site parking. 5. As conditioned, the proposed project complies with NBMC's standards for eating and drinking establishments. Resolution No. 2016-28 Page 4 of 7 Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. The project site is located in an area with other eating and drinking establishments. 2. The proposed restaurant building provides a contemporary architectural design that is compatible with existing development and modulation of building masses, elevations, and rooflines to promote visual interest. 3. When operated in compliance with the recommendations of the acoustical study and the recommended conditions, the restaurant with the outdoor patio seating and dining area can operate in compliance with the City's noise standards. 4. The proposed project is conditioned to protect adjacent uses from light and glare. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. The design, size, location, and operating characteristics of the use are compatible with the adjacent restaurant uses. 2. Adequate vehicular access to the project site is provided via East Coast Highway and Bayside Drive. 3. Adequate public and emergency vehicle access, public services, and utilities exist for the site. 4. The design of the restaurant building will comply with all Building, Public Works, and Fire Codes, and will be approved by the Orange County Health Department. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, ,jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Resolution No. 2016-28 Page 5 of 7 Facts in Support of Finding: 1. A site-specific acoustical study concluded that with the design and operational noise control recommendations, the restaurant, with the outdoor patio seating and dining area, can operate in compliance with the City's noise standards. The design and operational restrictions have been incorporated in the conditions of approval. 2. A site-specific parking study concluded that with the valet parking management plan and off-site parking, there will be sufficient off-street parking to accommodate the proposed land uses, thus avoiding parking impacts on adjacent properties and public streets. 8. The project includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. 4. The operator is required to take reasonable steps to discourage and correcl objectionable conditions that constitute a nuisance within the facility, adjacent properties, or surrounding public areas, sidewalks, or parking lots of the restaurant, during business hours, if directly related to the patrons of the establishment. SECTION 3: In accordance with NBMC Section 20.52.080(F) (Findings and Decision), the following findings and facts in support of such findings are set forth: The proposed development is: 1., Allowed within the subject zoning district, 2. In compliance with all of the applicable criteria identified in NBMC Section 20.52.080 (C)(2)(c); and vim Not detrimental to the harmonious and orderly growth of the City, nor endangers, jeopardizes, or otherwise constitutes a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed development. Facts in Support of Findings. The proposed restaurant is allowed in the Commercial Recreational and Marine Zoning District with the approval of a conditional use permit. 2, NBMC Section 20.52.080 (C)(2)(c) identifies the following criteria: Compliance with this section, the General Plan, this Zoning Code, any applicable specific plan, and other applicable criteria and policies related to the use or structure; Resolution No. 2016-28 Page 6 of 7 The efficient arrangement of structures on the site and the harmonious relationship of the structures to one another and to other adjacent developments; and whether a the relationship tionship is based an standards of good design; The corripatibility in -terms of bulk, scale, and aesthetic treatment of structures on the site and adjacent developments and public areas; The adequacy, efficiency, and safety of pedestrian and vehicular access, including drive aisles, driveways, and parking and loading spaces; The adequacy and efficiency of landscaping and open space areas and the use of water efficient plant and irrigation materials; and The protection of significant views from public right(s)-of-way and compliance with NBMC Section 20.30. 100 (Public View Protection). The development is consistent with the policies of the General Plan and Coastal Land Use Plan and complies with the land use and development regulations of the Zoning Code, The proposed restaurant building provides a contemporary architectural design that is compatible with existing development and modulation of building masses, elevations, and rooffines to promote visual interest. The proposed project will expand and enhance public access by facilitating the development of, and providing vertical access to, a new public dock and by providing a connection to planned accesswaysin the adjacent Back Bay Landing project. A site --specific parking study concluded that with the valet parking management plan and off-site parking, there Will be sufficient off-street parking to accommodate the proposed land uses, thus avoiding parking impacts on adjacent properties and public streets. The project will provide a three (3),foot-high landscaped area between the parking .lot and the southern waterfront to provide screening. Landscaped areas will utilize water efficient plant and irrigation materials. The proposed pr,')ject design will not negatively impact public access to public views to the ocean, harbor, bay, .or other scenic coastal areas. 