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HomeMy WebLinkAboutC-3433 - Development AgreementRecording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND KOLL CENTER NEWPORT NUMBER A Approved July 24, 2001 Ordinance No. 2001 -11 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is executed as of July 24, 2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and KOLL CENTER NEWPORT NUMBER A ( "OWNER "). RECITALS. 1.1 Property /Ownership Status. OWNER owns all of the real property ( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of approximately five (5) acres. 1.2 Planning Status. The Property comprises a portion of Office Site B" known as "Professional and Business Office Site B" of the Koll Center Newport Planned Community, which is currently entitled with approximately one million (1,000,000) square feet of office development. 1.3 Project. OWNER has asked CITY to approve a general plan amendment, zoning amendment and related permits that would authorize the construction of approximately two hundred and thirty-five thousand (235,000) square feet of additional office use on the Property. 1.4 Hearings. The Newport Beach Planning Commission (Planning Commission) and the Newport Beach City Council (City Council) have conducted all required public hearings on the Project and certified an Environmental Impact Report for the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance with applicable provisions of State law and the Newport Beach Municipal Code. 1.5 General Findings. The Planning Commission and City Council have determined that the Project and all Project Approvals are consistent with all elements of the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the CEQA Guidelines. The Project and all Project Approvals are also consistent with all other relevant plans, policies, ordinances, resolutions and regulations of the CITY. 1.6 Affordable Housing. The CITY and OWNER have determined that the Project does not constitute a residential development subject to the terms and conditions of the CITY's Housing Element. Accordingly, no present or subsequently enacted affordable housing requirement or housing in lieu fee shall be required of OWNER. 1.7 Purpose of Agreement. The purposes of this Agreement are as follows: F:\users\cat\shared\Burnham\Koll\DA062601.doc (a) To provide for the orderly completion of development of the Property consistent with the Project Approvals, Project Conditions and this Agreement. (b) To provide the CITY and OWNER with certainty that the Project will be developed and maintained as contemplated by the Project Approvals, Project Conditions and the Development Plan. (c) To provide assurance to OWNER that OWNER may proceed with the Project, subject to compliance with Project Conditions, in accordance with the laws, policies, rules, ordinances, resolutions and regulations of the CITY in effect as of the Approval Date. (d) To strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic cost of development, mitigate the impacts of development, and provide public benefits in excess of those normally secured through the planning process. 1.8 Authorization. This Agreement is authorized by, and is consistent with, the provisions of §§ 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.9 Police Power. The City Council has determined that this Agreement: (a) Is in the best interests of the health, safety and general welfare of the CITY, its residents and the public; (b) Was entered into pursuant to, and is a valid exercise of, the CITY's police power; and (c) Has been approved in accordance with the provisions of State and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On July 10 , 2001, after giving appropriate notice and holding all appropriate public hearings, the City Council conducted the first reading of Ordinance No. 2001-1 'authorizing the CITY to enter into this Agreement. The City Council approved the Adopting Ordinance on July 24 , 2001, after giving appropriate notice and holding all appropriate public hearings. The Adopting Ordinance shall be considered effective as specified in Section 8.1. (Public Hearing was held on June 26, 2001, and the ordinance was reintroduced, as amended, on July 10, 2001.) 1.11 CEQA Review. The City Council has independently reviewed, approved and certified the EIR for the Project. In so doing, the City Council determined, among other things, that the EIR was prepared in full compliance with CEQA and the CEQA Guidelines. The City Council also adopted all feasible mitigation measures, made 3 appropriate findings and adopted a statement of overriding considerations with respect to any significant effect that could not be mitigated to a level of insignificance. The City Council also adopted a Mitigation Monitoring Program for the Project as required by CEQA and the CEQA Guidelines. 2. 2.1. "Adopting Ordinances" refers to: (a) Ordinance No. 2001 -12 adopted by the City Council on July 24 , 2001, approving Zoning Amendment No. 905 and this Agreement; (b) Resolution No. 2001 - 56 adopted by the City Council on June 26 2001, approving GPA 97 -3(B); (c) Resolution No. 2001- 55 adopted by the City Council on June 26 , 2001, approving Traffic study No. 119 and making findings pursuant to Chapter 15.40 of the Code; (d) Resolution No. 2001- 54 adopted by the City Council on June 26 , 2001 certifying the EIR as fully compliant with CEQA and the CEQA Guidelines, adopting all feasible mitigation measures, and containing the statement of overriding considerations. 2.2. "Agreement' refers to this Development Agreement. 2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith compliance with this Agreement, as set forth in Section 7. 2.4 "Approval Date" means July 24 , 2001, the date on which the City Council approved the Adopting Ordinances. 2.5 "Assign" means all forms of use of the verb "assign" and the nouns "assignment" and "Assionee" shall include all contexts of hypothecation, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California. 2.7 "CITY" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the CITY. 4 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Article 10. 2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 "Default' refers to any material default, breach, or violation of the provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while an "OWNER Default" refers to a Default by OWNER. 2.12. "Develop" means all forms of use of the verb "develop" and the noun "Development ", whether or not capitalized, means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and parking facilities and improvements. "Develop" or "Development" also includes the maintenance, repair, alteration, reconstruction or redevelopment of any building, structure, improvement, landscaping or facility after the initial construction and completion so long as consistent with the Project Approvals, the Development Plan and this Agreement. "Develop" or "Development" also includes the use of the Property in a manner consistent with the permitted general, primary, and secondary uses as set forth in the PC Text and the Development Plan. 2.13. "Development Plan" means and constitutes the plan for the development of the Property, as embodied and stated in the Project Approvals, Project Conditions and this Agreement. 2.14. "Effective Date" shall be the date this Agreement becomes effective as specified in Section 8.1. 2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No. 99091120) prepared for the Project and certified as fully compliant with CEQA and the CEQA Guidelines by the CITY Council on the Approval Date. 2.16. "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 7.4. 2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are as follows: Exhibit: Description: A Legal Description of the Property B Map depicting the Property 5 C Project Approvals comprising the Development Plan D List of Project Conditions 2.18. "Existing General Regulations" means those General Regulations approved by the CITY on or before the Approval Date (irrespective of their Effective Date) and not rescinded or superseded by CITY action taken on or before the Approval Date. 2.19. "Future General Regulations" means those General Regulations adopted or approved by the CITY in any way, after the Approval Date. 2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the CITY on or before the Approval Date as part of the Project Approvals, Project Conditions or the Development Plan. 2.21. "General Plan Amendment" or "GPA" means General Plan Amendment 97 -3(B) amending the General Plan of the CITY as approved by the City Council on June 26, 2001 if and when approved by the voters pursuant to Section 423 of the City Charter. 2.22. "General Regulations "means all laws, ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and permitted uses of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property and provisions relating to applicable fees, charges, assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO), the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water and sewer connection fee ordinances. General Regulations do not include any CITY ordinance, resolution, code, rule, regulation or official policy identified in or governing the following ( "Governmental Exceptions "): (a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 (except Chapters 15.38 and 15.40) and of the Newport Beach Municipal Code; (b) Property taxes and assessments; (c) The control and abatement of Nuisances (subject to the provisions of Section 3.4); (d) The exercise of the power of eminent domain; [ri (e) The provision of, or charges for, water, sewer, refuse, police, fire and other municipal services that are generally applicable to all owners or lessees of commercial property in the CITY; and (f) The manner in which property is used that are related to the amount and time of noise from permitted activities, the use of alcohol, and the nature and timing of special events. 2.23. "Governmental Reservations" refers to those actions that CITY may take that may affect the Project or the operation of the Project, as follows: (a) Enforcement of the specific provisions, limitations and restrictions contained in the Project, Project Approvals, Development Plan and Project Conditions; (b) Enforcement of the provisions and conditions of this Agreement; (c) Enforcement of, or pursuant to, Governmental Exceptions or Governmental Reservations; and (d) Enforcement of Existing General Regulations 2.24. "Include" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.25. "OWNER" refers to Koll Center Newport Number A, a California general partnership. 2.26. "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all or a portion of OWNER's interest in the Property is used as security. 2.27. "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY or OWNER. 2.29. "PC Text" refers to the "Koll Center Newport Planned Community Development Plan" as amended by the City Council on the Approval date and any subsequent modification of the PC Text with respect to the Property that are approved by the City Council and to which OWNER consents. Except for the modifications expressly permitted by the terms of this Agreement, OWNER shall be under no obligation to consent to modifications of the PC Text 2.30. "Planning Commission" refers to the Planning Commission of the CITY. 7 2.31. "Project" refers to the existing and proposed development of the Property pursuant to, and consistent with the Project Approvals, consistent with and subject to Project Conditions, and as described in the Development Plan. The Project includes those improvements existing on the Property as of the Approval Date. 2.32. "Project Approvals" refers to all approvals, amendments, permits, licenses, consents, rights and privileges, and other actions required or authorized to be approved, issued or taken by CITY in connection with development of the Property, including but not limited to the following discretionary actions: (a) General Plan Amendment No. 97 -3(B); (b) Zoning Code Amendment No. 898 (Koll Center Newport Planned Community Development Plan); (c) Traffic Study No. 119; and (d) Environmental Impact Report No. 158 (State Clearinghouse No. 99091120). Project Approvals also means any grants of easements, vacations, subdivisions, resubdivisions, lot line adjustments or other actions necessary to the implementation of the Project. Project Approvals also include any and all discretionary or ministerial permits related to construction of the Project including grading permits, building permits, and occupancy permits. 2.33. "Project Conditions" means all conditions to OWNER's right to proceed with Development pursuant to the Project Approvals, including the provisions of this Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by the City Council, conditions to approval of the Traffic Study, conditions to Project Approvals, Existing General Regulations and Governmental Reservations. The Project Conditions are generally described in Exhibit D. The term Project Conditions does not included the requirement for voter approval pursuant to Section 423 of the City Charter. 2.34. "Pro e " refers to the real property described on Exhibit "A" and depicted on Exhibit "B ". 2.35. "Subsequent Development Permits" means all Project Approvals granted or issued by the CITY subsequent to the Approval Date in connection with development of the Property. 2.36. "Vested Entitlement" or "Entitlement" refers to the development rights granted OWNER pursuant to this Agreement and the Project Approvals that are subject to Project Conditions. 0 3. DEVELOPMENT OF THE PROPERTY 3.1 Development Program. Upon the Effective Date, this Agreement vests OWNER's right to proceed with the development described in the Project Approvals and Development Plan. OWNER acknowledges that its right to proceed with the Vested Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants no assurance that OWNER will receive necessary permits or approvals from any other public agency with jurisdiction over the Project or that Project Approvals will not be subject to and affected by legal or other challenges or procedures initiated by third parties. (a) Permitted Uses. The Property shall be used and developed only in the manner provided in the Project Approvals and the Development Plan. CITY acknowledges that, from time to time, OWNER may seek and obtain, in accordance with applicable provisions of State and local law, minor amendments to the Development Plan and the Project Approvals. The Planning Director of the CITY ( "Planning Director") shall determine, subject to appeal by OWNER to the Planning Commission, whether a proposed amendment is a "minor amendment" for purposes of this Agreement. A minor amendment is one that does not increase vehicular trips or other environmental impacts associated with Project Approvals or the Development Plan. (b) Permitted Density of Development. OWNER shall have the vested right to develop the Property and receive the CITY's approval of all Project Approvals consistent with the permitted density and level of intensity authorized by the Project Approvals and as described in the Development Plan. The CITY shall not impose any condition on any Project Approval that reduces the permitted density and level of intensity allowed in the Development Plan and discretionary Project Approvals. CITY acknowledges that the boundaries of the parcels shown on the Development Plan and the Project Approvals are approximate and are subject to minor variation prior to recordation of final map(s) for the Project, provided OWNER complies with the applicable procedures for subdivision maps. CITY may impose standard conditions of approval on any subdivision or resubdivision requested by OWNER so long as the condition(s) do not reduce the permitted density or intensity, or substantially increase the cost of the development, allowed in the Project Approvals and described in the Development Plan. (c) Maximum Height and Size of Structures. OWNER shall have the vested right to develop the Property with the maximum height and size of structures as set forth in the Development Plan and the Project Approvals. 3.2 Compliance with Project Conditions. OWNER acknowledges that City Council approval of the Project Approvals, the Development Plan and this Agreement is subject to compliance with the Project Conditions. The Project Conditions are, among other things, designed to minimize or eliminate any adverse impacts of the Project and protect and enhance the environment. In certain instances, the Project Conditions exceed those that might otherwise be appropriate under "nexus" and "rough proportionality" tests recently articulated by the courts. By entering into this Agreement, OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any Project Conditions imposed by the CITY after the Effective Date shall be consistent with the Project Approvals, Development Plan and this Agreement. Owner also agrees to abide by any conditions or modifications to the design of the Project resulting from Project Conditions that authorize review by the City subsequent to the Approval Date. 3.3 Compliance with General Regulations. OWNER shall comply with the Existing General Regulations. Except as otherwise specified in this Agreement, OWNER shall not be obligated to comply with any Future General Regulations that are in conflict with the Development Plan or this Agreement. Any Future General Regulation(s) that are inconsistent with this Agreement and /or the Development Plan and which do not fall within the definition of Governmental Reservations or Governmental Exceptions shall not be applicable to the development or use of the Property. With respect to Existing General Regulations that require the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect on the Approval Date subject to any automatic increases or decreases mandated by the text of the Existing General Regulation as of the Approval Date. OWNER shall, however, comply with: (a) any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan or increase OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether adopted before or after the Approval Date by the CITY, which are in effect at the time applications for specific Project Approvals are submitted. 3.4 Public Health and Safety /Uniform Codes. This Agreement shall not prevent the CITY from adopting, and applying to the Project, Future General Regulations, including Uniform Codes (as referred to above), that are based on recommendations of a multi -state professional organization relating to the specifications for the constructions of improvements ( "Building Codes ") and become applicable throughout CITY. This Agreement shall not prevent the CITY from adopting, and applying to the Project, conditions inconsistent with the Development Plan or Project Approvals, when the conditions are adopted by the City Council after a noticed public hearing and pursuant to a determination by the City Council that the conditions are necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a determination of Nuisance unless the OWNER has been given notice of, and the right to present evidence at, a public hearing. Any 10 determination of Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must be supported by substantial evidence in the record of the hearing. 4. BENEFITS TO OWNER. 4.1 Right to Develoa. Upon the Effective Date and during the term of this Agreement, OWNER shall have a vested right to develop, and receive building and occupancy permits for construction on, the Property to the full extent permitted by the Project Approvals and the Development Plan subject to the Project Conditions. CITY shall only take action with respect to the Property that complies and is consistent with the Project Approvals and the Development Plan unless OWNER gives its written consent to the action or CITY is permitted to take the action pursuant to this Agreement. OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY shall not impose or increase any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of and, or any other type of exaction) on the Project, except as expressly permitted by this Agreement, Existing General Regulations, Governmental Reservations or Governmental Exceptions. However, CITY may impose or increase a condition or requirement when such action is required (as opposed to permitted) by State or federal law and then only to the minimum extent and duration necessary to comply with State or federal law. Except as otherwise provided by this Agreement, the ordinances, plans, resolutions, and policies governing the permitted use and development of the Property shall be those described in the Project Approvals and the Development Plan. 4.2 Reservations or Dedications of Land. No dedication or reservation of any portion of the Property shall be required of OWNER in conjunction with the application or issuance of any Project Approval except as may be provided in the Project Approvals, Project Conditions, Development Plan or this Agreement. 4.3 No Additional Traffic Related Fees or Conditions. OWNER's satisfaction of the provisions of Article 5 shall be deemed full compliance with all Existing General Regulations, Future General Regulations and CEQA relative to traffic impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or increase the amount of any traffic- related fee, charge, dedication, or improvement relative to, or as a condition to, development of the Project. 4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior boundaries of the Property to the extent, and subject to the same conditions, that capacity is provided to similarly situated commercial property in the CITY. OWNER agrees to accept, during the term of this Agreement, all storm drain inflow from facilities in place as of the Effective Date. 4.5 Park Fees. OWNER and CITY acknowledge that the Project may generate some incidental demand for, and usage of, park and open space land within 11 the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter 19.50 of the Newport Beach Municipal Code) and any Existing General Regulation relating to the dedication of land for park or open space purposes or the payment of park or open space fees. 4.6 Future Impact Fees. Conditions. and Exactions. So long as OWNER is not in default under this Agreement, CITY will not impose, or increase the amount of, any impact fee, condition, mitigation measure, or exaction other than as expressly required by the Project Approvals, Project Conditions, Existing General Regulations, the Development Plan, or this Agreement. CITY shall not, without the written consent of OWNER, form, or cause the formation of, any new governmental entity for the purpose of imposing fees, conditions or exactions the CITY could not directly impose pursuant to this Section. CITY may form or cause the formation of an assessment district (or similar vehicle) comprised of the Property and other property in the area for the purpose of funding public improvements that provide a special benefit to the Property. However, CITY may not include the Property in any assessment district formed to fund construction of public improvements that CITY is prohibited from imposing on OWNER because of this Agreement. 4.7 Time for Construction and Completion of Proiect. OWNER shall have the right to develop the Project in the manner and at the time that OWNER deems appropriate in the exercise of its business judgment. The Parties acknowledge that OWNER cannot predict the timing of the development of the Project because of numerous factors not within the control of OWNER, such as market demand, economic conditions, interest rates and competition. Subject to compliance with the provisions of this Agreement and Project Conditions, OWNER shall, at any time during the term of this Agreement, be entitled to apply for, and receive, Project Approvals consistent with the Development Plan. 4.8 Development Standards. Because the Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the Existing General Regulations and Future General Regulations is neither necessary nor appropriate. The terms and provisions of the Project Approvals, Development Plan or this Agreement shall prevail in the event of any conflict with Existing General Regulations or Future General Regulations. 4.9 Tentative Maps. (a) Improvement Security. As a condition of approving a final subdivision map or any future resubdivision for all or a portion of the Property, the CITY may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to the Municipal Code and the Subdivision Map Act. Nothing in this Agreement shall be construed as altering or relieving OWNER of any obligation imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement requirements, exactions or 12 other conditions of approval of a subdivision map, parcel map or lot line adjustment shall be consistent with this Agreement but CITY may impose standard conditions of approval generally applicable to similar projects subject to the provisions Section 3.1(b). (b) Expiration. Any current or future tentative maps for resubdivision of the Property shall expire concurrently with the termination of this Agreement or after the maximum period for the expiration of tentative maps authorized by Government Code § 66452.6, whichever is later. Should the time periods authorized by Government Code § 66452.6 be lengthened after the execution of this Agreement, OWNER shall be entitled to further extensions of any tentative subdivision map applicable to the Property, to the maximum extent authorized by law. (c) Resubdivisions. The Parties acknowledge that resubdivisions, lot line adjustments, or similar modifications may be necessary to develop the Project and are contemplated by this Agreement. These modifications or adjustments shall be approved provided they are in substantial conformance with the Development Plan and the Project Approvals. 4.10 Processing and Issuance of Permits. (a) Processing of Permits. As a material term of this Agreement benefiting OWNER, the CITY shall promptly accept for processing /review, and expeditiously approve, permit applications for the development and use of the Property that are in substantial conformance with the Project Approvals, Development Plan, Existing General Regulations, and this Agreement. (b) Issuance of Ministerial Project Approvals. CITY shall issue to OWNER all necessary use, building, occupancy, and other permits and approvals upon request, provided that applications are submitted in accordance with the Existing General Regulations and are in substantial conformance with the Project Approvals, Development Plan and this Agreement. (c) Vesting of Project Approvals. Any permit, license or approval issued pursuant to this Agreement shall be vested and deemed a Project Approval when granted. 4.11 Future Approvals. The future approval or issuance of any Project Approval that is consistent with the Development Plan, including any permit, license or authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations and similar actions shall not require an amendment of this Agreement 13 5. PUBLIC IMPROVEMENTS 5.1 Regional Transportation Facilities Fees. OWNER acknowledges that CITY is bound by provisions of ordinances, agreements, rules and regulations related to the financing, construction and operation of major transportation improvements that benefit large areas of Orange County including the Property. OWNER shall comply with the provisions of all such ordinances, agreements, rules and regulations, including the payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers Agreement and /or the Transportation Corridor Agency (collectively, the "TCA "). OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition and /or amount of fees through any procedure adopted or used by the TCA for that purpose. OWNER shall also have the right to commence litigation relative to the amount, method of calculating or timing of any fees or the procedure utilized by the TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless with respect to any loss, damage claim or liability arising out of any litigation commenced by OWNER that is related to this Section. OWNER agrees that satisfaction of the provisions of this Section is a condition to any discretionary or ministerial Project Approval. CITY shall not be required to issue any discretionary or ministerial Project Approval until OWNER provides proof that all fees required to be paid to the TCA, whether pursuant to ordinance, settlement or judgment, have been paid. 5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are based on the one thousand seven hundred and seventy (1770) additional average daily trips generated by the Project multiplied by the current per trip fee of one hundred thirty three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the time specified in Chapter 15.38 of the Code. 5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY for the construction of the circulation system improvements identified in Traffic Study 119 (TPO Improvements). OWNER's contributions to the funding of the TPO Improvements equal or exceed the requirements of the TPO and OWNER's contributions to the funding of the TPO Improvements is in addition to all other fees, charges or contributions required by this Agreement and /or existing General Regulations. OWNER's contribution to the TPO Improvements shall be the sum of seventy thousand dollars ($70,000) to fund construction of a second northbound (MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn lane and the construction of a second northbound (MacArthur) right turn lane at the MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary 14 plans, specifications and cost estimates for the MacArthur Project. The MacArthur Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree intersection as required by the TPO. The MacArthur Project is anticipated to cost one million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution to the MacArthur Project represents four percent (4 %) of the cost of the TPO improvements and has been calculated as specified in the TPO. CITY agrees to provide any supplemental funds necessary to ensure that construction of the MacArthur Project is complete no later than one year after occupancy of any development authorized by the Project Approvals. 5.4 Long Range Traffic Improvements. (a) Introduction. The EIR evaluated the "long term" impacts of the Project on major intersections in Newport Beach and Irvine (Long -range Analysis). The Long -range Analysis assumed construction of all entitlement and all circulation system improvements authorized in the Land Use and Circulation Elements of the Newport Beach General Plan (including the TPO Improvements). The Long -range Analysis also assumed the construction of entitlement and circulation system improvements contemplated for the year 2020 in the Land Use and Circulation Elements of the Irvine General Plan. The Long- range Analysis concluded that the Project would, depending on the construction of the J5 Ramp, have significant long -range adverse traffic impacts on four (4) or five (5) major intersections. The potential cost of mitigating the long - range impacts of the Project on intersections in the airport area could be significant. For example, mitigation of the impact of Project trips on service levels may require the construction of a grade separation and access ramps at the MacArthur /Jamboree intersection. The CITY has prepared conceptual plans for a grade separation at the Jamboree /MacArthur intersection and very preliminary cost estimates indicate that improvement costs, exclusive of right -of -way could be in the range of fifteen million dollars ($15,000,000) to twenty million dollars ($20,000,000). Moreover, the approval of the Project will result in an increase in average daily trips in the vicinity of the Project that may require other property owners to make improvements pursuant to the TPO that would not be necessary but for the Project. (b) OWNER Commitments. OWNER agrees to do the following: (i) Pay the CITY, within sixty (60) days after the Effective Date, forty-five cents ($.45) per square foot of additional entitlement granted pursuant to the Project Approvals to be used by the CITY solely for the purpose of funding a Planning Study for the Airport Area. 15 (ii) Pay the CITY the sum of eight dollars ($8.00) per square foot of additional entitlement authorized by the Project Approvals (Mitigation Fee). In the event a building permit is not issued within twelve (12) months after the Effective Date, the amount of the Mitigation Fee shall be increased by fifty cents ($.50) every twelve months after the Effective Date. (c) Payment. OWNER shall pay the Mitigation Fee prior to the issuance of any building permit for the Project. (d) Compliance. OWNER's compliance with the provisions of this Section shall relieve OWNER of any obligation to participate in any circulation system funding program developed and implemented by the CITY including a specific area plan or major thoroughfare program for the airport area. OWNER's compliance with the provisions of this Article shall constitute full and complete satisfaction of any obligation to make or fund, in whole or in part, any CITY circulation system improvement as a condition to development of the Project. 5.5 Fire Station Fee. The EIR concludes that fire suppression service to the Project will not meet CITY response time standards in the event of the closure of OCFA Station 27. CITY has conducted studies of fire service needs in the airport area and options for providing fire suppression and paramedic services consistent with CITY standards. The options for providing fire suppression and paramedic services include the construction, equipping and staffing a new fire station in the airport area or immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current estimated cost of constructing and equipping a New Fire Station is two million dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site, the construction of the New Fire Station, and /or the equipping /staffing of the station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading or construction on the Property pursuant to this Agreement. Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire suppression facility impact fee program (Program) for area served by the New Fire Station. 5.6 Circulation Study. Prior to the issuance of a building permit, OWNER shall prepare a study to evaluate the adequacy of on -site circulation and the impact of , that circulation and vehicle ingress and egress on traffic flow on or through adjacent roadways and intersections. The study shall be conducted under the direction, and to the satisfaction, of the Transportation and Development Services Manager. OWNER shall, at OWNER's sole cost and prior to occupancy, incorporate all feasible study recommendations relative to ensuring adequate on -site circulation. OWNER shall also, at OWNER's sole cost and prior to occupancy, make all feasible improvements to mitigate any significant impact of vehicle stacking on traffic flow on or through adjacent roadways or intersections. 16 6. SPECIAL PROVISIONS 6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley Burns Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales (Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER directly pays the Tax on all Eligible Transactions. 6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and Use Tax Program (Program) that, at a minimum, has the following components: (a) OWNER's commitment to, during the term of this Agreement, maintain a direct pay permit or similar authorization to directly pay Tax on all Eligible Transactions; (b) procedures that Owner will implement to maximize the amount of Tax paid to the City with respect to construction of the Project. (c) procedures pursuant to which OWNER will provide City with information identifying all buyers and sellers with whom OWNER and /or OWNER's contractors do business. The Program shall also contain other information relevant to OWNER's compliance with the terms and conditions of this Agreement pertaining to the direct payment of Tax. OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the Revenue Manager of CITY for approval. OWNER shall modify the Program in accordance with any and all reasonable recommendations of the Revenue Manager that are consistent with the intent of this Section. OWNER shall, during the term of this Agreement, fully implement the Program approved by the Revenue Manager. 7. ANNUAL REVIEW. 7.1 CITY and OWNER Responsibilities. Each Party shall review the other Party's good faith substantial compliance with this Agreement once each year (the "Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an annual review statement describing its actions in compliance with this Agreement and the Development Plan. 7.2 Procedure. In connection with the Annual Review, each Party shall have a reasonable opportunity to advise the other of alleged or potential breaches of this Agreement or the Development Plan, to explain the basis for that Party's position, and to receive from the other Party a statement of its position. A Party may issue a written "Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of the Annual Review, that Party concludes that the other Party has not complied in good 17 faith with the terms of this Agreement or the Development Plan. The Party receiving a Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the sixty (60) day period, the Party alleging the non - compliance may pursue the remedies provided in this Agreement. 7.3 Mitigation Monitoring, The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures related to the Project. 7.4 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature of the Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign an Estoppel Certificate on behalf of the CITY. 7.5 Failure to Conduct Annual Review. The failure to conduct an Annual Review shall not constitute a Default of either Party or be asserted as a Default by either Party. 8. GENERAL PROVISIONS 8.1 Effective Date. This Agreement shall bind the Parties as of the Approval Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge and agree that none of the Project Approvals becomes effective unless the voters approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to the City Council the results of any election conducted pursuant to Section 423 of the City Charter. 8.2 Term of Agreement. The term of this Agreement (the 'Term ") shall begin on the Effective Date and continue for a term of twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement, or extended pursuant to the provisions and conditions of Section 11. W.- 8.3 Assignment. OWNER has the absolute right to assign its rights and /or delegate its obligations under this Agreement and the Development Plan as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as OWNER owns/leases any part of the Property, OWNER may (at its election) assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by OWNER of the corresponding obligations. Upon any assignment of all or a portion of the Property, OWNER shall be released from all obligations under this Agreement that relate to the portion of the Property being transferred as of the date the assignment is effective. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the Assignee. If an Assignee is in Default, then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii) be a basis for an enforcement action against them. 8.4 Amendment of Agreement. (a) Consent. Subject to the provisions of Subsection 8.4(b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code, the Newport Beach Municipal Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) Amendments. The Parties acknowledge that OWNER may determine that amendments to the Development Plan and /or Project Approvals are appropriate and desirable. In such event, OWNER may apply in writing for an amendment to prior Project Approvals or the Development Plan. CITY shall process and act on the application. CITY shall have no obligation to grant any application that amends the permitted land uses, the overall intensity or density of the Project, or otherwise is an amendment of the Development Plan that could have one or more significant adverse environmental impacts. Any approved amendment shall be incorporated into this Agreement by reference and may be further amended from time to time as provided in this Section. 8.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns, provided, however, in the event of a Default the remedies shall be limited to those specified in Section 10.7. 8.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: 19 (a) Expiration of the term in accordance with Section 8.2; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the CITY to set aside, withdraw, or abrogate the CITY's approval of this Agreement or any material part of the Project or Project Approvals; or (c) The effective date of a Party's election to terminate the Agreement as provided in Section 10.3 of this Agreement. 8.7 Right to Terminate Upon Specified Events. Notwithstanding any other provision of this Agreement, OWNER retains the right to terminate this Agreement upon thirty (30) days written notice to CITY in the event that OWNER reasonably determines that continued development of the Project consistent with the Development Plan has become economically infeasible due to changed market conditions, increased development costs, burdens imposed by the CITY or other governmental entity as conditions to future discretionary approvals of the Project consistent with this Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by OWNER to be inconsistent with the Development Plan, or similar factors. 9. CONFLICTS OF LAW. 9.1 Conflict with State and Federal Laws and Regulations. Where State or federal law or regulation prevents compliance with one or more provisions of this Agreement, those provisions shall be modified to the minimum extent necessary to comply with the State or federal laws or regulations, and the modified Agreement shall remain in effect, subject to the following: (a) The CITY shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding, based on substantial evidence in the record of a public hearing where OWNER has notice and an opportunity to present evidence, that the modification is required (as opposed to permitted) by State and federal law or regulation; (b) The modifications must be limited to those required (as opposed to permitted) by the State or federal law or regulation; (c) The modified Agreement must be consistent with the State or federal law or regulation requiring the modification; (d) The intended material benefits of this Agreement must still be received by each of the Parties after modification; and (e) The modification and any applicable local, State, or federal law or regulation does not render the modified Agreement impractical to enforce; 9.2 Controlling Law. This Agreement shall be governed by the laws of the State of California. 10. DEFAULT, REMEDIES AND TERMINATION. 10.1 General Provisions. In the event of a Default the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period then a Default shall be deemed not to exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question is not susceptible of cure within the applicable Cure Period, and the Defaulting Party commences its cure within the Cure Period and diligently pursues the cure to completion. 10.2 Option to Institute Legal Proceedings or to Terminate. The noticing Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the noticing Party intends to terminate the Agreement and the alleged Default is not cured within the Cure Period. The City Council shall, no later than forty -five (45) days after a Notice of intent is served on either Party, hold a public hearing in the manner specified in the Government Code and /or the Municipal Code to consider and review the alleged Default. 10.3 Notice of Termination. After the public hearing described in Section 10.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party. The Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council at the public hearing establishes the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 12.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 10.5 Default by OWNER. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have 21 no obligation to perform any of CITY's obligations under this Agreement (as opposed to the CITY's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of competent jurisdiction. The CITY's election not to perform as permitted by this provision shall not constitute a Default. 10.6 Default by the CITY. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have no obligation to perform any of OWNER's obligations under this Agreement, unless otherwise ordered by a court of law. However, OWNER shall not be entitled to receive Project Approvals or take any other action inconsistent with provisions of the Development Plan, the Newport Beach General Plan, or relevant zoning ordinances unless otherwise permitted by law. OWNER's election not to perform as permitted by this provision shall not constitute a Default. 10.7 Specific Performance. (a) The Parties agree that, except as provided in Subsection 9.7.b., the loss by either of them of their respective rights under this Agreement would not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and /or injunctive relief. (b) Notwithstanding the foregoing, in the event any development fees or taxes are imposed on development of the Property other than those authorized pursuant to this Agreement or the Development Plan, OWNER shall be entitled to recover from CITY restitution of all improperly assessed fees or taxes, together with interest thereon at the maximum allowable non - usurious rate from the date such sums were paid to CITY to the date of restitution. 10.8 Effect of Termination. The termination of this Agreement shall not affect the rights, duties and obligations, if any, of any successor to OWNER to comply with the Project Approvals. . 11. ENCUMBRANCES AND RELEASES ON PROPERTY. 11.1 Discretion to Encumber. This Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvements. 11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon written request to CITY, be entitled to receive from CITY written notification of any default by Owner of the performance of OWNER's obligations under this Agreement 22 which has not been cured within thirty (30) days following the date of the Notice of such default. (a) Notwithstanding OWNER's default, this Agreement shall not be terminated by CITY as to any Mortgagee to whom Notice is to be given and to which either of the following is true: (i) The Mortgagee cures any default by OWNER involving the payment of money within sixty (60) days after the Notice of default; provided, however, that if any such default cannot, with diligence, be cured within the sixty (60) day period, then the Mortgagee shall have additional time as may be reasonably necessary to cure the default if the Mortgagee commences the cure within the sixty (60) day period and diligently pursues the cure to completion. (ii) As to defaults requiring title or possession of all or a portion of the Property to cure: (i) the Mortgagee agrees in writing, within sixty (60) days after receipt from CITY of the written Notice of default, to perform the proportionate share of OWNER's obligations under this Agreement allocable to that part of Property in which the Mortgagee has an interest conditioned upon the Mortgagee's acquisition of the required portion of the Property by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the Mortgagee commences foreclosure proceedings to reacquire title to the Property or applicable portion thereof within the sixty (30) days and thereafter diligently pursues foreclosure to completion; and (iii) the Mortgagee promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event of any Mortgagee records a Notice of default as to its mortgage or deed of trust, CITY shall consent to the assignment of all of OWNER's rights and obligations under this Agreement to the Mortgagee or to any purchaser of OWNER's interest at a foreclosure or trustee sale and OWNER shall remain liable for such obligations unless released by CITY or unless the applicable portion of OWNER's Property is transferred. (b) Notwithstanding Subsection 11.2.a. of this Agreement, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving OWNER, the times specified in Subsection 11.2.a of this Agreement for commencing or prosecuting foreclosure or other proceedings shall be tolled during the period of the prohibition. (c) OWNER's execution or breach of this Agreement shall not defeat, render invalid, diminish or impair the lien of any existing or future 23 mortgage or deed of trust on OWNER's Property made in good faith and for value. 11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no Mortgagee shall have an obligation or duty under this Agreement to perform the obligations of OWNER or other affirmative covenants of OWNER or to guarantee such performance. No Mortgagee shall be liable for any Default or monetary obligations of OWNER arising prior to acquisition of title to the Property by the Mortgagee or their respective successors or assigns. However, to the extent any covenant to be performed by OWNER is a condition to the performance of a covenant by CITY, the performance shall continue to be a condition precedent to CITY's performance. In the event a Mortgagee elects to develop the Property in accordance with the Development Plan, the Mortgagee shall be required to assume and perform the obligations or other affirmative covenants of OWNER under this Agreement. 12. MISCELLANEOUS PROVISIONS. 12.1 Notices. All Notices shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; and, (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt. Notices shall be addressed as follows: To the CITY: City Manager - City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Manager To OWNER: Koll Center Newport Number A 4343 Von Karman Ave. Newport Beach, CA 92660 Attn: Don Koll CC: Starpointe Ventures Either party may give the other a "Notice of a New Address" to modify this Subsection. 12.2 Enforcement Delay: Extension of Time of Performance Neither Party shall be deemed to be in Default where delays or non - performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by 24 governmental entities other than CITY, suspension of rights in accordance with the existence of unforeseen circumstances, governmental moratorium other than a moratorium enacted by CITY, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon, but in no case shall the extension of time for performance exceed six (6) months. 12.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the prior intent of the Parties and the Party substantially benefited by the material provision does not waive its rights under the unenforceable provisions, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 5 are deemed "material ". 12.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter. This Agreement supersedes all negotiations and previous offers and understandings between the Parties regarding the subject matter. 12.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything that has the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to obtain any permits from other public agencies that may be required for development of the Project. OWNER may challenge any ordinance, measure, moratorium, or other limitation in a court of law if litigation is necessary to protect the development rights vested in the Property pursuant to this Agreement. 12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably be relying on CITY's performance of its covenants in this Agreement when OWNER invests money and effort in construction of the Project. 