3. The project, with the recommended conditions, will no ' t be detrimental to the harmoniOLIs and orderly�,grow_th of the City, nor endangers, jeopardizes, or Otherivise constitutes a hazard to the public convenience, health, interest, safety, or general welfare of persons resid'ng:, or working in the neighborhobd of the proposed development. Resolution No. 2016-28 Page 7 of 7 SECTION 4: The City Council of the City of Newport Beach hereby denies Linda Isle Horneowners Association's appeal and upholds and affirms, with modification, the decision of the Planning Commission to approve Minor Site Development Review SD2015-003 and Conditional Use Permit UP2015-030, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. SECTION 5: Mitigated Negative Declaration No. ND2013-002 (SCH NO. 2014081044) .was prepared for a new public boat dock in the Newport Harbor, improvement and expansion of the existing Balboa Marina, and the construction of a 19,400 square feet marine commercial hili fnr n var-ht hrr%L- rarum nnf flan nuihlir rcc+rnr%Mc onri n ree+moi iron+ nn +ham, r.r.,i.�. + ��+., /� building '� I a v�'e, age v, t v vv 1 naso �� — — " i . LL U] u[ n v[ I Le vc F1 v�Nit.l Jme. r1 subsequent negative declaration for the project is not required to be prepared pursuant to California Environmental Quality Act ("CEQX) Guidelines Section 15162 because the proposed project has a significantly reduced floor area and height than the conceptual design previously analyzed and does not constitute "substantial charges" that would involve new significant environmental effects or;a substantial increase in the severity of previously identified significant effects, or result in the adoption of mitigation measures. SECTION 6: Pursuant to NBMC Section 20.64.030, this resolution supersedes the Planning Commission Resolution No. 2006. SECTION 7: The recitals provided above are true and correct and incorporated into the operative part of this resolution. SECTION 8: if any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 9: This resolution shall take effect immediately upon its adoption by the City Council and the City Clerk shall certify the vote adopting the Tesolution. ADOPTED this 91h day of February, 2016. Diane B. Dixon Mayor ATTEST; l Leiiani 1. Brown City Clerk Attachment: Exhibit A: Conditions of Approval EXHIBIT A MINOR SITE DEVELOPMENT REVIEW SD2015-003 AND CONDITIONAL USE PERMIT UP2015-030 CONDITIONS OF APPROVAL Planning Division Conditions 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. That the "net public area" of the restaurant shall not exceed 9,030 square feet for the interior of the subject restaurant facility. 3. The outdoor dining deck shall be used only in conjunction with the related adjacent establishment. The outdoor patio deck dining and seating area shall be limited to 1,255 square feet in area. 4. Conditional Use Permit No. UP2015-030 and Site Development Review No. SD2015-003 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 5. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 6. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 7. This Conditional Use Permit and Site Development Review may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 3. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment, to this Conditional Use Permit and Site Development Review or the processing of a new Use Permit or Site Development Review. 9. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. Exhibit A — Page 1 of 13 10. Prior to the issuance of a building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 11. A copy of the Resolution, including conditions of approval Exhibit "A" shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 12. Prior to issuance of a building permit, the applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Site Development Review/Use Permit file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17.inches. The plans shall accurately depict the elements approved by this Site Development Review/Use Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 13. The hours of operation for the interior of the restaurant shall be limited from 9:00 a.m. through 2:00 a.m., daily. The last call for alcoholic beverages shall occur one half hour prior to the closing hour of the restaurant. 14. The hours of ,operation of the outdoor deck shall be limited to 9:00 a.m. through midnight, daily. 15. Deliveries, loading, unloading, opening/closing or other handling of boxes, crates, containers, building materials, trash receptacles, or similar objects shall not be permitted between 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays, or between 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays. 16. All windows and doors shall remain closed when recorded music or live entertainment occurs, or after 10:00 p.m., whichever occurs first. 17. The marina restrooms shall remain private and limited to use by marina lessees. Access to the restrooms shall be controlled by an electronic card or equivalent system. 18. The development shall incorporate the Preliminary Noise Control Recommendations identified in "Technical Noise Study for the Proposed Landside, Development .at Balboa Marina in the City of Newport Beach, CA" by Wieland Acoustics, Inc. dated October 26, 2015. 19. The sliding glass wall system on the south elevation of the restaurant building shall be converted to fixed windows and constructed with triple -glazed glass or a window system with a Sound -Transmission Class (STC) rating equal to triple - glazed glass. The sliding glass wall system on the west elevation of the southwest corner of the restaurant building shall include a locking system. Exhibit A — Page 2 of 13 20. Glass, metal, and other exterior building materials shall not have a high reflective value that could cause excessive glare. 