12.10 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute documents, with acknowledgment or affidavit if reasonably required, and take any other action reasonably necessary to implement the 25 terms and conditions of this Agreement or permit development of the Project in accordance with the Development Plan. 12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and assigns of the Parties. 12.12 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the Sections and Subsections are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement does not, and is not intended to, impermissibly contract away the police power, legislative authority or governmental functions of the CITY in general or with respect to the Property. 12.13 Authority to Execute. The person executing this Agreement on behalf of OWNER warrants and represents that he /she has the authority to do so and the authority to bind OWNER to the performance of OWNER's obligations under this Agreement. 12.14 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not be unreasonably withheld. 12.15 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 12.16 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the CITY and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement s is a ministerial act and the failure of the CITY to record the Agreement as required by this Section and Government Code § 65868.5 does not make the Agreement void or ineffective. 12.17 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California. 12.18 Attorneys' Fees. In any arbitration, quasi-judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. KI 12.19 Relationship of the Parties. The contractual relationship between CITY and OWNER arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of any legal action filed and prosecuted by any person or entity other than the Parties that challenges the validity or manner of approval of this Agreement, the Project Approvals or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and hold harmless the CITY and its officers and employees with respect to any costs, expenses, judgment, damages or award, including an award of attorney fees and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER acknowledges and agrees that CITY has fully complied with all applicable statutes, ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and Existing General Regulations in the initiation, processing, evaluation and approval of all Project Approvals. OWNER's obligations pursuant to this Section shall commence as of the Approval Date and continue for the period specified in Section 8.2 or until this Agreement terminates, whichever occurs first. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of the CITY or its officers or employees that occurred on or before the Approval Date. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud, willful misconduct or violation of law by the CITY or its officers and employees that occurs after the Approval Date. 12.21 Payments. Any payment due pursuant to this Agreement shall bear interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date due until paid with interest compounded monthly. Dated: dUH 24 , 2M 2col CITY OF NEWPORT BEACH Dated: TA 27—,2001 27 Mayor KOLL CENTER NEWPORT NUMBER A By: 1 Its: w ORDINANCE NO. 2001-11 0 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT ..BEACH APPROVING A DEVELOPMENT AGREEMENT FOR KOLL CENTER NEWPORT OFFICE SITE B (DEVELOPMENT AGREEMENT NO. 161 WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City") for a General Plan Amendment (GPA 97 -3(B)) and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the GPA 97 -3(B) would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit "DA -1"; and WHEREAS, the Development Agreement provides for certain rights, obligations, and assurances on the parts of both the City and the Developer; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Development Agreement; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Development Agreement, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. 0 0 THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the project addressed by the Development Agreement. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a Development Agreement for the proposed project. The Development Agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items. Although this discretionary action was not identified in the project description contained in the Draft EIR a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the Development Agreement. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: DEVELOPMENT AGREEMENT. a. The Development Agreement is, assuming voter approval of GPA 97 -3(B), consistent with the objectives, policies, general land uses, and programs of the General Plan of the City.. 0 0 b. The City Council hereby approves and adopts the Development Agreement, attached hereto as Exhibit "DA -1". The Mayor is hereby authorized to execute the Agreement, and, assuming voter approval of GPA 97 -3(B), the City Clerk shall cause a copy thereof to be recorded with the Orange County Recorder. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall not become effective until the City Clerk certifies to the City Council that the GPA 97 -3(B) has been approved by the electorate pursuant to Section 423 of the City Charter. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on July 10, 2001 and adopted on July 24, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS O'Neil, Ridyewav, Glover, Mayor Adams NOES, COUNCIL MEMBERS Heffernan, Bromberg, Proctor ABSENT COUNCIL MEMBERS None MAYOR 9 Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 0 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND KOLL CENTER NEWPORT NUMBER A Approved July 24, 2001 Ordinance No. 2001 -11 0 0 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is executed as of _ 2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH KOLL CENTER NEWPORT NUMBER A ( "OWNER "). RECITALS. ( "CITY "), and 1.1 Property /Ownership Status. OWNER owns all of the real property ( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of approximately five (5) acres. 1.2 Planning Status. The Property comprises a portion of Office Site B" known as "Professional and Business Office Site B" of the Koll Center Newport Planned Community, which is currently entitled with approximately one million (1,000,000) square feet of office development. 1.3 Proiect. OWNER has asked CITY to approve a general plan amendment, zoning amendment and related permits that would authorize the construction of approximately two hundred and thirty-five thousand (235,000) square feet of additional office use on the Property. 1.4 Hearings. The Newport Beach Planning Commission (Planning Commission) and the Newport Beach City Council (City Council) have conducted all required public hearings on the Project and certified an Environmental Impact Report for the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance with applicable provisions of State law and the Newport Beach Municipal Code. 1.5 General Findings. The Planning Commission and City Council have determined that the Project and all Project Approvals are consistent with all elements of the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the CEQA Guidelines. The Project and all Project Approvals are also consistent with all other relevant plans, policies, ordinances, resolutions and regulations of the CITY. 1.6 Affordable Housing. The CITY and OWNER have determined that the Project does not constitute a residential development subject to the terms and conditions of the CITY's Housing Element. Accordingly, no present or subsequently enacted affordable housing requirement or housing in lieu fee shall be required of OWNER. 1.7 Purpose of Agreement. The purposes of this Agreement are as follows: F:\ users \cat\shared \Burnham \Koll\DA062601.doc (a) To provide for the orderly completion of development of the Property consistent with the Project Approvals, Project Conditions and this Agreement. (b) To provide the CITY and OWNER with certainty that the Project will be developed and maintained as contemplated by the Project Approvals, Project Conditions and the Development Plan. (c) To provide assurance to OWNER that OWNER may proceed with the Project, subject to compliance with Project Conditions, in accordance with the laws, policies, rules, ordinances, resolutions and regulations of the CITY in effect as of the Approval Date. (d) To strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic cost of development, mitigate the impacts of development, and provide public benefits in excess of those normally secured through the planning process. 1.8 Authorization. This Agreement is authorized by, and is consistent with, the provisions of §§ 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.9 Police Power. The City Council has determined that this Agreement: (a) Is in the best interests of the health, safety and general welfare of the CITY, its residents and the public; (b) Was entered into pursuant to, and is a valid exercise of, the CITY's police power; and (c) Has been approved in accordance with the provisions of State and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On , 2001, after giving appropriate notice and holding all appropriate public hearings, the City Council conducted the first reading of Ordinance No. authorizing the CITY to enter into this Agreement. The City Council approved the Adopting Ordinance on , 2001, after giving appropriate notice and holding all appropriate public hearings. The Adopting Ordinance shall be considered effective as specified in Section 8.1. 1.11 CEQA Review. The City Council has independently reviewed, approved and certified the EIR for the Project. In so doing, the City Council determined, among other things, that the EIR was prepared in full compliance with CEQA and the CEQA Guidelines. The City Council also adopted all feasible mitigation measures, made 3 0 0 appropriate findings and adopted a statement of overriding considerations with respect to any significant effect that could not be mitigated to a level of insignificance. The City Council also adopted a Mitigation Monitoring Program for the Project as required by CEQA and the CEQA Guidelines. 2. DEFINITIONS. 2.1. "Adopting Ordinances" refers to: (a) Ordinance No. 2001- adopted by the City Council on , 2001, approving Zoning Amendment No. 905 and this Agreement; (b) Resolution No. 2001- adopted by the City Council on 2001, approving GPA 97 -3(B); (c) Resolution No. 2001- adopted by the City Council on , 2001, approving Traffic study No. 119 and making findings pursuant to Chapter 15.40 of the Code; (d) Resolution No. 2001- adopted by the City Council on , 2001 certifying the EIR as fully compliant with CEQA and the CEQA Guidelines, adopting all feasible mitigation measures, and containing the statement of overriding considerations. 2.2. "Agreement" refers to this Development Agreement. 2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith compliance with this Agreement, as set forth in Section 7. 2.4 "Approval Date" means 2001, the date on which the City Council approved the Adopting Ordinances. 2.5 "Assign" means all forms of use of the verb "assign" and the nouns "assignment" and "Assignee" shall include all contexts of hypothecation, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California. 2.7 "CITY" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the CITY. 4 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Article 10. 2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while an "OWNER Default' refers to a Default by OWNER. 2.12. "Develop" means all forms of use of the verb "develop" and the noun "Development ", whether or not capitalized, means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and parking facilities and improvements. "Develop" or "Development" also includes . the maintenance, repair, alteration, reconstruction or redevelopment of any building, structure, improvement, landscaping or facility after the initial construction and completion so long as consistent with the Project Approvals, the Development Plan and this Agreement. "Develop" or "Development" also includes the use of the Property in a manner consistent with the permitted general, primary, and secondary uses as set forth in the PC Text and the Development Plan. 2.13. "Development Plan" means and constitutes the plan for the development of the Property, as embodied and stated in the Project Approvals, Project Conditions and this Agreement. 2.14. "Effective Date" shall be the date this Agreement becomes effective as specified in Section 8.1. 2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No. 99091120) prepared for the Project and certified as fully compliant with CEQA and the CEQA Guidelines by the CITY Council on the Approval Date. 2.16. "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 7.4. 2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are as follows: Exhibit: Description: A Legal Description of the Property B Map depicting the Property 11 01 0 C Project Approvals comprising the Development Plan D List of Project Conditions 2.18. "Existing General Regulations" means those General Regulations approved by the CITY on or before the Approval Date (irrespective of their Effective Date) and not rescinded or superseded by CITY action taken on or before the Approval Date. 2.19. "Future General Regulations" means those General Regulations adopted or approved by the CITY in any way, after the Approval Date. 2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the CITY on or before the Approval Date as part of the Project Approvals, Project Conditions or the Development Plan. 2.21. "General Plan Amendment" or "GPA" means General Plan Amendment 97 -3(B) amending the General Plan of the CITY as approved by the City Council on , 2001 if and when approved by the voters pursuant to Section 423 of the City Charter. 2.22. "General Reg ulations "means all laws, ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and permitted uses of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property and provisions relating to applicable fees, charges, assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO), the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water and sewer connection fee ordinances. General Regulations do not include any CITY ordinance, resolution, code, rule, regulation or official policy identified in or governing the following ( "Governmental Exceptions'): (a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 (except Chapters 15.38 and 15.40) and of the Newport Beach Municipal Code; (b) Property taxes and assessments; (c) The control and abatement of Nuisances (subject to the provisions of Section 3.4); (d) The exercise of the power of eminent domain; 11 0 0 (e) The provision of, or charges for, water, sewer, refuse, police, fire and other municipal services that are generally applicable to all owners or lessees of commercial property in the CITY; and (f) The manner in which property is used that are related to the amount and time of noise from permitted activities, the use of alcohol, and the nature and timing of special events. 2.23. "Governmental Reservations" refers to those actions that CITY may take that may affect the Project or the operation of the Project, as follows: (a) Enforcement of the specific provisions, limitations and restrictions contained in the Project, Project Approvals, Development Plan and Project Conditions; (b) Enforcement of the provisions and conditions of this Agreement; (c) Enforcement of, or pursuant to, Governmental Exceptions or Governmental Reservations; and (d) Enforcement of Existing General Regulations 2.24. "Include" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.25. "OWNER" refers to Koll Center Newport Number A, a California general partnership. 2.26. "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all or a portion of OWNER's interest in the Property is used as security. 2.27. "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY or OWNER. 2.29. "PC Text' refers to the "Koll Center Newport Planned Community Development Plan" as amended by the City Council on the Approval date and any subsequent modification of the PC Text with respect to the Property that are approved by the City Council and to which OWNER consents. Except for the modifications expressly permitted by the terms of this Agreement, OWNER shall be under no obligation to consent to modifications of the PC Text 2.30. "Planning Commission" refers to the Planning Commission of the CITY. 7 9 0 2.31. "Project" refers to the existing and proposed development of the Property pursuant to, and consistent with the Project Approvals, consistent with and subject to Project Conditions, and as described in the Development Plan. The Project includes those improvements existing on the Property as of the Approval Date. 2.32. "Project Approvals" refers to all approvals, amendments, permits, licenses, consents, rights and privileges, and other actions required or authorized to be approved, issued or taken by CITY in connection with development of the Property, including but not limited to the following discretionary actions: (a) General Plan Amendment No. 97 -3(B); (b) Zoning Code Amendment No. 898 (Koll Center Newport Planned Community Development Plan); (c) Traffic Study No. 119; and (d) Environmental Impact Report No. 158 (State Clearinghouse No. 99091120). Project Approvals also means any grants of easements, vacations, subdivisions, resubdivisions, lot line adjustments or other actions necessary to the implementation of the Project. Project Approvals also include any and all discretionary or ministerial permits related to construction of the Project including grading permits, building permits, and occupancy permits. 2.33. "Project Conditions" means all conditions to OWNER's right to proceed with Development pursuant to the Project Approvals, including the provisions of this Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by the City Council, conditions to approval of the Traffic Study, conditions to Project Approvals, Existing General Regulations and Governmental Reservations. The Project Conditions are generally described in Exhibit D. The term Project Conditions does not included the requirement for voter approval pursuant to Section 423 of the City Charter. 2.34. "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B ". 2.35. "Subsequent Development Permits" means all Project Approvals granted or issued by the CITY subsequent to the Approval Date in connection with development of the Property. 2.36. "Vested Entitlement" or "Entitlement" refers to the development rights granted OWNER pursuant to this Agreement and the Project Approvals that are subject to Project Conditions. D 3. DEVELOPMENT OF THE PROPERTY 3.1 Development Program. Upon the Effective Date, this Agreement vests OWNER's right to proceed with the development described in the Project Approvals and Development Plan. OWNER acknowledges that its right to proceed with the Vested Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants no assurance that OWNER will receive necessary permits or approvals from any other public agency with jurisdiction over the Project or that Project Approvals will not be subject to and affected by legal or other challenges or procedures initiated by third parties. (a) Permitted Uses. The Property shall be used and developed only in the manner provided in the Project Approvals and the Development Plan. CITY acknowledges that, from time to time, OWNER may seek and obtain, in accordance with applicable provisions of State and local law, minor amendments to the Development Plan and the Project Approvals. The Planning Director of the CITY ( "Planning Director") shall determine, subject to appeal by OWNER to the Planning Commission, whether a proposed amendment is a "minor amendment" for purposes of this Agreement. A minor amendment is one that does not increase vehicular trips or other environmental impacts associated with Project Approvals or the Development Plan. (b) Permitted Density of Development. OWNER shall have the vested right to develop the Property and receive the CITY's approval of all Project Approvals consistent with the permitted density and level of intensity authorized by the Project Approvals and as described in the Development Plan. The CITY shall not impose any condition on any Project Approval that reduces the permitted density and level of intensity allowed in the Development Plan and discretionary Project Approvals. CITY acknowledges that the boundaries of the parcels shown on the Development Plan and the Project Approvals are approximate and are subject to minor variation prior to recordation of final map(s) for the Project, provided OWNER complies with the applicable procedures for subdivision maps. CITY may impose standard conditions of approval on any subdivision or resubdivision requested by OWNER so long as the condition(s) do not reduce the permitted density or intensity, or substantially increase the cost of the development, allowed in the Project Approvals and described in the Development Plan. (c) Maximum Height and Size of Structures. OWNER shall have the vested right to develop the Property with the maximum height and size of structures as set forth in the Development Plan and the Project Approvals. 3.2 Compliance with Proiect Conditions OWNER acknowledges that City Council approval of the Project Approvals, the Development Plan and this Agreement is subject to compliance with the Project Conditions. The Project Conditions are, among other things, designed to minimize or eliminate any adverse impacts of the Project and protect and enhance the environment. In certain instances, the Project Conditions exceed those that might otherwise be appropriate under "nexus" and "rough proportionality" tests recently articulated by the courts. By entering into this Agreement, OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any Project Conditions imposed by the CITY after the Effective Date shall be consistent with the Project Approvals, Development Plan and this Agreement. Owner also agrees to abide by any conditions or modifications to the design of the Project resulting from Project Conditions that authorize review by the City subsequent to the Approval Date. 3.3 Compliance with General Regulations OWNER shall comply with the Existing General Regulations. Except as otherwise specified in this Agreement, OWNER shall not be obligated to comply with any Future General Regulations that are in conflict with the Development Plan or this Agreement. Any Future General Regulation(s) that are inconsistent with this Agreement and /or the Development Plan and which do not fall within the definition of Governmental Reservations or Governmental Exceptions shall not be applicable to the development or use of the Property. With respect to Existing General Regulations that require the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect on the Approval Date subject to any automatic increases or decreases mandated by the text of the Existing General Regulation as of the Approval Date. OWNER shall, however, comply with: (a) any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan or increase OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether adopted before or after the Approval Date by the CITY, which are in effect at the time applications for specific Project Approvals are submitted. 3.4 Public Health and Safety /Uniform Codes This Agreement shall not prevent the CITY from adopting, and applying to the Project, Future General Regulations, including Uniform Codes (as referred to above), that are based on recommendations of a multi -state professional organization relating to the specifications for the constructions of improvements ("Building Codes ") and become applicable throughout CITY. This Agreement shall not prevent the CITY from adopting, and applying to the Project, conditions inconsistent with the Development Plan or Project Approvals, when the conditions are adopted by the City Council after a noticed public hearing and pursuant to a determination by the City Council that the conditions are necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a determination of Nuisance unless the OWNER has been given notice of, and the right to present evidence at, a public hearing. Any III] 0 determination of Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must be supported by substantial evidence in the record of the hearing. 4. BENEFITS TO OWNER. 4.1 Right to Develop. Upon the Effective Date and during the term of this Agreement, OWNER shall have a vested right to develop, and receive building and occupancy permits for construction on, the Property to the full extent permitted by the Project Approvals and the Development Plan subject to the Project Conditions. CITY shall only take action with respect to the Property that complies and is consistent with the Project Approvals and the Development Plan unless OWNER gives its written consent to the action or CITY is permitted to take the action pursuant to this Agreement. OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY shall not impose or increase any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of and, or any other type of exaction) on the Project, except as expressly permitted by this Agreement, Existing General Regulations, Governmental Reservations or Governmental Exceptions. However, CITY may impose or increase a condition or requirement when such action is required (as opposed to permitted) by State or federal law and then only to the minimum extent and duration necessary to comply with State or federal law. Except as otherwise provided by this Agreement, the ordinances, plans, resolutions, and policies governing the permitted use and development of the Property shall be those described in the Project Approvals and the Development Plan. 4.2 Reservations or Dedications of Land. No dedication or reservation of any portion of the Property shall be required of OWNER in conjunction with the application or issuance of any Project Approval except as may be provided in the Project Approvals, Project Conditions, Development Plan or this Agreement. 4.3 No Additional Traffic Related Fees or Conditions. OWNER's satisfaction of the provisions of Article 5 shall be deemed full compliance with all Existing General Regulations, Future General Regulations and CEQA relative to traffic impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or increase the amount of any traffic- related fee, charge, dedication, or improvement relative to, or as a condition to, development of the Project. 4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior boundaries of the Property to the extent, and subject to the same conditions, that capacity is provided to similarly situated commercial property in the CITY. OWNER agrees to accept, during the term of this Agreement, all storm drain inflow from facilities in place as of the Effective Date. 4.5 Park Fees. OWNER and CITY acknowledge that the Project may generate some incidental demand for, and usage of, park and open space land within 11 0 0 the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter 19.50 of the Newport Beach Municipal Code) and any Existing General Regulation relating to the dedication of land for park or open space purposes or the payment of park or open space fees. 4.6 Future Impact Fees. Conditions. and Exactions. So long as OWNER is not in default under this Agreement, CITY will not impose, or increase the amount of, any impact fee, condition, mitigation measure, or exaction other than as expressly required by the Project Approvals, Project Conditions, Existing General Regulations, the Development Plan, or this Agreement. CITY shall not, without the written consent of OWNER, form, or cause the formation of, any new governmental entity for the purpose of imposing fees, conditions or exactions the CITY could not directly impose pursuant to this Section. CITY may form or cause the formation of an assessment district (or similar vehicle) comprised of the Property and other property in the area for the purpose of funding public improvements that provide a special benefit to the Property. However, CITY may not include the Property in any assessment district formed to fund construction of public improvements that CITY is prohibited from imposing on OWNER because of this Agreement. 4.7 Time for Construction and Completion of Proiect. OWNER shall have the right to develop the Project in the manner and at the time that OWNER deems appropriate in the exercise of its business judgment. The Parties acknowledge that OWNER cannot predict the timing of the development of the Project because of numerous factors not within the control of OWNER, such as market demand, economic conditions, interest rates and competition. Subject to compliance with the provisions of this Agreement and Project Conditions, OWNER shall, at any time during the term of this Agreement, be entitled to apply for, and receive, Project Approvals consistent with the Development Plan. 4.8 Development Standards. Because the Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the Existing General Regulations and Future General Regulations is neither necessary nor appropriate. The terms and provisions of the Project Approvals, Development Plan or this Agreement shall prevail in the event of any conflict with Existing General Regulations or Future General Regulations. 4.9 Tentative Maps. (a) Improvement Security. As a condition of approving a final subdivision map or any future resubdivision for all or a portion of the Property, the CITY may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to the Municipal Code and the Subdivision Map Act. Nothing in this Agreement shall be construed as altering or relieving OWNER of any obligation imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement requirements, exactions or 12 0 0 other conditions of approval of a subdivision map, parcel map or lot line adjustment shall be consistent with this Agreement but CITY may impose standard conditions of approval generally applicable to similar projects subject to the provisions Section 3.1(b). (b) Expiration. Any current or future tentative maps for resubdivision of the Property shall expire concurrently with the termination of this Agreement or after the maximum period for the expiration of tentative maps authorized by Government Code § 66452.6, whichever is later. Should the time periods authorized by Government Code § 66452.6 be lengthened after the execution of this Agreement, OWNER shall be entitled to further extensions of any tentative subdivision map applicable to the Property, to the maximum extent authorized by law. (c) Resubdivisions. The Parties acknowledge that resubdivisions, lot line adjustments, or similar modifications may be necessary to develop the Project and are contemplated by this Agreement. These modifications or adjustments shall be approved provided they are in substantial conformance with the Development Plan and the Project Approvals. 4.10 Processing and Issuance of Permits. (a) Processing of Permits. As a material term of this Agreement benefiting OWNER, the CITY shall promptly accept for processing /review, and expeditiously approve, permit applications for the development and use of the Property that are in substantial conformance with the Project Approvals, Development Plan, Existing General Regulations, and this Agreement. (b) Issuance of Ministerial Project Approvals. CITY shall issue to OWNER all necessary use, building, occupancy, and other permits and approvals upon request, provided that applications are submitted in accordance with the Existing General Regulations and are in substantial conformance with the Project Approvals, Development Plan and this Agreement. (c) Vesting of Project Approvals. Any permit, license or approval issued pursuant to this Agreement shall be vested and deemed a Project Approval when granted. 4.11 Future Approvals. The future approval or issuance of any Project Approval that is consistent with the Development Plan, including any permit, license or authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations and similar actions shall not require an amendment of this Agreement 13 0 0 S. PUBLIC IMPROVEMENTS 5.1 Regional Transportation Facilities Fees. OWNER acknowledges that CITY is bound by provisions of ordinances, agreements, rules and regulations related to the financing, construction and operation of major transportation improvements that benefit large areas of Orange County including the Property. OWNER shall comply with the provisions of all such ordinances, agreements, rules and regulations, including the payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers Agreement and /or the Transportation Corridor Agency (collectively, the "TCA "). OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition and /or amount of fees through any procedure adopted or used by the TCA for that purpose. OWNER shall also have the right to commence litigation relative to the amount, method of calculating or timing of any fees or the procedure utilized by the TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless with respect to any loss, damage claim or liability arising out of any litigation commenced by OWNER that is related to this Section. OWNER agrees that satisfaction of the provisions of this Section is a condition to any discretionary or ministerial Project Approval. CITY shall not be required to issue any discretionary or ministerial Project Approval until OWNER provides proof that all fees required to be paid to the TCA, whether pursuant to ordinance, settlement or judgment, have been paid. 5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are based on the one thousand seven hundred and seventy (1770) additional average daily trips generated by the Project multiplied by the current per trip fee of one hundred thirty three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the time specified in Chapter 15.38 of the Code. 5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY for the construction of the circulation system improvements identified in Traffic Study 119 (TPO Improvements). OWNER's contributions to the funding of the TPO Improvements equal or exceed the requirements of the TPO and OWNER's contributions to the funding of the TPO Improvements is in addition to all other fees, charges or contributions required by this Agreement and /or existing General Regulations. OWNER's contribution to the TPO Improvements shall be the sum of seventy thousand dollars ($70,000) to fund construction of a second northbound (MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn lane and the construction of a second northbound (MacArthur) right turn lane at the MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary 14 0 0 plans, specifications and cost estimates for the MacArthur Project. The MacArthur Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree intersection as required by the TPO. The MacArthur Project is anticipated to cost one million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution to the MacArthur Project represents four percent (4 %) of the cost of the TPO improvements and has been calculated as specified in the TPO. CITY agrees to provide any supplemental funds necessary to ensure that construction of the MacArthur Project is complete no later than one year after occupancy of any development authorized by the Project Approvals. 5.4 Long Range Traffic Improvements. (a) Introduction. The EIR evaluated the "long term" impacts of the Project on major intersections in Newport Beach and Irvine (Long -range Analysis). The Long -range Analysis assumed construction of all entitlement and all circulation system improvements authorized in the Land Use and Circulation Elements of the Newport Beach General Plan (including the TPO Improvements). The Long -range Analysis also assumed the construction of entitlement and circulation system improvements contemplated for the year 2020 in the Land Use and Circulation Elements of the Irvine General Plan. The Long- range Analysis concluded that the Project would, depending on the construction of the J5 Ramp, have significant long -range adverse traffic impacts on four (4) or five (5) major intersections. The potential cost of mitigating the long - range impacts of the Project on intersections in the airport area could be significant. For example, mitigation of the impact of Project trips on service levels may require the construction of a grade separation and access ramps at the MacArthur /Jamboree intersection. The CITY has prepared conceptual plans for a grade separation at the Jamboree /MacArthur intersection and very preliminary cost estimates indicate that improvement costs, exclusive of right -of -way could be in the range of fifteen million dollars ($15,000,000) to twenty million dollars ($20,000,000). Moreover, the approval of the Project will result in an increase in average daily trips in the vicinity of the Project that may require other property owners to make improvements pursuant to the TPO that would not be necessary but for the Project. (b) OWNER Commitments. OWNER agrees to do the following: (i) Pay the CITY, within sixty (60) days after the Effective Date, forty -five cents ($.45) per square foot of additional entitlement granted pursuant to the Project Approvals to be used by the CITY solely for the purpose of funding a Planning Study for the Airport Area. 15 • • (ii) Pay the CITY the sum of eight dollars ($8.00) per square foot of additional entitlement authorized by the Project Approvals (Mitigation Fee). In the event a building permit is not issued within twelve (12) months after the Effective Date, the amount of the Mitigation Fee shall be increased by fifty cents ($.50) every twelve months after the Effective Date. (c) Payment OWNER shall pay the Mitigation Fee prior to the issuance of any building permit for the Project. (d) Compliance. OWNER's compliance with the provisions of this Section shall relieve OWNER of any obligation to participate in any circulation system funding program developed and implemented by the CITY including a specific area plan or major thoroughfare program for the airport area. OWNER's compliance with the provisions of this Article shall constitute full and complete satisfaction of any obligation to make or fund, in whole or in part, any CITY circulation system improvement as a condition to development of the Project. 5.5 Fire Station Fee. The EIR concludes that fire suppression service to the Project will not meet CITY response time standards in the event of the closure of OCFA Station 27. CITY has conducted studies of fire service needs in the airport area and options for providing fire suppression and paramedic services consistent with CITY standards. The options for providing fire suppression and paramedic services include the construction, equipping and staffing a new fire station in the airport area or immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current estimated cost of constructing and equipping a New Fire Station is two million dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site, the construction of the New Fire Station, and /or the equipping /staffing of the station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading or construction on the Property pursuant to this Agreement. Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire suppression facility impact fee program (Program) for area served by the New Fire Station. 5.6 Circulation Study. Prior to the issuance of a building permit, OWNER shall prepare a study to evaluate the adequacy of on -site circulation and the impact of , that circulation and vehicle ingress and egress on traffic flow on or through adjacent roadways and intersections. The study shall be conducted under the direction, and to the satisfaction, of the Transportation and Development Services Manager. OWNER shall, at OWNER's sole cost and prior to occupancy, incorporate all feasible study recommendations relative to ensuring adequate on -site circulation. OWNER shall also, at OWNER's sole cost and prior to occupancy, make all feasible improvements to mitigate any significant impact of vehicle stacking on traffic flow on or through adjacent roadways or intersections. 16 6. SPECIAL PROVISIONS 6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley Burns Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales (Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER directly pays the Tax on all Eligible Transactions. 6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and Use Tax Program (Program) that, at a minimum, has the following components: (a) OWNER's commitment to, during the term of this Agreement, maintain a direct pay permit or similar authorization to directly pay Tax on all Eligible Transactions; (b) procedures that Owner will implement to maximize the amount of Tax paid to the City with respect to construction of the Project. (c) procedures pursuant to which OWNER will provide City with information identifying all buyers and sellers with whom OWNER and /or OWNER's contractors do business. The Program shall also contain other information relevant to OWNER's compliance with the terms and conditions of this Agreement pertaining to the direct payment of Tax. OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the Revenue Manager of CITY for approval. OWNER shall modify the Program in accordance with any and all reasonable recommendations of the Revenue Manager that are consistent with the intent of this Section. OWNER shall, during the term of this Agreement, fully implement the Program approved by the Revenue Manager. 7. ANNUAL REVIEW. . 1. 7.1 CITY and OWNER Responsibilities. Each Party shall review the other Party's good faith substantial compliance with this Agreement once each year (the "Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an annual review statement describing its actions in compliance with this Agreement and the Development Plan. 7.2 Procedure. In connection with the Annual Review, each Party shall have a reasonable opportunity to advise the other of alleged or potential breaches of this Agreement or the Development Plan, to explain the basis for that Party's position, and to receive from the other Party a statement of its position. A Party may issue a written "Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of the Annual Review, that Party concludes that the other Party has not complied in good 17 faith with the terms of this Agreement or the Development Plan. The Party receiving a Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the sixty (60) day period, the Party alleging the non - compliance may pursue the remedies provided in this Agreement. 7.3 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures related to the Project. 7.4 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature of the Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign an Estoppel Certificate on behalf of the CITY. 7.5 Failure to Conduct Annual Review. The failure to conduct an Annual Review shall not constitute a Default of either Party or be asserted as a Default by either Party. 8. GENERAL PROVISIONS 11 1 8.1 Effective Date. This Agreement shall bind the Parties as of the Approval Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge and agree that none of the Project Approvals becomes effective unless the voters approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to the City Council the results of any election conducted pursuant to Section 423 of the City Charter. 8.2 Term of Agreement. The term of this Agreement (the 'Term ") shall begin on the Effective Date and continue for a term of twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement, or extended pursuant to the provisions and conditions of Section 11. 18 i • 8.3 Assignment. OWNER has the absolute right to assign its rights and /or delegate its obligations under this Agreement and the Development Plan as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as OWNER owns/leases any part of the Property, OWNER may (at its election) assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. if that occurs, however, the benefits assigned shall remain subject to the performance by OWNER of the corresponding obligations. Upon any assignment of all or a portion of the Property, OWNER shall be released from all obligations under this Agreement that relate to the portion of the Property being transferred as of the date the assignment is effective. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the Assignee. If an Assignee is in Default, then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii) be a basis for an enforcement action against them. 8.4 Amendment of Agreement. (a) Consent. Subject to the provisions of Subsection 8.4(b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code, the Newport Beach Municipal Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) Amendments. The Parties acknowledge that OWNER may determine that amendments to the Development Plan and /or Project Approvals are appropriate and desirable. In such event, OWNER may apply in writing for an amendment to prior Project Approvals or the Development Plan. CITY shall process and act on the application. CITY shall have no obligation to grant any application that amends the permitted land uses, the overall intensity or density of the Project, or otherwise is an amendment of the Development Plan that could have one or more significant adverse environmental impacts. Any approved amendment shall be incorporated into this Agreement by reference and may be further amended from time to time as provided in this Section. 8.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns, provided, however, in the event of a Default the remedies shall be limited to those specified in Section 10.7. 8.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: 19 (a) Expiration of the term in accordance with Section 8.2; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the CITY to set aside, withdraw, or abrogate the CITY's approval of this Agreement or any material part of the Project or Project Approvals; or (c) The effective date of a Party's election to terminate the Agreement as provided in Section 10.3 of this Agreement. 8.7 Right to Terminate Upon Specified Events. Notwithstanding any other provision of this Agreement, OWNER retains the right to terminate this Agreement upon thirty (30) days written notice to CITY in the event that OWNER reasonably determines that continued development of the Project consistent with the Development Plan has become economically infeasible due to changed market conditions, increased development costs, burdens imposed by the CITY or other governmental entity as conditions to future discretionary approvals of the Project consistent with this Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by OWNER to be inconsistent with the Development Plan, or similar factors. 9. CONFLICTS OF LAW. 9.1 Conflict with State and Federal Laws and Regulations. Where State or federal law or regulation prevents compliance with one or more provisions of this Agreement, those provisions shall be modified to the minimum extent necessary to comply with the State or federal laws or regulations, and the modified Agreement shall remain in effect, subject to the following: (a) The CITY shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding, based on substantial evidence in the record of a public hearing where OWNER has notice and an opportunity to present evidence, that the modification is required (as opposed to permitted) by State and federal law or regulation; (b) The modifications must be limited to those required (as opposed to permitted) by the State or federal law or regulation; (c) The modified Agreement must be consistent with the State or federal law or regulation requiring the modification; (d) The intended material benefits of this Agreement must still be received by each of the Parties after modification; and 20 0 0 (e) The modification and any applicable local, State, or federal law or regulation does not render the modified Agreement impractical to enforce; 9.2 Controlling Law. This Agreement shall be governed by the laws of the State of California. 10. DEFAULT, REMEDIES AND TERMINATION. 10.1 General Provisions. In the event of a Default the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period"). During the Cure Period, the Party charged shall not be considered in default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period then a Default shall be deemed not to exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question is not susceptible of cure within the applicable Cure Period, and the Defaulting Party commences its cure within the Cure Period and diligently pursues the cure to completion. 10.2 Option to Institute Legal Proceedings or to Terminate. The noticing Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the noticing Party intends to terminate the Agreement and the alleged Default is not cured within the Cure Period. The City Council shall, no later than forty-five (45) days after a Notice of intent is served on either Party, hold a public hearing in the manner specified in the Government Code and /or the Municipal Code to consider and review the alleged Default. 10.3 Notice of Termination. After the public hearing described in Section 10.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party. The Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council at the public hearing establishes the continued existence of a Default after the Cure Period. The findings of the City. Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 12.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 10.5 Default by OWNER. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have 21 no obligation to perform any of CITY's obligations under this Agreement (as opposed to the CITY's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of competent jurisdiction. The CITY's election not to perform as permitted by this provision shall not constitute a Default. 10.6 Default by the CITY. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have no obligation to perform any of OWNER's obligations under this Agreement, unless otherwise ordered by a court of law. However, OWNER shall not be entitled to receive Project Approvals or take any other action inconsistent with provisions of the Development Plan, the Newport Beach General Plan, or relevant zoning ordinances unless otherwise permitted by law. OWNER's election not to perform as permitted by this provision shall not constitute a Default. 10.7 Specific Performance. (a) The Parties agree that, except as provided in Subsection 9.7.b., the loss by either of them of their respective rights under this Agreement would not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and/or injunctive relief. (b) Notwithstanding the foregoing, in the event any development fees or taxes are imposed on development of the Property other than those authorized pursuant to this Agreement or the Development Plan, OWNER shall be entitled to recover from CITY restitution of all improperly assessed fees or taxes, together with interest thereon at the maximum allowable non - usurious rate from the date such sums were paid to CITY to the date of restitution. 10.8 Effect of Termination. The termination of this Agreement shall not affect the rights, duties and obligations, if any, of any successor to OWNER to comply with the Project Approvals. . 11. ENCUMBRANCES AND RELEASES ON PROPERTY. 11.1 Discretion to Encumber. This Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvements. 