21. Prior to the issuance of building permits, final noise control recommendations prepared by a qualified acoustical professional during the final engineering stage of the design, based on final site plans, architectural plans, and mechanical equipment plans shall be submitted to the Community Development Department for review and approval. 22. Location, number and types of dining tables and chairs shall be in substantial conformance with those depicted on the approved floor plan. The dining tables and chairs are not permitted to be moved to create standing areas for food and beverage service to patrons. 23. Outside the restaurant, patrons shall be restricted to the outdoor patio deck dining and seating area depicted on the approved site and floor plans; access to other areas of the outdoor patio deck shall be prohibited. 24. The installation of roof coverings shall not have the effect of creating a permanent enclosure. The use of umbrellas for shade purposes shall be permitted. The use of any other type of overhead covering shall be subject to review and approval by the Community Development Director and may require an amendment to this permit. 25. Live entertainment shall not be allowed in the eating and drinking establishment unless the operator has first obtained a live entertainment permit from the Revenue Division. 26. Live entertainment shall only be permitted in the bar/lounge area. 27. All doors and windows shall remain closed when live entertainment or recorded music occurs. 28. All amplified sound shall terminate at 1:00 a.m., daily. 29. No outside paging system shall be utilized in conjunction with this establishment. 30. No amplified sound shall be utilized on the outdoor patio deck. 31. There shall be no dancing allowed on the premises. 32. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons: "Be courteous and respectful of our residential neighbors while outside the establishment". Exhibit A — Page 3 of 13 33. All proposed signs shall be in conformance with any approved Comprehensive Sign Program for the project site and provisions of Chapter 20.42 of the Newport Beach Municipal Code. 34. No temporary "sandwich" signs shall be permitted, either on-site or off-site, to advertise the restaurant facility. Temporary signs shall be prohibited in the public right-of-way unless otherwise approved by the Public Works Department in conjunction with the issuance of an encroachment permit or encroachment agreement. 35. The All lighting shall conform to the standards of Section 20.30.070 (Outdoor Lighting). The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 36. The operator of the facility shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. Pre- recorded music may be played in the tenant space, provided exterior noise levels outlined below are not exceeded. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time period unless the ambient noise level is higher: 37. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or Holidays. 38. Prior to the issuance of a certificate of occupancy for the project, the applicant shall submit to the Community Development Department and the Office of the City Attorney for review and approval, a parking agreement guaranteeing the long-term availability of a minimum of sixteen (16) off-site parking spaces for the project. Upon approval by the City Attorney, the agreement shall be recorded with the County Recorder's Office. Exhibit A — Page 4 of 13 Between the hours of 7:OOAM and 10:OOPM Between the hours of 10:OOPM and 7:OOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65d BA N/A 60dBA 37. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or Holidays. 38. Prior to the issuance of a certificate of occupancy for the project, the applicant shall submit to the Community Development Department and the Office of the City Attorney for review and approval, a parking agreement guaranteeing the long-term availability of a minimum of sixteen (16) off-site parking spaces for the project. Upon approval by the City Attorney, the agreement shall be recorded with the County Recorder's Office. Exhibit A — Page 4 of 13 39. Prior to issuance of a building permit, approval from the California Coastal Commission shall be required. 40. Prior to the issuance of a building permit, the applicant shall submit a landscape and irrigation plan prepared by a licensed landscape architect. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Division.. 41. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 42. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self -latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 43. Trash receptacles for patrons shall be conveniently located both inside and outside of the ,establishment, however, not located on or within any public property or right-of-way. 44. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 45. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to" control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 46. Storage outside of the building in the front or at the, rear of the property shall be prohibited, with the exception of the required trash container enclosure. 47. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, and that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. Exhibit A — Page 5 of 13 48. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of Balboa Marina West Landside including, but not limited to, Use Permit No. UP2015-030 and Site Development Review No. SD2015-003. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 49. Prior to the issuance of grading permits, the Planning Division shall be provided evidence that the construction contractor is trained to identify suspected archaeological resources; or, a professional archaeological monitor shall be retained to monitor ground -disturbing construction activities in previously undisturbed native soils. Prior to the issuance of grading permits, the Planning Division shall verify that the following note is included on the grading plan(s); "If suspected archaeological resources are encountered during ground -disturbing construction activities, the construction contractor shall temporarily halt work in a 100 -foot radius around the find until a qualified archaeologist can be called to the site to assess the significance of the find, and, if necessary, develop appropriate treatment measures in consultation with the City of Newport Beach." .The grading contractor shall be responsible for complying with the note. If the archaeologist determines that the find does not meet the CEQA Guidelines §15064,5(a) criteria for cultural significance, construction shall be permitted to proceed. However, if the archaeologist determines that further information is needed to evaluate significance, the Planning Division shall be notified and a data recovery plan shall be prepared in consultation with the City, which may include the implementation of a Phase .I.I and/or III archaeological investigation per City guidelines. All significant cultural resources recovered shall be documented on California Department of Parks and Recreation Site Forms to be filed with the California Historical Resources Information System, South Central Coastal Information Center (CHRIS-SCCIC). The archaeologist shall incorporate analysis and interpretation of any significant find(s) into a final Phase IV report that identifies the level of significance pursuant to Public Resources Code § 21083.2(G). The City and Project Applicant, in consultation with the archaeologist, shall designate Exhibit A — Page 6 of 13 repositories in the event that resources are recovered (Mitigation Measure MM CR - 1). 50. During Project grading and construction activities, the construction contractor shall ensure that possible locations where the underground storage tanks (USTs) may have been located, either near the existing building or along the western side of the existing parking lot, as identified by Environmental Engineering & Contracting, Inc. (EEC), are potholed using heavy equipment to confirm the presence or absence of UST's on the land -side portion of the Project site. If USTs are discovered, they shall be disposed of properly per applicable State of California and federal guidelines. The Orange County Environmental Health Department provides oversight and conducts inspections of all underground tank removals (Mitigation Measure MM HM -1). 51. The following Condition of Approval shall be placed on the Project's demolition permits. COA: All demolition permits shall comply with: a) SCAQMD Rule 1403 with respect to asbestos containing materials. b) Title 17, California Code of Regulations (CCR), Division 1, Chapter 8, which addresses the removal of components painted with lead-based paint (LBP). c) Title 40 of the U.S. Code of Federal Regulations (40 CFR) regarding the removal and disposal of PCBs (Mitigation Measure MM HM -2). Fire Department Conditions 52. Roads shall be capable of supporting 72,000 pounds imposed load for fire apparatus and designed as per Newport Beach Fire Department Guideline C.01. C.F.C. Sec. 503.2.3. 53. The inside turning radius for an access road shall be 20 feet or greater. The outside turning radius shall be a minimum of 40 feet: Cul-de-sacs with center obstruction (islands) will require a larger turning. radius as approved by the fire code official (see NBFD Guideline C.01 & C.F.C. Sec. 503.2.4). 54. On-site fire hydrants and mains shall be capable of supplying the required fire flow (see NBFD Guideline B.01 for determination of fire flow). 55. Fire hydrants shall be located within 400 feet of -all portions of the buildings. C.F.C. Sec. 507.5.1. The Number of fire hydrants will be determined based upon distances and fire flow demand. 56. An automatic sprinkler system is required as per C.F.C. Sec.,903.2.1.2. Exhibit A — Page 7 of 13 57. A manual fire alarm system that activates the occupant notification system shall be installed in Group A occupancies where the occupant load due to the assembly occupancy is 300 or more. C.F.C. Sec 907.2.1. 58. Changes or additions to boat docks/marina shall meet NBFD Guideline F.01, C.F.C. Chapter 36, N.F.P.A. 303, and N.F.P.A. 14 and require a fire plan review with an "F" Permit. 59. Group A occupancies main exit shall front on a least one street or an unoccupied space of not less than 20 feet in width that adjoins a street or public way. C.F.C. Sec. 1028.2 60. Interior finishes and decorative materials shall meet C.F.C. Chapter 8 and C.B.C. Sec. 803. 61. A Type I hood shall be installed at or above all commercial cooking appliances and domestic cooking appliances used for commercial purposes that produce grease vapors. C.F.C. Sec. 609.2. 62. Each commercial kitchen exhaust hood and duct system required by Section 609 to have a Type I hood shall be protected with an approved automatic fire - extinguishing system installed in accordance with this code. C.F.C. Sec. 904.2.1. 