11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon written request to CITY, be entitled to receive from CITY written notification of any default by Owner of the performance of OWNER's obligations under this Agreement 22 0 0 which has not been cured within thirty (30) days following the date of the Notice of such default. (a) Notwithstanding OWNER's default, this Agreement shall not be terminated by CITY as to any Mortgagee to whom Notice is to be given and to which either of the following is true: (i) The Mortgagee cures any default by OWNER involving the payment of money within sixty (60) days after the Notice of default; provided, however, that if any such default cannot, with diligence, be cured within the sixty (60) day period, then the Mortgagee shall have additional time as may be reasonably necessary to cure the default if the Mortgagee commences the cure within the sixty (60) day period and diligently pursues the cure to completion. (ii) As to defaults requiring title or possession of all or a portion of the Property to cure: (i) the Mortgagee agrees in writing, within sixty (60) days after receipt from CITY of the written Notice of default, to perform the proportionate share of OWNER's obligations under this Agreement allocable to that part of Property in which the Mortgagee has an interest conditioned upon the Mortgagee's acquisition of the required portion of the Property by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the Mortgagee commences foreclosure proceedings to reacquire title to the Property or applicable portion thereof within the sixty (30) days and thereafter diligently pursues foreclosure to completion; and (iii) the Mortgagee promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event of any Mortgagee records a Notice of default as to its mortgage or deed of trust, CITY shall consent to the assignment of all of OWNER's rights and obligations under this Agreement to the Mortgagee or to any purchaser of OWNER's interest at a foreclosure or trustee sale and OWNER shall remain liable for such obligations unless released by CITY or unless the applicable portion of OWNER's Property is transferred. (b) Notwithstanding Subsection 11.2.a. of this Agreement, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving OWNER, the times specified in Subsection 112a of this Agreement for commencing or prosecuting foreclosure or other proceedings shall be tolled during the period of the prohibition. (c) OWNER's execution or breach of this Agreement shall not defeat, render invalid, diminish or impair the lien of any existing or future 23 mortgage or deed of trust on OWNER's Property made in good faith and for value. 11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no Mortgagee shall have an obligation or duty under this Agreement to perform the obligations of OWNER or other affirmative covenants of OWNER or to guarantee such performance. No Mortgagee shall be liable for any Default or monetary obligations of OWNER arising prior to acquisition of title to the Property by the Mortgagee or their respective successors or assigns. However, to the extent any covenant to be performed by OWNER is a condition to the performance of a covenant by CITY, the performance shall continue to be a condition precedent to CITY's performance. In the event a Mortgagee elects to develop the Property in accordance with the Development Plan, the Mortgagee shall be required to assume and perform the obligations or other affirmative covenants of OWNER under this Agreement. 12. MISCELLANEOUS PROVISIONS. 12.1 Notices. All Notices shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; and, (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt. Notices shall be addressed as follows: To the CITY: City Manager - City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Manager To OWNER: Koll Center Newport Number A 4343 Von Karman Ave. Newport Beach, CA 92660 Attn: Don Koll CC: Starpointe Ventures Either party may give the other a "Notice of a New Address" to modify this Subsection. 12.2 Enforcement Delay: Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non - performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by 24 9 0 governmental entities other than CITY, suspension of rights in accordance with the existence of unforeseen circumstances, governmental moratorium other than a moratorium enacted by CITY, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon, but in no case shall the extension of time for performance exceed six (6) months. 12.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the prior intent of the Parties and the Party substantially benefited by the material provision does not waive its rights under the - unenforceable provisions, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 5 are deemed "material ". 12.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter. This Agreement supersedes all negotiations and previous offers and understandings between the Parties regarding the subject matter. 12.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything that has the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to obtain any permits from other public agencies that may be required for development of the Project. OWNER may challenge any ordinance, measure, moratorium, or other limitation in a court of law if litigation is necessary to protect the development rights vested in the Property pursuant to this Agreement. 12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably be relying on CITY's performance of its covenants in this Agreement when OWNER invests money and effort in construction of the Project. 12.10 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute documents, with acknowledgment or affidavit if reasonably required, and take any other action reasonably necessary to implement the 25 terms and conditions of this Agreement or permit development of the Project in accordance with the Development Plan. 12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and assigns of the Parties. 12.12 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the Sections and Subsections are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement does not, and is not intended to, impermissibly contract away the police power, legislative authority or governmental functions of the CITY in general or with respect to the Property. 12.13 Authority to Execute. The person executing this Agreement on behalf of OWNER warrants and represents that he /she has the authority to do so and the authority to bind OWNER to the performance of OWNER's obligations under this Agreement. 12.14 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not be unreasonably withheld. 12.15 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 12.16 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the CITY and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement s is a ministerial act and the failure of the CITY to record the Agreement as required by this Section and Government Code § 65868.5 does not make the Agreement void or ineffective. 12.17 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California. 12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 26 0 0 12.19 Relationship of the Parties. The contractual relationship between CITY and OWNER arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of any legal action filed and prosecuted by any person or entity other than the Parties that challenges the validity or manner of approval of this Agreement, the Project Approvals or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and hold harmless the CITY and its officers and employees with respect to any costs, expenses, judgment, damages or award, including an award of attorney fees and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER acknowledges and agrees that CITY has fully complied with all applicable statutes, ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and Existing General Regulations in the initiation, processing, evaluation and approval of all Project Approvals. OWNER's obligations pursuant to this Section shall commence as of the Approval Date and continue for the period specified in Section 8.2 or until this Agreement terminates, whichever occurs first. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of the CITY or its officers or employees that occurred on or before the Approval Date. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud, willful misconduct or violation of law by the CITY or its officers and employees that occurs after the Approval Date. 12.21 Payments. Any payment due pursuant to this Agreement shall bear interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date due until paid with interest compounded monthly. Dated: .2000 CITY OF NEWPORT BEACH M Mayor Dated: , 2000 KOLL CENTER NEWPORT NUMBER A 0 Its: 27 0 • STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, 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 ordinance, being Ordinance No. 2001 -11 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 24th day of July 2001, and that the same was so passed and adopted by the following vote, to wit: Ayes: O'Neil, Ridgeway, Glover, Mayor Adams Noes: Heffernan, Bromberg, Proctor Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of July 2001. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2001 -11 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: July 28, 2001. In witness whereof, I have hereunto subscribed my name this day of 2001. City Clerk City of Newport Beach, California 0 ORDINANCE NO. 2001-12 6 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A ZONING AMENDMENT INCREASING THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [ZONING AMENDMENT 9051 WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan Amendment (GPA 97 -3(B)) and a Zoning Amendment for "Office Site B" of the Koll Center Newport (KCN) .Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B to a total of 1,201,349 net square feet while eliminating restaurant and retail- service uses; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Zoning Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Zoning Amendment, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties a notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning Amendment 905: 1 i 0 1. The amendment is consistent with the General Plan assuming that GPA 97 -3(B) is approved by the electorate pursuant Section 423 of the City Charter in that it provides for an increase in square footage commensurate with that allowed by GPA 97 -3(B). 2. The internal consistency of the Planned Community text will be retained in that all development square footages and open space acreages have been adjusted to retain appropriate development and open space percentages. SECTION 3: ZONING AMENDMENT. 1. The City Council hereby adopts, by reference, the CEQA- required "Statement of Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations ", attached as Exhibit "EIR -2" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby finds that the benefits override the identified adverse environmental impacts. 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution certifying the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MMRP. 4. In light of the preceding findings and actions, the City Council hereby approves Zoning Amendment 905, consisting of the amendments to the Koll Center Newport Planned Community Development Standards specified in Exhibit "ZA -1 ", attached hereto, subject to the mitigation measures identified in the Environmental Impact Report and listed in Exhibit "EIR -5" as conditions of approval of the Zoning Amendment, as stipulated in Exhibit "ZA -1 ". SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the Ordinance shall become effective upon certification by the City Clerk to the 2 0 • City Council that GPA 97 -3(B) has been approved by the electorate pursuant to Section 423 of the City Charter. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on July 10, 2001 and adopted on July 24, 2001 by the following vote, to wit: ATTEST: CITY CLERK AYES, COUNCIL MEMBERS O'Neil, Ridgeway, Glover, Mayor Adams NOES, COUNCIL MEMBERS Bromberg, Proctor Heffernan, ABSENT COUNCIL MEMBERS None MAYOR `O-w 3 EXHIBIT ZA -1: KOLL CENTER NEWPORT PLANNED COMMUNITY TEXT AMENDMENT (AMENDMENT NO. 905) The Planned Community Development Standards for Koll Center Newport is amended as follows: Page 1: DEVELOPMENT CONSIDERATIONS First Two Paragraphs: [No changes] Insert New Third Paragraph: "All development and land use within the Koll Center Newport Planned Community shall be subject to implementation of the mitigation measures specified in the applicable Environmental Impact Report Mitigation Monitoring and Reporting Program (MMRP) for that project and /or land use (including, but not limited to, the MMRP related to EIR No. 158 for the Koll Office Site B expansion project)." (TBD) Remainder of Section on [No changes] "DEVELOPMENT CONSIDERATIONS" Pages 14-16: PART II. COMMERCIAL Section I. Site Area and Building Area Interior noise shall be mitigated to the levels prescribed in the Airport Environs land Use Plan and the City of Newport Beach General Plan Noise Element. Also, rooftop obstruction lighting shall be provided for buildings ten stories or higher in accordance with Federal Aviation Administration standards. Group I. PROFESSIONAL & BUSINESS OFFICES Acreages shown are net buildable land area, including landscape setbacks with property lines. (4) A. Building Sites [No changes] B. Allowable Building Area Note: Building areas shown in this Part II are net floor areas, excluding non - habitable space such as equipment rooms, elevator shahs, stairwells, etc. (Net floor areas shall generally be taken as 95 percent of gross floor area.) 4 Site A: 340,002 square feet (16) Site B: 1,201,349 square feet (13)(16) (TBD) Site C: 674,800 square feet (10)(15) Site D: 240,149 square feet (8)(13) Site E: 32,500 square feet (4) Site F: 24,300 square feet (4) Site G: 45,000 square feet (8) 2,558,100 square feet (15) (TBD) C. Statistical Analysis (4) The following statistics are for information only. Development may include but shall not be limited to the following: Story heights shown are average heights for possible development. The buildings within each parcel may vary. Assumed Parking Criteria: a. [No changes] b. For Sites A, B and C, the Parking Pool Exception of Part III, Section I -B shall apply: (11) (TBD) • For the first 125,000 square feet, parking shall be provided at one space per 250 square feet of net floor area. • For the next 300,000 square feet, parking shall be provided at one space per 300 square feet of net floor area. • For any additional floor area, parking shall be provided at one space per 350 square feet of net floor area. C. Parking structures within commercial and office sites shall incorporate the following design features in order to soften their visual impacts: • The sides of parking structures open to public view shall be textured and colored or faced with brick or other material consistent with the structure's associated buildings. Exposed, uncolored concrete sides shall be avoided. • Linear planters and/or trellises with shrubs and cascading vines shall be provided along the outside of parking levels visible from public roadways. • For the two -level parking structure in Office Site B nearest the intersection of MacArthur boulevard and 5 0 0 Jamboree Road, trees within planters and/or trellis structures with trailing vines shall be provided within the interior of the top parking level. Also, the finish grade of the top level of this parking structure shall substantially match and follow the pre- existing surface grade and shall not extend more than two feet above the pre - existing surface grade at any point. In Office Site B, in order to ensure implementation of the preceding design features, site, grading, landscape, and architectural plans for both parking structures in that Site shall be submitted by the developer to the Planning Commission for review and approval prior to the issuance of any building permits. These plans shall conform to the preceding design requirements and the applicable development agreement. Site A (No changes) Site B Allowable Building Area: 1,201,349 net square feet (13X16) (TBD) Site Area: 43.703 acres (4)(11) a. Building Height. Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development b. Parking 3,719 cars c. Landscaped Open Space Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development G1 Land Coverage (16) (TBD) 13.93 acres 9.29 acres 6.97 acres 5.57 acres 4'.64 acres 3.98 acres 3.48 acres 3.10 acres 2.79 acres 2.53 acres 2.32 acres Land Coverage (11X13X16XTBD) 19.35 acres (11) Land Coverage (11X13X16)(TBD) 10.42 acres 15.06 acres 17.38 acres 18.78 acres 19.71 acres 20.37 acres 20.873 acres 21.25 acres 21.56 acres 21.82 acres Group V 0 Twelve story development 22.03 acres (No changes in remainder of Paragraph Cl Pages 21 -24: RESTAURANTS (1)(4) A. Building Sites Maximum acreages for Site 2 shall not exceed 1.25 (18) acres. Maximum acreage for Site 3: 1.765 acres. Maximum acreages for Sites 4 and 5 shall not exceed 3.0 acres. Maximum acreage for Sites 6 and 7 shall not exceed 2.2 acres. (8) (The following acreages are for information only.) Site 1 Deleted (see Group VII) (18) Site 2 transferred to office use (TBD) Site 3 1.765 acres Site 4 1.50 acres Site 5 1.50 acres Site 6 1.50 acres (8) Site 7 0.70 acres (8) 6.965 acres (TBD) Site 1 Deleted see Group VII Private Club (18) Site 3 located within Office Site "F ". (4) Sites 4 and 5 located within Office Site "B ". (4) (16) (TBD) Sites 6 and 7 located within Office Site "G ". (8) Any portion or all of the restaurant, bar, theater /nightclub acreage for Sites 4, 5, 6, or 7 not utilized for that purpose shall revert to professional and business office use. Any portion or all of the restaurant acreage for Site 3 not utilized for that purpose shall revert to either professional and business office use or service station use.(4)(8) (18) The following statistics are for information only. Development may include but shall not be limited to the following: B. Building Area (4) Site 3 10,000 sq. ft. 0.22 acres Site 4 7,000 sq. ft. 0.16 acres Site 5 7,000 sq. ft. 0.16 acres Site 6 (8) 7,000 sq. ft. 0.16 acres Site 7 (8) 3,000 sq. ft. 0.07 acres Total: 34,000 sq. ft. 0.78 acres(8X18XTBD) C. Parking 7 Group VI Q E. Criteria: 300 occupants/10,000 sq. ft. Site 4 1 space /3 occupants and 120 cars per acre. Site 3 100 cars 0.84 acres Site 4 70 cars 0.58 acres Site 5 70 cars 0.58 acres Site 6 (8) 70 cars 0.58 acres Site 7 (8) 30 cars 0.25 acres Total: 340 cars 2.83 acres(8X 1 8XTBD) Landscaped Open Space (4) Site 3 0.70 acres Site 4 0.76 acres Site 5 0.76 acres Site 6 (8) 0.76 acres Site 7 (8) 0.38 acres Total: 3.36 acres (8)(18)(TBD) Building Height Building height of structures shall be limited to a height of thirty-five (35) feet. RETAIL & SERVICE CENTER A. Building Sites (4) (5) (TBD) Site 1: 5.026 acres 5.026 acres B. Allowable Building Area (5) (TBD) 'Retail Site No.1 (sq. ft.) 102,110 sq. ft. (14) [No changes in remainder of Paragraph B.] C. Landscape Area (5) Twenty -five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 shall be developed as landscape area. If twenty -five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 is not developed as landscape area, a specific site plan shall be submitted to the City of Newport Beach Planning Commission for approval prior to the issuing of a building permit. D. Statistical Analysis (5) The following statistics are for information only. Development may include but shall not be limited to the following. 0 L 0 Assumed parking criteria: One (1) space per 200 square feet of net building area at 120 cars per acre. 1. Site 1 [No change] 2. Site 2 (TBD) E. Building Height Building height of structures shall be limited to a height of thirty -five (35) feet above mean existing grade as shown on Exhibit "B ". (5) Page 52. [In PART VI, Add the following amendment footnote.] (TBD) Planned Community Text revisions (Amendment No.905, adopted Ordinance_) including the following changes: a. Increase the allowable building area in Professional and Business Office Site "B" by 237,500 net square feet. b. Convert Restaurant Site 2 (5,000 net square feet) to professional and business office use within Office Site "B ". c. Convert Retail and Service Center Site 2 (10,000 net square feet) to professional and business office use within Office Site "B ". F: \users\cat\shared \da \Ordinance \KollZoningClean.doc E 0 0 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, 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 ordinance, being Ordinance No. 2001 -12 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 24th day of July 2001, and that the same was so passed and adopted by the following vote, to wit: Ayes: O'Neil, Ridgeway, Glover, Mayor Adams Noes: Heffernan, Bromberg, Proctor Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of July 2001. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2001 -12 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: July 28, 2001. In witness whereof, I have hereunto subscribed my name this day of 2001. City Clerk City of Newport Beach, California • ORDINANCE NO. 2001-11 4Wmy 24, 2001 Agenda Item No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A DEVELOPMENT AGREEMENT FOR KOLL CENTER NEWPORT OFFICE SITE B [DEVELOPMENT AGREEMENT NO. 161 ('j /C A>) 6 N � i WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City") for a General Plan Amendment (GPA 97 -3(B)) and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the GPA 97 -3(B) would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit "DA -1"; and WHEREAS, the Development Agreement provides for certain rights, obligations, and assurances on the parts of both the City and the Developer; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested- parties, adopted a resolution recommending that the City Council approve the Development Agreement; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Development Agreement, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. 0 0 THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the project addressed by the Development Agreement. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a Development Agreement for the proposed project. The Development Agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items. Although this discretionary action was not identified in the project description contained in the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the Development Agreement. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: DEVELOPMENT AGREEMENT. a. The Development Agreement is, assuming voter approval of GPA 97 -3(B), consistent with the objectives, policies, general land uses, and programs of the General Plan of the City.. 0 0 b. The City Council hereby approves and adopts the Development Agreement, attached hereto as Exhibit "DA -1 ". The Mayor is hereby authorized to execute the Agreement, and, assuming voter approval of GPA 97 -3(B), the City Clerk shall cause a copy thereof to be recorded with the Orange County Recorder. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall not become effective until the City Clerk certifies to the City Council that the GPA 97 -3(B) has been approved by the electorate pursuant to Section 423 of the City Charter. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on July 10, 2001 and adopted on July 24, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS ,•r• • $ . ATTEST: CITY CLERK Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND KOLL CENTER NEWPORT NUMBER A Approved July 24, 2001 Ordinance No. 2001 -11 0 0 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is executed as of 2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and KOLL CENTER NEWPORT NUMBER A ( "OWNER "). RECITALS. 1.1 Property /Ownership Status. OWNER owns all of the real property ( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of approximately five (5) acres. 1.2 Planning Status. The Property comprises a portion of Office Site B" known as "Professional and Business Office Site B" of the Koll Center Newport Planned Community, which is currently entitled with approximately one million (1,000,000) square feet of office development. 1.3 Project. OWNER has asked CITY to approve a general plan amendment, zoning amendment and related permits that would authorize the construction of approximately two hundred and thirty -five thousand (235,000) square feet of additional office use on the Property. 1.4 Hearings. The Newport Beach Planning Commission (Planning Commission) and the Newport Beach City Council (City Council) have conducted all required public hearings on the Project and certified an Environmental Impact Report for the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance with applicable provisions of State law and the Newport Beach Municipal Code. 1.5 General Findings. The Planning Commission and City Council have determined that the Project and all Project Approvals are consistent with all elements of the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the CEQA Guidelines. The Project and all Project Approvals are also consistent with all other relevant plans, policies, ordinances, resolutions and regulations of the CITY. 1.6 Affordable Housing. The CITY and OWNER have determined that the Project does not constitute a residential development subject to the terms and conditions of the CITY's Housing Element. Accordingly, no present or subsequently enacted affordable housing requirement or housing in lieu fee shall be required of OWNER. 