63. Doors shall swing in the direction of egress travel where serving a room or area containing an occupant load of 50 or more persons. C.F.C. Sec. 1008.1.2. 64. Doors serving spaces with an occupant load of 50 or more in a Group A occupancy shall not be provided with a latch or lock unless it is panic hardware or fire exit hardware. C.F.C. Sec. 1008.1.10. 65. A Knox box shall be required on the building in a location approved by the fire department. Keys shall be provided for all exterior entry doors, fire protection equipment control rooms, mechanical and electrical rooms, elevator controls and equipment spaces. C.F.C. Sec. 506.1. 66. Every room or space which is used for assembly, dining, drinking, or similar purposes having an occupant load of 50 or more shall have the occupant load of the room or space posted in a conspicuous place, near the main exit or exit access doorway from the room or space. 67. Fire Lanes shall be identified as per NBFD Guideline C.02. C.F.C. Sec. 503.3. 68. Fire extinguishers shall be required for both structures (restaurant and restroom) and shall be included on the plans submitted for plan check. C.F.C. Sec. 906.1. Exhibit A — Page 8 of 13 69. All weather access roads shall be installed and made serviceable prior to and during time of construction. C.F.C. Sec. 3310.1. 70. Detailed plans of underground fire service mains shall be submitted to the Newport Beach Fire Department for approval prior to installation. The underground mains -are a separate review by the fire department requiring an "F" Permit and are not part of the Precise grading review. Police Department Conditions 71. The operator of the establishment shall secure and maintain an Operator License pursuant to Chapter 5.25 of the Municipal Code. 72. The Operator License required to be obtained pursuant to Chapter 5.25 of the Municipal Code, may be subject to additional and/or more restrictive conditions such as a security plan to regulate and control potential late -hour nuisances associated with the operation of the establishment. 73. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Sewice or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the ,premises and shall be presented uport request by a representative of the City of Newport Beach. 7 . No alcoholic beverages shall be consumed on any property adjacent to the Jicensed premises under the control of the licensee. 75. Any activities. outside the normal operational characteristics of the approved use, as conditioned, conducted outside of the building shall require a special event der{mit. 76. The ~Auarterjy dross sales of alcoholic beverages shall .not exceed the gross sales of food during the. same period. The licensee shall at all times maintain records, which reflect separately -the gross sales of food and the -gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 77, The exterior of the business shall be maintained free -of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter, and Exhibit R — Page 9 of 13 debris from the premises and on all abutting sidewalks within 20. feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 78. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 79. The operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours. 80. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 81. Strict adherence to maximum occupancy limits is required 82. The applicant/operator shall install and maintain a security camera system with.a one-month recording retention and signage approved by the Police Department. Building Division Conditions 83. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City -adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 84. The applicant shall employ the following best available control measures ("BACMs") to reduce construction -related air quality impacts: Dust Control • Water all active construction areas at least twice daily. • Cover all haul trucks or maintain at least two feet of freeboard. • Pave or apply water four times daily to all unpaved parking or staging areas. • Sweep or wash any site access points within two hours of any visible dirt deposits on any public roadway. • Cover or water twice daily any on-site stockpiles of debris, dirt or other dusty material. • Suspend all operations on any unpaved surface if winds exceed 25 mph-. Emissions • Require 90 -day low-NOx tune-ups for off road equipment. • Limit allowable idling to 30 minutes for trucks and heavy equipment Exhibit A — Page 10 of 13 Off -Site Impacts • Encourage car pooling for construction workers. • Limit lane closures to off-peak travel periods, • Park construction vehicles off traveled roadways. • Wet down or cover dirt hauled off-site. • Sweep access points daily. • Encourage receipt of materials during non -peak traffic hours. �lacement Sandbag construction sites for erosion control. Fill • The number and type of equipment for dirt pushing will be limited on any day to ensure that SCAQMD significance thresholds are not exceeded. • Maintain and utilize a continuous water application system during earth placement and compaction to achieve a 10 percent soil moisture content in the top six-inch surface layer, subject to review/discretion of the geotechnical engineer. 85, Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) to comply with the General Permit for Construction Activities shall be prepared, submitted to the State Water Quality Control Board for approval and made part of the construction program. The project applicant will- provide the City with a copy of the NO[ and their application check as proof of filing with the State Water Quality Control Board. This plan will detail measures and practices that will be in effect during construction to minimize the project's impact on water quality. 86.. Prior to issuance of grading permits, the applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Division and Code and Water Quality Enforcement Division. The. WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. 87. A list of "good house -keeping" practices will be incorporated into the long-term post -construction operation of the site to minimize the likelihood that pollutants will be used, stored or spilled on the site that could impair water quality. These may include frequent parking area vacuum truck sweeping, removal of wastes or spills,, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of pollution (e.g., trash receptacles and parking structures).: The Stage 2 WQMP shall list and describe all structural and non-structural BMPs. In addition, the WQMP must also identify the entity responsible for the long-term inspection, maintenance, and funding for all structural (and if applicable Treatment Control) BMPs. 88. Prior to the issuance of any grading permit or building permit for new construction, the Community Development Department- shall confirm that the grading plan, building plans, and specifications stipulate that: Exhibit A — Page 11 of 13 a. All construction equipment, fixed or mobile, shall be equipped with properly operating and maintained mufflers and other State- required noise attenuation devices. b. During the construction phase, the Project Applicant shall ensure that construction hours, allowable work days, and the telephone number of the job superintendent are clearly posted at all construction entrances to allow residents to contact the job superintendent. If. the job superintendent receives a complaint, the superintendent shall investigate, take appropriate corrective action, and report the action to the appropriate party. C. When feasible, construction haul routes shall be designed to avoid noise sensitive uses (e.g., residences, convalescent homes, etc.). d. During construction, stationary construction equipment shall be placed such that emitted noise is directed away from sensitive noise receivers. e. Construction activities that produce noise shall not take place outside of the allowable hours specified by the City's Municipal Code Section 10.28.040 (7:00 a.m. to 6:30 p.m. on weekdays, 8:00 a.m. to 6:00 p.m. on Saturdays; construction is prohibited on Sundays and/or federal holidays). Public Works Conditions 89. Prior to the issuance of a building permit, a revised Valet Parking Management Plan shall be submitted to the City Traffic Engineer for review and approval. The revised Valet Parking Management Plan shall identify: a. How the plan will be flexible and adjusted based on parking demand. b. How the parking areas will transition from self -parking to valet parking. 90. The applicant shall provide an offer to dedicate (OTD) a minimum eight (8) foot - wide public access easement connecting the public dock to East Coast Highway. The dedication shall include a connection to the Back Bay Landing property to the north. 91. No off-street parking spaces shall be permitted to .have bumper overhangs within the public access easement. 92. Prior to commencement of demolition and grading of the project, the applicant shall submit a construction management and delivery plan to be reviewed and approved by the Public Works Department. The plan shall include discussion of project phasing; parking arrangements for both sites during construction; Exhibit A — Page 12 of 13 anticipated haul routes and construction mitigation. Upon approval of the plan, the applicant small be responsible for implementing and complying with the stipulations set forth in the approved plan. 93. Traffic control and truck route plans shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow, streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman. 94. The final plans submitted for review and approval to the Community Development Director shall include a detailed signage plan that directs the public to the public access easement on the project site. A minimum of one (1) sign shall be included that is located and of sufficient size to be visible from the East Coast Highway sidewalk. Signs shall invite and encourage public use of the access opportunity and shall identify and direct the public to the public dock. Signs and displays regarding public access not explicitly permitted in signage plan shall require an amendment to this permit unless the Community Development Director determines that no amendment is required. Harbor Resource Condition 95. The applicant shall conduct pre -construction and post -construction inspections of that portion of the Linda Isle seawall that is adjacent to the new pilings in the marina private dock expansion area. Exhibit A — Page 13 of 13 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2016-28 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the gth day of February, 2016, and that the same was so passed and adopted by the following vote, to wit: AYES: Council Member Peotter, Council Member Duffield, Council Member Selich, Council Member Curry, Council Member Petros, Mayor Pro Tem Muldoon, Mayor Dixon NAYS: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 10th day of February, 2016. WtL ehr'-- Leilani I. Brown, MMC City Clerk Newport Beach, California (Seal) r \\ "x'90' 3 !Po w-ot-