1.7 Purpose of Agreement. The purposes of this Agreement are as follows: F:\ users \cat\shared \Burnham \Koll\DA062601.doc 0 0 (a) To provide for the orderly completion of development of the Property consistent with the Project Approvals, Project Conditions and this Agreement. (b) To provide the CITY and OWNER with certainty that the Project will be developed and maintained as contemplated by the Project Approvals, Project Conditions and the Development Plan. (c) To provide assurance to OWNER that OWNER may proceed with the Project, subject to compliance with Project Conditions, in accordance with the laws, policies, rules, ordinances, resolutions and regulations of the CITY in effect as of the Approval Date. (d) To strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic cost of development, mitigate the impacts of development, and provide public benefits in excess of those normally secured through the planning process. 1.8 Authorization. This Agreement is authorized by, and is consistent with, the provisions of §§ 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.9 Police Power. The City Council has determined that this Agreement: (a) Is in the best interests of the health, safety and general welfare of the CITY, its residents and the public; (b) Was entered into pursuant to, and is a valid exercise of, the CITY's police power; and (c) Has been approved in accordance with the provisions of State and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On , 2001, after giving appropriate notice and holding all appropriate public hearings, the City Council conducted the first reading of Ordinance No. authorizing the CITY to enter into this Agreement. The City Council approve(T the Adopting Ordinance on , 2001, after giving appropriate notice and holding all appropriate public hearings. The Adopting Ordinance shall be considered effective as specified in Section 81. 1.11 CEQA Review. The City Council has independently reviewed, approved and certified the EIR for the Project. In so doing, the City Council determined, among other things, that the EIR was prepared in full compliance with CEQA and the CEQA Guidelines. The City Council also adopted all feasible mitigation measures, made 3 [�J appropriate findings and adopted a statement of overriding considerations with respect to any significant effect that could not be mitigated to a level of insignificance. The City Council also adopted a Mitigation Monitoring Program for the Project as required by CEQA and the CEQA Guidelines. 2. DEFINITIONS. 2.1. "Adopting Ordinances" refers to: (a) Ordinance No. 2001- adopted by the City Council on , 2001, approving Zoning Amendment No. 905 and this Agreement; (b) Resolution No. 2001- adopted by the City Council on 2001, approving GPA 97 -3(B); (c) Resolution No. 2001- adopted by the City Council on , 2001, approving Traffic study No. 119 and making findings pursuant to Chapter 15.40 of the Code; (d) Resolution No. 2001- adopted by the City Council on , 2001 certifying the EIR as fully compliant with CEQA and the CEQA Guidelines, adopting all feasible mitigation measures, and containing the statement of overriding considerations. 2.2. "Agreement" refers to this Development Agreement. 2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith compliance with this Agreement, as set forth in Section 7. 2.4 "Approval Date" means 2001, the date on which the City Council approved the Adopting Ordinances. 2.5 "Assign" means all forms of use of the verb "assign" and the nouns "assignment" and "Assignee" shall include all contexts of hypothecation, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California. 2.7 "CITY" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the CITY. 4 • • 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Article 10. 2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while an "OWNER Default" refers to a Default by OWNER. 2.12. "Develop" means all forms of use of the verb "develop' and the noun "Development ", whether or not capitalized, means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and parking facilities and improvements. "Develop" or "Development" also includes the maintenance, repair, alteration, reconstruction or redevelopment of any building, structure, improvement, landscaping or facility after the initial construction and completion so long as consistent with the Project Approvals, the Development Plan and this Agreement. "Develop" or "Development" also includes the use of the Property in a manner consistent with the permitted general, primary, .and secondary uses as set forth in the PC Text and the Development Plan. 2.13. "Development Plan" means and constitutes the plan for the development of the Property, as embodied and stated in the Project Approvals, Project Conditions and this Agreement. 2.14. "Effective Date" shall be the date this Agreement becomes effective as specified in Section 8.1. 2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No. 99091120) prepared for the Project and certified as fully compliant with CEQA and the CEQA Guidelines by the CITY Council on the Approval Date. 2.16. "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 7.4. 2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are as follows: Exhibit: Description: A Legal Description of the Property B Map depicting the Property 5 0 C Project Approvals comprising the Development Plan D List of Project Conditions 2.18. "Existing General Regulations" means those General Regulations approved by the CITY on or before the Approval Date (irrespective of their Effective Date) and not rescinded or superseded by CITY action taken on or before the Approval Date. 2.19. "Future General Regulations" means those General Regulations adopted or approved by the CITY in any way, after the Approval Date. 2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the CITY on or before the Approval Date as part of the Project Approvals, Project Conditions or the Development Plan. 2.21. "General Plan Amendment" or "GPA" means General Plan Amendment 97 -3(B) amending the General Plan of the CITY as approved by the City Council on , 2001 if and when approved by the voters pursuant to Section 423 of the City Charter. 2.22. "General Regulations "means all laws, ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and permitted uses of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property and provisions relating to applicable fees, charges, assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO), the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water and sewer connection fee ordinances. General Regulations do not include any CITY ordinance, resolution, code, rule, regulation or official policy identified in or governing the following ( "Governmental Exceptions'): (a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 (except Chapters 15.38 and 15.40) and of the Newport Beach Municipal Code; (b) Property taxes and assessments; (c) The control and abatement of Nuisances (subject to the provisions of Section 3.4); (d) The exercise of the power of eminent domain; A 0 (e) The provision of, or charges for, water, sewer, refuse, police, fire and other municipal services that are generally applicable to all owners or lessees of commercial property in the CITY; and (f) The manner in which property is used that are related to the amount and time of noise from permitted activities, the use of alcohol, and the nature and timing of special events. 2.23. "Governmental Reservations" refers to those actions that CITY may take that may affect the Project or the operation of the Project, as follows: (a) Enforcement of the specific provisions, limitations and restrictions contained in the Project, Project Approvals, Development Plan and Project Conditions; (b) Enforcement of the provisions and conditions of this Agreement; (c) Enforcement of, or pursuant to, Governmental Exceptions or Governmental Reservations; and (d) Enforcement of Existing General Regulations 2.24. "Include" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.25. "OWNER" refers to Koll Center Newport Number A, a California general partnership. 2.26. "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all or a portion of OWNER's interest in the Property is used as security. 2.27. "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY or OWNER. 2.29. "PC Text" refers to the "Koll Center Newport Planned Community Development Plan" as amended by the City Council on the Approval date and any subsequent modification of the PC Text with respect to the Property that are approved by the City Council and to which OWNER consents. Except for the modifications expressly permitted by the terms of this Agreement, OWNER shall be under no obligation to consent to modifications of the PC Text 2.30. "Planning Commission" refers to the Planning Commission of the CITY. 7 2.31. "Project" refers to the existing and proposed development of the Property pursuant to, and consistent with the Project Approvals, consistent with and subject to Project Conditions, and as described in the Development Plan. The Project includes those improvements existing on the Property as of the Approval Date. 2.32. "Proiect Approvals" refers to all approvals, amendments, permits, licenses, consents, rights and privileges, and other actions required or authorized to be approved, issued or taken by CITY in connection with development of the Property, including but not limited to the following discretionary actions: (a) General Plan Amendment No. 97 -3(B); (b) Zoning Code Amendment No. 898 (Koll Center Newport Planned Community Development Plan); (c) Traffic Study No. 119; and (d) Environmental Impact Report No. 158 (State Clearinghouse No. 99091120). Project Approvals also means any grants of easements, vacations, subdivisions, resubdivisions, lot line adjustments or other actions necessary to the implementation of the Project. Project Approvals also include any and all discretionary or ministerial permits related to construction of the Project including grading permits, building permits, and occupancy permits. 2.33. "Proiect Conditions" means all conditions to OWNER's right to proceed with Development pursuant to the Project Approvals, including the provisions of this Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by the City Council, conditions to approval of the Traffic Study, conditions to Project Approvals, Existing General Regulations and Governmental Reservations. The Project Conditions are generally described in Exhibit D. The term Project Conditions does not included the requirement for voter approval pursuant to Section 423 of the City Charter. 2.34. "Prove refers to the real property described on Exhibit "A" and depicted on Exhibit "B ". 2.35. "Subsequent Development Permits" means all Project Approvals granted or issued by the CITY subsequent to the Approval Date in connection with development of the Property. 2.36. "Vested Entitlement" or "Entitlement" refers to the development rights granted OWNER pursuant to this Agreement and the Project Approvals that are subject to Project Conditions. M 0 0 3. DEVELOPMENT OF THE PROPERTY 3.1 Development Program. Upon the Effective Date, this Agreement vests OWNER's right to proceed with the development described in the Project Approvals and Development Plan. OWNER acknowledges that its right to proceed with the Vested Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants no assurance that OWNER will receive necessary permits or approvals from any other public agency with jurisdiction over the Project or that Project Approvals will not be subject to and affected by legal or other challenges or procedures initiated by third parties. (a) Permitted Uses. The Property shall be used and developed only in the manner provided in the Project Approvals and the Development Plan. CITY acknowledges that, from time to time, OWNER may seek and obtain, in accordance with applicable provisions of State and local law, minor amendments to the Development Plan and the Project Approvals. The Planning Director of the CITY ( "Planning Director") shall determine, subject to appeal by OWNER to the Planning Commission, whether a proposed amendment is a "minor amendment" for purposes of this Agreement. A minor amendment is one that does not increase vehicular trips or other environmental impacts associated with Project Approvals or the Development Plan. (b) Permitted Density of Development. OWNER shall have the vested right to develop the Property and receive the CITY's approval of all Project Approvals consistent with the permitted density and level of intensity authorized by the Project Approvals and as described in the Development Plan. The CITY shall not impose any condition on any Project Approval that reduces the permitted density and level of intensity allowed in the Development Plan and discretionary Project Approvals. CITY acknowledges that the boundaries of the parcels shown on the Development Plan and the Project Approvals are approximate and are subject to minor variation prior to recordation of final map(s) for the Project, provided OWNER complies with the applicable procedures for subdivision maps. CITY may impose standard conditions of approval on any subdivision or resubdivision requested by OWNER so long as the condition(s) do not reduce the permitted density or intensity, or substantially increase the cost of the development, allowed in the Project Approvals and described in the Development Plan. (c) Maximum Height and Size of Structures. OWNER shall have the vested right to develop the Property with the maximum height and 0 size of structures as set forth in the Development Plan and the Project Approvals. 3.2 Compliance with Project Conditions. OWNER acknowledges that City Council approval of the Project Approvals, the Development Plan and this Agreement is subject to compliance with the Project Conditions. The Project Conditions are, among other things, designed to minimize or eliminate any adverse impacts of the Project and protect and enhance the environment. In certain instances, the Project Conditions exceed those that might otherwise be appropriate under "nexus" and "rough proportionality" tests recently articulated by the courts. By entering into this Agreement, OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any Project Conditions imposed by the CITY after the Effective Date shall be consistent with the Project Approvals, Development Plan and this Agreement. Owner also agrees to abide by any conditions or modifications to the design of the Project resulting from Project Conditions that authorize review by the City subsequent to the Approval Date. 3.3 Compliance with General Regulations. OWNER shall comply with the Existing General Regulations. Except as otherwise specified in this Agreement, OWNER shall not be obligated to comply with any Future General Regulations that are in conflict with the Development Plan or this Agreement. Any Future General Regulation(s) that are inconsistent with this Agreement and /or the Development Plan and which do not fall within the definition of Governmental Reservations or Governmental Exceptions shall not be applicable to the development or use of the Property. With respect to Existing General Regulations that require the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect on the Approval Date subject to any automatic increases or decreases mandated by the text of the Existing General Regulation as of the Approval Date. OWNER shall, however, comply with: (a) any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan or increase OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether adopted before or after the Approval Date by the CITY, which are in effect at the time applications for specific Project Approvals are submitted. 3.4 Public Health and Safety /Uniform Codes. This Agreement shall not prevent the CITY from adopting, and applying to the Project, Future General Regulations, including Uniform Codes (as referred to above), that are based on recommendations of a multi -state professional organization relating to the specifications for the constructions of improvements ( "Building Codes ") and become applicable throughout CITY. This Agreement shall not prevent the CITY from adopting, and applying to the Project, conditions inconsistent with the Development Plan or Project Approvals, when the conditions are adopted by the City Council after a noticed public hearing and pursuant to a determination by the City Council that the conditions are necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a determination of Nuisance unless the OWNER has been given notice of, and the right to present evidence at, a public hearing. Any 10 • • determination of Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must be supported by substantial evidence in the record of the hearing. 4. BENEFITS TO OWNER. 4.1 Right to DeveloR. Upon the Effective Date and during the term of this Agreement, OWNER shall have a vested right to develop, and receive building and occupancy permits for construction on, the Property to the full extent permitted by the Project Approvals and the Development Plan subject to the Project Conditions. CITY shall only take action with respect to the Property that complies and is consistent with the Project Approvals and the Development Plan unless OWNER gives its written consent to the action or CITY is permitted to take the action pursuant to this Agreement. OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY shall not impose or increase any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of and, or any other type of exaction) on the Project, except as expressly permitted by this Agreement, Existing General Regulations, Governmental Reservations or Governmental Exceptions. However, CITY may impose or increase a condition or requirement when such action is required (as opposed to permitted) by State or federal law and then only to the minimum extent and duration necessary to comply with State or federal law. Except as otherwise provided by this Agreement, the ordinances, plans, resolutions, and policies governing the permitted use and development of the Property shall be those described in the Project Approvals and the Development Plan. 4.2 Reservations or Dedications of Land. No dedication or reservation of any portion of the Property shall be required of OWNER in conjunction with the application or issuance of any Project Approval except as may be provided in the Project Approvals, Project Conditions, Development Plan or this Agreement. 4.3 No Additional Traffic Related Fees or Conditions. OWNER's satisfaction of the provisions of Article 5 shall be deemed full compliance with all Existing General Regulations, Future General Regulations and CEQA relative to traffic impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or increase the amount of any traffic- related fee, charge, dedication, or improvement relative to, or as a condition to, development of the Project. 4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior boundaries of the Property to the extent, and subject to the same conditions, that capacity is provided to similarly situated commercial property in the CITY. OWNER agrees to accept, during the term of this Agreement, all storm drain inflow from facilities in place as of the Effective Date. 4.5 Park Fees. OWNER and CITY acknowledge that the Project may generate some incidental demand for, and usage of, park and open space land within 11 i • the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter 19.50 of the Newport Beach Municipal Code) and any Existing General Regulation relating to the dedication of land for park or open space purposes or the payment of park or open space fees. 4.6 Future Impact Fees. Conditions. and Exactions. So long as OWNER is not in default under this Agreement, CITY will not impose, or increase the amount of, any impact fee, condition, mitigation measure, or exaction other than as expressly required by the Project Approvals, Project Conditions, Existing General Regulations, the Development Plan, or this Agreement. CITY shall not, without the written consent of OWNER, form, or cause the formation of, any new governmental entity for the purpose of imposing fees, conditions or exactions the CITY could not directly impose pursuant to this Section. CITY may form or cause the formation of an assessment district (or similar vehicle) comprised of the Property and other property in the area for the purpose of funding public improvements that provide a special benefit to the Property. However, CITY may not include the Property in any assessment district formed to fund construction of public improvements that CITY is prohibited from imposing on OWNER because of this Agreement. 4.7 Time for Construction and Completion of Project. OWNER shall have the right to develop the Project in the manner and at the time that OWNER deems appropriate in the exercise of its business judgment. The Parties acknowledge that OWNER cannot predict the timing of the development of the Project because of numerous factors not within the control of OWNER, such as market demand, economic conditions, interest rates and competition. Subject to compliance with the provisions of this Agreement and Project Conditions, OWNER shall, at any time during the term of this Agreement, be entitled to apply for, and receive, Project Approvals consistent with the Development Plan. 4.8 Development Standards. Because the Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the Existing General Regulations and Future General Regulations is neither necessary nor appropriate. The terms and provisions of the Project Approvals, Development Plan or this Agreement shall prevail in the event of any conflict with Existing General Regulations or Future General Regulations. 4.9 Tentative Maps. (a) Improvement Security. As a condition of approving a final subdivision map or any future resubdivision for all or a portion of the Property, the CITY may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to the Municipal Code and the Subdivision Map Act. Nothing in this Agreement shall be construed as altering or relieving OWNER of any obligation imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement requirements, exactions or iPA other conditions of approval of a subdivision map, parcel map or lot line adjustment shall be consistent with this Agreement but CITY may impose standard conditions of approval generally applicable to similar projects subject to the provisions Section 3.1(b). (b) Expiration. Any current or future tentative maps for resubdivision of the Property shall expire concurrently with the termination of this Agreement or after the maximum period for the expiration of tentative maps authorized by Government Code § 66452.6, whichever is later. Should the time periods authorized by Government Code § 66452.6 be lengthened after the execution of this Agreement, OWNER shall be entitled to further extensions of any tentative subdivision map applicable to the Property, to the maximum extent authorized by law. (c) Resubdivisions. The Parties acknowledge that resubdivisions, lot line adjustments, or similar modifications may be necessary to develop the Project and are contemplated by this Agreement. These modifications or adjustments shall be approved provided they are in substantial conformance with the Development Plan and the Project Approvals. 4.10 Processing and Issuance of Permits. (a) Processing of Permits. As a material term of this Agreement benefiting OWNER, the CITY shall promptly accept for processing /review, and expeditiously approve, permit applications for the development and use of the Property that are in substantial conformance with the Project Approvals, Development Plan, Existing General Regulations, and this Agreement. (b) Issuance of Ministerial Project Approvals. CITY shall issue to OWNER all necessary use, building, occupancy, and other permits and approvals upon request, provided that applications are submitted in accordance with the Existing General Regulations and are in substantial conformance with the Project Approvals, Development Plan and this Agreement. (c) Vesting of Project Approvals. Any permit, license or approval issued pursuant to this Agreement shall be vested and deemed a Project Approval when granted. 4.11 Future Approvals. The future approval or issuance of any Project Approval that is consistent with the Development Plan, including any permit, license or authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations and similar actions shall not require an amendment of this Agreement 13 0 5. PUBLIC IMPROVEMENTS E 5.1 Regional Transportation Facilities Fees. OWNER acknowledges that CITY is bound by provisions of ordinances, agreements, rules and regulations related to the financing, construction and operation of major transportation improvements that benefit large areas of Orange County including the Property. OWNER shall comply with the provisions of all such ordinances, agreements, rules and regulations, including the payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers Agreement and /or the Transportation Corridor Agency (collectively, the "TCA "). OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition and /or amount of fees through any procedure adopted or used by the TCA for that purpose. OWNER shall also have the right to commence litigation relative to the amount, method of calculating or timing of any fees or the procedure utilized by the TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless with respect to any loss, damage claim or liability arising out of any litigation commenced by OWNER that is related to this Section. OWNER agrees that satisfaction of the provisions of this Section is a condition to any discretionary or ministerial Project Approval. CITY shall not be required to issue any discretionary or ministerial Project Approval until OWNER provides proof that all fees required to be paid to the TCA, whether pursuant to ordinance, settlement or judgment, have been paid. 5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are based on the one thousand seven hundred and seventy (1770) additional average daily trips generated by the Project multiplied by the current per trip fee of one hundred thirty three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the time specified in Chapter 15.38 of the Code. 5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY for the construction of the circulation system improvements identified in Traffic Study 119 (TPO Improvements). OWNER's contributions to the funding of the TPO Improvements equal or exceed the requirements of the TPO and OWNER's contributions to the funding of the TPO Improvements is in addition to all other fees, charges or contributions required by this Agreement and /or existing General Regulations. OWNER's contribution to the TPO Improvements shall be the sum of seventy thousand dollars ($70,000) to fund construction of a second northbound (MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn lane and the construction of a second northbound (MacArthur) right turn lane at the MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary 14 0 0 plans, specifications and cost estimates for the MacArthur Project. The MacArthur Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree intersection as required by the TPO. The MacArthur Project is anticipated to cost one million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution to the MacArthur Project represents four percent (4 %) of the cost of the TPO improvements and has been calculated as specified in the TPO. CITY agrees to provide any supplemental funds necessary to ensure that construction of the MacArthur Project is complete no later than one year after occupancy of any development authorized by the Project Approvals. 5.4 Long Range Traffic Improvements. (a) Introduction. The EIR evaluated the "long term" impacts of the Project on major intersections in Newport Beach and Irvine (Long -range Analysis). The Long -range Analysis assumed construction of all entitlement and all circulation system improvements authorized in the Land Use and Circulation Elements of the Newport Beach General Plan (including the TPO Improvements). The Long -range Analysis also assumed the construction of entitlement and circulation system improvements contemplated for the year 2020 in the Land Use and Circulation Elements of the Irvine General Plan. The Long- range Analysis concluded that the Project would, depending on the construction of the J5 Ramp, have significant long -range adverse traffic impacts on four (4) or five (5) major intersections. The potential cost of mitigating the long - range impacts of the Project on intersections in the airport area could be significant. For example, mitigation of the impact of Project trips on service levels may require the construction of a grade separation and access ramps at the MacArthur /Jamboree intersection. The CITY has prepared conceptual plans for a grade separation at the Jamboree /MacArthur intersection and very preliminary cost estimates indicate that improvement costs, exclusive of right -of -way could be in the range of fifteen million dollars ($15,000,000) to twenty million dollars ($20,000,000). Moreover, the approval of the Project will result in an increase in average daily trips in the vicinity of the Project that may require other property owners to make improvements pursuant to the TPO that would not be necessary but for the Project. (b) OWNER Commitments. OWNER agrees to do the following: (i) Pay the CITY, within sixty (60) days after the Effective Date, forty-five cents ($.45) per square foot of additional entitlement granted pursuant to the Project Approvals to be used by the CITY solely for the purpose of funding a Planning Study for the Airport Area. 15 0 0 (ii) Pay the CITY the sum of eight dollars ($8.00) per square foot of additional entitlement authorized by the Project Approvals (Mitigation Fee). In the event a building permit is not issued within twelve (12) months after the Effective Date, the amount of the Mitigation Fee shall be increased by fifty cents ($.50) every twelve months after the Effective Date. (c) Payment OWNER shall pay the Mitigation Fee prior to the issuance of any building permit for the Project. (d) Compliance. OWNER's compliance with the provisions of this Section shall relieve OWNER of any obligation to participate in any circulation system funding program developed and implemented by the CITY including a specific area plan or major thoroughfare program for the airport area. OWNER's compliance with the provisions of this Article shall constitute full and complete satisfaction of any obligation to make or fund, in whole or in part, any CITY circulation system improvement as a condition to development of the Project. 5.5 Fire Station Fee. The EIR concludes that fire suppression service to the Project will not meet CITY response time standards in the event of the closure of OCFA Station 27. CITY has conducted studies of fire service needs in the airport area and options for providing fire suppression and paramedic services consistent with CITY standards. The options for providing fire suppression and paramedic services include the construction, equipping and staffing a new fire station in the airport area or immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current estimated cost of constructing and equipping a New Fire Station is two million dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site, the construction of the New Fire Station, and /or the equipping /staffing of the station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading or construction on the Property pursuant to this Agreement. Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire suppression facility impact fee program (Program) for area served by the New Fire Station. 5.6 Circulation Study. Prior to the issuance of a building permit, OWNER shall prepare a study to evaluate the adequacy of on -site circulation and the impact of , that circulation and vehicle ingress and egress on traffic flow on or through adjacent roadways and intersections. The study shall be conducted under the direction, and to the satisfaction, of the Transportation and Development Services Manager. OWNER shall, at OWNER's sole cost and prior to occupancy, incorporate all feasible study recommendations relative to ensuring adequate on -site circulation. OWNER shall also, at OWNER's sole cost and prior to occupancy, make all feasible improvements to mitigate any significant impact of vehicle stacking on traffic flow on or through adjacent roadways or intersections. W., 0 0 6. SPECIAL PROVISIONS 6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley Burns Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales (Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER directly pays the Tax on all Eligible Transactions. 6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and Use Tax Program (Program) that, at a minimum, has the following components: (a) OWNER's commitment to, during the term of this Agreement, maintain a direct pay permit or similar authorization to directly pay Tax on all Eligible Transactions; (b) procedures that Owner will implement to maximize the amount of Tax paid to the City with respect to construction of the Project. (c) procedures pursuant to which OWNER will provide City with information identifying all buyers and sellers with whom OWNER and /or OWNER's contractors do business. The Program shall also contain other information relevant to OWNER's compliance with the terms and conditions of this Agreement pertaining to the direct payment of Tax. OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the Revenue Manager of CITY for approval. OWNER shall modify the Program in accordance with any and all reasonable recommendations of the Revenue Manager that are consistent with the intent of this Section. OWNER shall, during the term of this Agreement, fully implement the Program approved by the Revenue Manager. 7. ANNUAL REVIEW. 7.1 CITY and OWNER Responsibilities. Each Party shall review the other Party's good faith substantial compliance with this Agreement once each year (the "Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an annual review statement describing its actions in compliance with this Agreement and the Development Plan. 7.2 Procedure. In connection with the Annual Review, each Party shall have a reasonable opportunity to advise the other of alleged or potential breaches of this Agreement or the Development Plan, to explain the basis for that Party's position, and to receive from the other Party a statement of its position. A Party may issue a written "Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of the Annual Review, that Party concludes that the other Party has not complied in good 17 faith with the terms of this Agreement or the Development Plan. The Party receiving a Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the sixty (60) day period, the Party alleging the non - compliance may pursue the remedies provided in this Agreement. 7.3 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures related to the Project. 7.4 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature of the Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign an Estoppel Certificate on behalf of the CITY. 7.5 Failure to Conduct Annual Review. The failure to conduct an Annual Review shall not constitute a Default of either Party or be asserted as a Default by either Party. 8. GENERAL PROVISIONS 8.1 Effective Date. This Agreement shall bind the Parties as of the Approval Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge and agree that none of the Project Approvals becomes effective unless the voters approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to the City Council the results of any election conducted pursuant to Section 423 of the City Charter. 8.2 Term of Agreement. The term of this Agreement (the 'Term ") shall begin on the Effective Date and continue for a term of twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement, or extended pursuant to the provisions and conditions of Section 11. 18 • • 8.3 Assignment. OWNER has the absolute right to assign its rights and /or delegate its obligations under this Agreement and the Development Plan as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as OWNER owns /leases any part of the Property, OWNER may (at its election) assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by OWNER of the corresponding obligations. Upon any assignment of all or a portion of the Property, OWNER shall be released from all obligations under this Agreement that relate to the portion of the Property being transferred as of the date the assignment is effective. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the Assignee. If an Assignee is in Default, then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii) be a basis for an enforcement action against them. 8.4 Amendment of Agreement. (a) Consent. Subject to the provisions of Subsection 8.4(b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code, the Newport Beach Municipal Code and this Agreement. After any amendment, the term "Agreement' shall refer to the amended Agreement. (b) Amendments. The Parties acknowledge that OWNER may determine that amendments to the Development Plan and /or Project Approvals are appropriate and desirable. In such event, OWNER may apply in writing for an amendment to prior Project Approvals or the Development Plan. CITY shall process and act on the application. CITY shall have no obligation to grant any application that amends the permitted land uses, the overall intensity or density of the Project, or otherwise is an amendment of the Development Plan that could have one or more significant adverse environmental impacts. Any approved amendment shall be incorporated into this Agreement by reference and may be further amended from time to time as provided in this Section. 8.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns, provided, however, in the event of a Default the remedies shall be limited to those specified in Section 10.7. 8.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: 19 (a) Expiration of the term in accordance with Section 8.2; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the CITY to set aside, withdraw, or abrogate the CITY's approval of this Agreement or any material part of the Project or Project Approvals; or (c) The effective date of a Party's election to terminate the Agreement as provided in Section 10.3 of this Agreement. 8.7 Right to Terminate Upon Specified Events. Notwithstanding any other provision of this Agreement, OWNER retains the right to terminate this Agreement upon thirty (30) days written notice to CITY in the event that OWNER reasonably determines that continued development of the Project consistent with the Development Plan has become economically infeasible due to changed market conditions, increased development costs, burdens imposed by the CITY or other governmental entity as conditions to future discretionary approvals of the Project consistent with this Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by OWNER to be inconsistent with the Development Plan, or similar factors. 9. CONFLICTS OF LAW. 9.1 Conflict with State and Federal Laws and Regulations. Where State or federal law or regulation prevents compliance with one or more provisions of this Agreement, those provisions shall be modified to the minimum extent necessary to comply with the State or federal laws or regulations, and the modified Agreement shall remain in effect, subject to the following: (a) The CITY shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding, based on substantial evidence in the record of a public hearing where OWNER has notice and an opportunity to present evidence, that the modification is required (as opposed to permitted) by State and federal law or regulation; (b) The modifications must be limited to those required (as opposed to permitted) by the State or federal law or regulation; (c) The modified Agreement must be consistent with the State or federal law or regulation requiring the modification; (d) The intended material benefits of this Agreement must still be received by each of the Parties after modification; and 20 • • (e) The modification and any applicable local, State, or federal law or regulation does not render the modified Agreement impractical to enforce; 9.2 Controlling Law. This Agreement shall be governed by the laws of the State of California. 10. DEFAULT, REMEDIES AND TERMINATION. 10.1 General Provisions. In the event of a Default the Party alleging a Default shall give the other Parry a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period then a Default shall be deemed not to exist. Neither Parry shall initiate nor pursue legal proceedings if the Default in question is not susceptible of cure within the applicable Cure Period, and the Defaulting Party commences its cure within the Cure Period and diligently pursues the cure to completion. 10.2 Option to Institute Legal Proceedings or to Terminate. The noticing Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the noticing Party intends to terminate the Agreement and the alleged Default is not cured within the Cure Period. The City Council shall, no later than forty-five (45) days after a Notice of intent is served on either Party, hold a public hearing in the manner specified in the Government Code and /or the Municipal Code to consider and review the alleged Default. 10.3 Notice of Termination. After the public hearing described in Section 10.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party. The Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council at the public hearing establishes the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 12.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 10.5 Default by OWNER. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have 21 no obligation to perform any of CITY's obligations under this Agreement (as opposed to the CITY's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of competent jurisdiction. The CITY's election not to perform as permitted by this provision shall not constitute a Default. 10.6 Default by the CITY. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have no obligation to perform any of OWNER's obligations under this Agreement, unless otherwise ordered by a court of law. However, OWNER shall not be entitled to receive Project Approvals or take any other action inconsistent with provisions of the Development Plan, the Newport Beach General Plan, or relevant zoning ordinances unless otherwise permitted by law. OWNER's election not to perform as permitted by this provision shall not constitute a Default. 10.7 Specific Performance. (a) The Parties agree that, except as provided in Subsection 9.7.b., the loss by either of them of their respective rights under this Agreement would not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and /or injunctive relief. (b) Notwithstanding the foregoing, in the event any development fees or taxes are imposed on development of the Property other than those authorized pursuant to this Agreement or the Development Plan, OWNER shall be entitled to recover from CITY restitution of all improperly assessed fees or taxes, together with interest thereon at the maximum allowable non - usurious rate from the date such sums were paid to CITY to the date of restitution. 10.8 Effect of Termination. The termination of this Agreement shall not affect the rights, duties and obligations, if any, of any successor to OWNER to comply with the Project Approvals. . 11. ENCUMBRANCES AND RELEASES ON PROPERTY. 11.1 Discretion to Encumber. This Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvements. 11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon written request to CITY, be entitled to receive from CITY written notification of any default by Owner of the performance of OWNER's obligations under this Agreement P*A 0 0 which has not been cured within thirty (30) days following the date of the Notice of such default. (a) Notwithstanding OWNER's default, this Agreement shall not be terminated by CITY as to any Mortgagee to whom Notice is to be given and to which either of the following is true: (i) The Mortgagee cures any default by OWNER involving the payment of money within sixty (60) days after the Notice of default; provided, however, that if any such default cannot, with diligence, be cured within the sixty (60) day period, then the Mortgagee shall have additional time as may be reasonably necessary to cure the default if the Mortgagee commences the cure within the sixty (60) day period and diligently pursues the cure to completion. (ii) As to defaults requiring title or possession of all or a portion of the Property to cure: (i) the Mortgagee agrees in writing, within sixty (60) days after receipt from CITY of the written Notice of default, to perform the proportionate share of OWNER's obligations under this Agreement allocable to that part of Property in which the Mortgagee has an interest conditioned upon the Mortgagee's acquisition of the required portion of the Property by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the Mortgagee commences foreclosure proceedings to reacquire title to the Property or applicable portion thereof within the sixty (30) days and thereafter diligently pursues foreclosure to completion; and (iii) the Mortgagee promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event of any Mortgagee records a Notice of default as to its mortgage or deed of trust, CITY shall consent to the assignment of all of OWNER's rights and obligations under this Agreement to the Mortgagee or to any purchaser of OWNER's interest at a foreclosure or trustee sale and OWNER shall remain liable for such obligations unless released by CITY or unless the applicable portion of OWNER's Property is transferred. (b) Notwithstanding Subsection 11.2.a. of this Agreement, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving OWNER, the times specified in Subsection 11.2.a of this Agreement for commencing or prosecuting foreclosure or other proceedings shall be tolled during the period of the prohibition. (c) OWNER's execution or breach of this Agreement shall not defeat, render invalid, diminish or impair the lien of any existing or future 23 0 • mortgage or deed of trust on OWNER's Property made in good faith and for value. 11.3. Mortgagee Not Obligated, Except as provided in this Agreement, no Mortgagee shall have an obligation or duty under this Agreement to perform the obligations of OWNER or other affirmative covenants of OWNER or to guarantee such performance. No Mortgagee shall be liable for any Default or monetary obligations of OWNER arising prior to acquisition of title to the Property by the Mortgagee or their respective successors or assigns. However, to the extent any covenant to be performed by OWNER is a condition to the performance of a covenant by CITY, the performance shall continue to be a condition precedent to CITY's performance. In the event a Mortgagee elects to develop the Property in accordance with the Development Plan, the Mortgagee shall be required to assume and perform the obligations or other affirmative covenants of OWNER under this Agreement. 12. MISCELLANEOUS PROVISIONS. 12.1 Notices. All Notices shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; and, (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt. Notices shall be addressed as follows: To the CITY: City Manager - City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Manager To OWNER: Koll Center Newport Number A 4343 Von Karman Ave. Newport Beach, CA 92660 Attn: Don Koll CC: Starpointe Ventures Either party may give the other a "Notice of a New Address" to modify this Subsection. 12.2 Enforcement Delay: Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non - performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by 24 i • governmental entities other than CITY, suspension of rights in accordance with the existence of unforeseen circumstances, governmental moratorium other than a moratorium enacted by CITY, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon, but in no case shall the extension of time for performance exceed six (6) months. 12.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the prior intent of the Parties and the Party substantially benefited by the material provision does not waive its rights under the unenforceable provisions, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 5 are deemed "material ". 12.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter. This Agreement supersedes all negotiations and previous offers and understandings between the Parties regarding the subject matter. 12.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything that has the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to obtain any permits from other public agencies that may be required for development of the Project. OWNER may challenge any ordinance, measure, moratorium, or other limitation in a court of law if litigation is necessary to protect the development rights vested in the Property pursuant to this Agreement. 12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably be relying on CITY's performance of its covenants in this Agreement when OWNER invests money and effort in construction of the Project. 12.10 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute documents, with acknowledgment or affidavit if reasonably required, and take any other action reasonably necessary to implement the 25 0 0 terms and conditions of this Agreement or permit development of the Project in accordance with the Development Plan. 12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and assigns of the Parties. 12.12 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the Sections and Subsections are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement does not, and is not intended to, impermissibly contract away the police power, legislative authority or governmental functions of the CITY in general or with respect to the Property. 12.13 Authority to Execute. The person executing this Agreement on behalf of OWNER warrants and represents that he /she has the authority to do so and the authority to bind OWNER to the performance of OWNER's obligations under this Agreement. 12.14 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not be unreasonably withheld. 12.15 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 12.16 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the CITY and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement s is a ministerial act and the failure of the CITY to record the Agreement as required by this Section and Government Code § 65868.5 does not make the Agreement void or ineffective. 12.17 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California. 12.18 Attorneys' Fees. In any arbitration, quasi-judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. ` -1 0 0 12.19 Relationship of the Parties. The contractual relationship between CITY and OWNER arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of any legal action filed and prosecuted by any person or entity other than the Parties that challenges the validity or manner of approval of this Agreement, the Project Approvals or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and hold harmless the CITY and its officers and employees with respect to any costs, expenses, judgment, damages or award, including an award of attorney fees and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER acknowledges and agrees that CITY has fully complied with all applicable statutes, ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and Existing General Regulations in the initiation, processing, evaluation and approval of all Project Approvals. OWNER's obligations pursuant to this Section shall commence as of the Approval Date and continue for the period specified in Section 8.2 or until this Agreement terminates, whichever occurs first. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of the CITY or its officers or employees that occurred on or before the Approval Date. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud, willful misconduct or violation of law by the CITY or its officers and employees that occurs after the Approval Date. 12.21 Payments. Any payment due pursuant to this Agreement shall bear interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date due until paid with interest compounded monthly. Dated: 2000 CITY OF NEWPORT BEACH By: Mayor Dated: 2000 KOLL CENTER NEWPORT NUMBER A in 27 0 t \userslcatlshared\bumham\kollda I02500.doc FW Ci 0 ORDINANCE NO. 2001-12 0 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A ZONING AMENDMENT INCREASING THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [ZONING AMENDMENT 9051 WHEREAS, Koll Center Newport Number A ( "Developer"), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan Amendment (GPA 97 -3(B)) and a Zoning Amendment for "Office Site B" of the Koll Center Newport (KCN) .Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B to a total of 1,201,349 net square feet while eliminating restaurant and retail- service uses; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Zoning Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Zoning Amendment, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties a notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning Amendment 905: 1 0 0 1. The amendment is consistent with the General Plan assuming that GPA 97 -3(B) is approved by the electorate pursuant Section 423 of the City Charter in that it provides for an increase in square footage commensurate with that allowed by GPA 97 -3(B). 2. The internal consistency of the Planned Community text will be retained in that all development square footages and open space acreages have been adjusted to retain appropriate development and open space percentages. SECTION 3: ZONING AMENDMENT. 1. The City Council hereby adopts, by reference, the CEQA- required "Statement of Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations ", attached as Exhibit "EIR -2" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby finds that the benefits override the identified adverse environmental impacts. 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution certifying the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MMRP. 4. In light of the preceding findings and actions, the City Council hereby approves Zoning Amendment 905, consisting of the amendments to the Koll Center Newport Planned Community Development Standards specified in Exhibit "ZA -1 ", attached hereto, subject to the mitigation measures identified in the Environmental Impact Report and listed in Exhibit "EIR -5" as conditions of approval of the Zoning Amendment, as stipulated in Exhibit "ZA -1 ". SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the Ordinance shall become effective upon certification by the City Clerk to the 2 City Council that GPA 97 -3(B) has been approved by the electorate pursuant to Section 423 of the City Charter. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on July 10, 2001 and adopted on July 24, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK EXHIBIT ZA -1: KOLL CENTER NEWPORT PLANNED COMMUNITY TEXT AMENDMENT (AMENDMENT NO. 905) The Planned Community Development Standards for Koll Center Newport is amended as follows: Page 1: DEVELOPMENT CONSIDERATIONS First Two Paragraphs: [No changes] Insert New Third Paragraph: "All development and land use within the Kell Center Newport Planned Community shall be subject to implementation of the mitigation measures specified in the applicable Environmental Impact Report Mitigation Monitoring and Reporting Program (MMRP) for that project and /or land use (including, but not limited to, the MMRP related to EIR No. 158 for the Koll Office Site B expansion project)." (TBD) Remainder of Section on [No changes] "DEVELOPMENT CONSIDERATIONS" Pages 1416: PART 11. COMMERCIAL Section I. Site Area and Building Area Interior noise shall be mitigated to the levels prescribed in the Airport Environs Land Use Plan and the City of Newport Beach General Plan Noise Element. Also, rooftop obstruction lighting shall be provided for buildings ten stories or higher in accordance with Federal Aviation Administration standards. Group I. PROFESSIONAL & BUSINESS OFFICES Acreages shown are net buildable land area, including landscape setbacks with property lines. (4) A. Building Sites [No changes] B. Allowable Building Area Note: Building areas shown in this Part II are net floor areas, excluding non - habitable space such as equipment rooms, elevator shafts, stairwells, etc. (Net floor areas shall generally be taken as 95 percent of gross floor area.) ri Site A: 340,002 square feet (16) Site B: 1,201,349 square feet (13)(16) (TBD) Site C: 674,800 square feet (10)(15) Site D: 240,149 square feet (8)(13) Site E: 32,500 square feet (4) Site F: 24,300 square feet (4) Site G: 45,000 square feet (8) 2,558,100 square feet (15) (TBD) C. Statistical Analysis (4) The following statistics are for information only. Development may include but shall not be limited to the following: Story heights shown are average heights for possible development. The buildings within each parcel may vary. Assumed Parking Criteria: a. [No changes] b. For Sites A, B and C, the Parking Pool Exception of Part III, Section I -B shall apply: (11) (TBD) • For the first 125,000 square feet, parking shall be provided at one space per 250 square feet of net floor area. • For the next 300,000 square feet, parking shall be provided at one space per 300 square feet of net floor area. • For any additional floor area, parking shall be provided at one space per 350 square feet of net floor area. C. Parking structures within commercial and office sites shall incorporate the following design features in order to soften their visual impacts: • The sides of parking structures open to public view shall be textured and colored or faced with brick or other material consistent with the structure's associated buildings. Exposed, uncolored concrete sides shall be avoided. • Linear planters and/or trellises with shrubs and cascading vines shall be provided along the outside of parking levels visible from public roadways. • For the two -level parking structure in Office Site B nearest the intersection of MacArthur boulevard and W 2. Jamboree Road, trees within planters and /or trellis structures with trailing vines shall be provided within the interior of the top parking level. Also, the finish grade of the top level of this parking structure shall substantially match and follow the pre - existing surface grade and shall not extend more than two feet above the pre - existing surface grade at any point. In Office Site B, in order to ensure implementation of the preceding design features, site, grading, landscape, and architectural plans for both parking structures in that Site shall be submitted by the developer to the Planning Commission for review and approval prior to the issuance of any building permits. These plans shall conform to the preceding design requirements and the applicable development agreement. Site A [No changes] Site B Allowable Building Area: 1,201,349 net square feet (13)(16) (TBD) Site Area: 43.703 acres (4)(11) a. Building Height. Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development Land Coverage (16) (TBD) 13.93 acres 9.29 acres 6.97 acres 5.57 acres 4.64 acres 3.98 acres 3.48 acres 3.10 acres 2.79 acres 2.53 acres 2.32 acres b. Parking Land Coverage (11)(13K16XTBD) 3,719 cars 19.35 acres c. Landscaped Open Space Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development 0 (11) Land Coverage (11)(13H16XTBD) 10.42 acres 15.06 acres 17.38 acres 18.78 acres 19.71 acres 20.37 acres 20.873 acres 21.25 acres 21.56 acres 21.82 acres Twelve story development 22.03 acres [No changes in remainder of Paragraph CJ Pages 21 -24: Group V. RESTAURANTS (1)(4) A. Building Sites 4 C. Maximum acreages for Site 2 shall not exceed 1.25 (18) acres. Maximum acreage for Site 3: 1.765 acres. Maximum acreages for Sites 4 and 5 shall not exceed 3.0 acres. Maximum acreage for Sites 6 and 7 shall not exceed 2.2 acres. (8) (The following acreages are for information only.) Site 1 Deleted (see Group VII) (18) Site 2 transferred to office use (TBD) Site 3 1.765 acres Site 4 1.50 acres Site 5 1.50 acres Site 6 1.50 acres (8) Site 7 0.70 acres (8) 6.965 acres (TBD) Site 1 Deleted see Group VII Private Club (18) Site 3 located within Office Site "F". (4) Sites 4 and 5 located within Office Site "B ". (4) (16) (TBD) Sites 6 and 7 located within Office Site "G ". (8) Any portion or all of the restaurant, bar, theater /nightclub acreage for Sites 4, 5, 6, or 7 not utilized for that purpose shall revert to professional and business office use. Any portion or all of the restaurant acreage for Site 3 not utilized for that purpose shall revert to either professional and business office use or service station use.(4x8) (18) The following statistics are for information only. Development may include but shall not be limited to the following: Building Area (4) Site 3 10,000 sq. ft. 0.22 acres Site 4 7,000 sq. ft. 0.16 acres Site 5 7,000 sq. ft. 0.16 acres Site 6 (8) 7,000 sq. ft. 0.16 acres Site 7 (8) 3,000 sq. ft. 0.07 acres Total: 34,000 sq. ft. 0.78 acres(8)(18)(TBD) Parking 7 A E. 0 0.70 acres 0 Criteria: 300 occupants /10,000 sq. ft. 0.76 acres 1 space /3 occupants and 120 cars per acre. Site 3 100 cars 0.84 acres Site 4 70 cars 0.58 acres Site 5 70 cars 0.58 acres Site 6 (8) 70 cars 0.58 acres Site 7 (8) 30 cars 0.25 acres Total: 340 cars 2.83 acres(8X 1 8XTBD) Landscaped Open Space (4) Site 3 0.70 acres Site 4 0.76 acres Site 5 0.76 acres Site 6 (8) 0.76 acres Site 7 (8) 0.38 acres Total: 3.36 acres (8)(18)(TBD) Building Height Building height of structures shall be limited to a height of thirty -five (35) feet. Group VI. RETAIL & SERVICE CENTER 0 A C. sa Building Sites (4) (5) (TBD) Site 1: 5.026 acres 5.026 acres Allowable Building Area (5) (TBD) `Retail Site No.1 (sq. ft.) 102,110 sq. ft. (14) [No changes in remainder of Paragraph B.] Landscape Area (5) Twenty -five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 shall be developed as landscape area. If twenty -five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 is not developed as landscape area, a specific site plan shall be submitted to the City of Newport Beach Planning Commission for approval prior to the issuing of a building permit. Statistical Analysis (5) The following statistics are for information only. Development may include but shall not be limited to the following. U 0 0 Assumed parking criteria: One (1) space per 200 square feet of net building area at 120 cars per acre. 1. Site 1. [No change] 2. Site 2 (TBD) E. Building Height Building height of structures shall be limited to a height of thirty -five (35) feet above mean existing grade as shown on Exhibit "B ". (5) Page 52: [In PART VI, Add the following amendment footnote:] (TBD) Planned Community Text revisions (Amendment No.905, adopted Ordinance ) including the following changes: a. Increase the allowable building area in Professional and Business Office Site "B" by 237,500 net square feet. b. Convert Restaurant Site 2 (5,000 net square feet) to professional and business office use within Office Site "B ". c. Convert Retail and Service Center Site 2 (10,000 net square feet) to professional and business office use within Office Site "B ". F: \users\cat\s hared \da \Ordinance \KollZoning C lean.d oc M July 17,2001 City Council of Newport Beach 3300 Newport Blvd. Newport Beach CA 92660 Honorable Mayor and Members of the City Council: 0 RECEIVED 001 .111! 18 A10:20 OFFICE OF THE CITY CLERK CITY OF NLWPORT BEACH The timing of the Koll expansion is all wrong. The City is in the process of updating the General Plan and creating a Specific Area Plan for the airport area. This expansion beyond the current General Plan should not be granted until these updates are completed. The City is desperately trying to extend the caps on John Wayne Airport. It does not make sense to, at the same time, approve a project of this magnitude in the airport area which will increase demand for air travel from John Wayne Airport. What fodder for the propangandists who want the expansion of JWA! How can you figure fair share costs of a fire station until the SAP is completed showing what development will be allowed? What traffic improvements do you intend to buy with 3 '/2 million dollars? How much does a graded intersection cost? Traffic is already congested at Jamboree/MacArthur, according to Mayor Adams. He said he had an idea to alleviate the problem, but he did not share it with the public. Planning Director Patty Temple stated that the project will result in unmitigated traffic problems, and EQAC raised several questions about traffic and parking that have gone unanswered. For all of these reaasons, I urge you to deny the Koll project without prejudice pending completion of the SAP for the airport area. Sincerely yours, Elaine Linhoff 1760 E. Ocean Blvd. Balboa CA 92661 0 is • • ORDINANCE NO. 2001-11 (REVISED PER THE 6 -26 -01 COUNCIL MEETING) July 10, 2001 Agenda Item No 7 -3q 33 AN ORDINANCE OF THE CITY COUNCIL OF THE 1 CITY OF NEWPORT BEACH APPROVING A ; `L- I 0 1 { DEVELOPMENT AGREEMENT FOR KOLL j CENTER NEWPORT OFFICE SITE BI U [DEVELOPMENT AGREEMENT N0.16] 'apJ1 _ t 1 a vv; _ t. _ WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit "DA -1" : and WHEREAS, the Development Agreement provides for certain rights, obligations, and assurances on the parts of both the City and the Developer; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Development Agreement; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Development Agreement, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the project addressed by the Development Agreement. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a Development Agreement for the proposed project. The Development Agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items. Although this discretionary action was not identified in the project description contained in the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the Development Agreement. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: DEVELOPMENT AGREEMENT. a. The Development Agreement is consistent with the objectives, policies, general land uses, and programs of the General Plan of the City in that it supports and implements the project and its associated General Plan Amendment and Zoning Amendment, which provide for land use designations and other components which are consistent with the General Plan, as amended. 0 Z . b. The City Council hereby approves and adopts the Development Agreement, attached hereto as Exhibit "DA -1". The Mayor is hereby authorized to execute the Amendment and, following such execution, the City Clerk shall cause a copy thereof to be recorded with the Orange County Recorder. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on June 26, 2001 and adopted on July 10, 2001 by the following vote, to wit: ATTEST: CITY CLERK u AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR 3 Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND KOLL CENTER NEWPORT NUMBER A Approved July 10, 2001 Ordinance No. 2001 -11 • • 0 9 0 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is executed as of 2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and KOLL CENTER NEWPORT NUMBER A ( "OWNER "). 1. RECITALS. 1.1 Property /Ownership Status. OWNER owns all of the real property ( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of approximately five (5) acres. 1.2 Planning Status. The Property comprises a portion of Office Site B" known as "Professional and Business Office Site B" of the Koll Center Newport Planned Community, which is currently entitled with approximately one million (1,000,000) square feet of office development. 1.3 Project. OWNER has asked CITY to approve a general plan amendment, zoning amendment and related permits that would authorize the construction of approximately two hundred and thirty -five thousand (235,000) square feet of additional office use on the Property. 1.4 Hearings. The Newport Beach Planning Commission (Planning Commission) and the Newport Beach City Council (City Council) have conducted all required public hearings on the Project and certified an Environmental Impact Report for the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance with applicable provisions of State law and the Newport Beach Municipal Code. 1.5 General Findings. The Planning Commission and City Council have determined that the Project and all Project Approvals are consistent with all elements of the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the CEQA Guidelines. The Project and all Project Approvals are also consistent with all other relevant plans, policies, ordinances, resolutions and regulations of the CITY. 1.6 Affordable Housing. The CITY and OWNER have determined that the Project does not constitute a residential development subject to the terms and conditions of the CITY's Housing Element. Accordingly, no present or subsequently enacted affordable housing requirement or housing in lieu fee shall be required of OWNER. \ \MI S_1 \$YS \USERS \P LN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 5 0 0 1.7 Purpose of Agreement. The purposes of this Agreement are as follows: (a) To provide for the orderly completion of development of the Property consistent with the Project Approvals, Project Conditions and this Agreement. (b) To provide the CITY and OWNER with certainty that the Project will be developed and maintained as contemplated by the Project Approvals, Project Conditions and the Development Plan. (c) To provide assurance to OWNER that OWNER may proceed with the Project, subject to compliance with Project Conditions, in accordance with the laws, policies, rules, ordinances, resolutions and regulations of the CITY in effect as of the Approval Date. (d) To strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic cost of development, mitigate the impacts of development, and provide public benefits in excess of those normally secured through the planning process. 1.8 Authorization. This Agreement is authorized by, and is consistent with, the provisions of §§ 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.9 Police Power. The City Council has determined that this Agreement: (a) Is in the best interests of the health, safety and general welfare of the CITY, its residents and the public; (b) Was entered into pursuant to, and is a valid exercise of, the CITY's police power; and (c) Has been approved in accordance with the provisions of State and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On June 26, 2001, after giving appropriate notice and holding all appropriate public hearings, the City Council conducted the first reading of Ordinance No. 2001 -11 authorizing the CITY to enter into this Agreement. The City Council approved the Adopting Ordinance on July 20, 2001, after giving appropriate notice and holding all appropriate public hearings. The Adopting Ordinance shall be considered effective as specified in Section 8.1. 1.11 CEQA Review. The City Council has independently reviewed, approved and certified the EIR for the Project. In so doing, the City Council determined, among \ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYCN L\2001 \0626 \da062601 cln.doc 1] 0 0 0 0 9 other things, that the EIR was prepared in full compliance with CEQA and the CEQA Guidelines. The City Council also adopted all feasible mitigation measures, made appropriate findings and adopted a statement of overriding considerations with respect to any significant effect that could not be mitigated to a level of insignificance. The City Council also adopted a Mitigation Monitoring Program for the Project as required by CEQA and the CEQA Guidelines. 2. DEFINITIONS. 2.1. "Adopting Ordinances" refers to: (a) Ordinance No. 2001 -12 adopted by the City Council on July 10, 2001, approving Zoning Amendment No. 905; (b) Ordinance No. 2001 -11 adopted by the City Council on July 10, 2001, approving this Agreement; (c) Resolution No. 2001 -56 adopted by the City Council on June 26, 2001, approving GPA 97 -3(B); (d) Resolution No. 2001 -55 adopted by the City Council on June 26. 2001, approving Traffic study No. 119 and making findings pursuant to Chapter 15.40 of the Code; (e) Resolution No. 2001 -54 adopted by the City Council on June 26. 2001, certifying the EIR as fully compliant with CEQA and the CEQA Guidelines, adopting all feasible mitigation measures, and containing the statement of overriding considerations. 2.2. "Agreement" refers to this Development Agreement. 2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith compliance with this Agreement, as set forth in Section 7. 2.4 "Approval Date" means July 10, 2001, the date on which the City Council approved the Adopting Ordinances. 2.5 "Assign" means all forms of use of the verb "assign" and the nouns "assignment" and "Assignee" shall include all contexts of hypothecation, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California. \ \MIS_ 1 \SYS \USE RST LN \SHAR ED \t CITYCNL\2001 \0626 \da062601 cln. doc 9 • 2.7 "CITY" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the CITY. 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Article 10. 2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while an "OWNER Default" refers to a Default by OWNER. 2.12. "Develop" means all forms of use of the verb "develop" and the noun "Development ", whether or not capitalized, means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and parking facilities and improvements. "Develop" or "Development" also includes the maintenance, repair, alteration, reconstruction or redevelopment of any building, structure, improvement, landscaping or facility after the initial construction and completion so long as consistent with the Project Approvals, the Development Plan and this Agreement. "Develop" or "Development" also includes the use of the Property in a manner consistent with the permitted general, primary, and secondary uses as set forth in the PC Text and the Development Plan. 2.13. "Development Plan" means and constitutes the plan for the development of the Property, as embodied and stated in the Project Approvals, Project Conditions and this Agreement. 2.14. "Effective Date" shall be the date this Agreement becomes effective as specified in Section 8.1. 2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No. 99091120) prepared for the Project and certified as fully compliant with CEQA and the CEQA Guidelines by the CITY Council on the Approval Date. 2.16. "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 7.4. 2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are as follows: \ \MIS 1 \SYS\ USERS \PLN\ SHARED \1CITYCNL\2001 \0626 \da062601cin.doc E 9 • 1 0 Exhibit : Description: A Legal Description of the Property B Map depicting the Property C Project Approvals comprising the Development Plan D List of Project Conditions 2.18.. "Existing General Regulations" means those General Regulations approved by the CITY on or before the Approval Date (irrespective of their Effective Date) and not rescinded or superseded by CITY action taken on or before the Approval Date. 2.19. "Future General Regulations" means those General Regulations adopted or approved by the CITY in any way, after the Approval Date. 2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the CITY on or before the Approval Date as part of the Project Approvals, Project Conditions or the Development Plan. 2.21. "General Plan Amendment" or "GPA" means General Plan Amendment 97 -3(B) amending the General Plan of the CITY as approved by the City Council on June 26, 2001 if and when approved by the voters pursuant to Section 423 of the City Charter. 2.22. "General Regulations "means all laws, ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and permitted uses of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property and provisions relating to applicable fees, charges, assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO), the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water and sewer connection fee ordinances. General Regulations do not include any CITY ordinance, resolution, code, rule, regulation or official policy identified in or governing the following ( "Governmental Exceptions "): (a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 (except Chapters 15.38 and 15.40) and of the Newport Beach Municipal Code; (b) Property taxes and assessments; (c) The control and abatement of Nuisances (subject to the provisions of Section 3.4); \ \MI S_t \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 0 0 (d) The exercise of the power of eminent domain; (e) The provision of, or charges for, water, sewer, refuse, police, fire and other municipal services that are generally applicable to all owners or lessees of commercial property in the CITY; and (f) The manner in which property is used that are related to the amount and time of noise from permitted activities, the use of alcohol, and the nature and timing of special events. 2.23. "Governmental Reservations" refers to those actions that CITY may take that may affect the Project or the operation of the Project, as follows: (a) Enforcement of the specific provisions, limitations and restrictions contained in the Project, Project Approvals, Development Plan and Project Conditions; (b) Enforcement of the provisions and conditions of this Agreement; (c) Enforcement of, or pursuant to, Governmental Exceptions or Governmental Reservations; and (d) Enforcement of Existing General Regulations 2.24. "Include" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.25. "OWNER" refers to Koll Center Newport Number A, a California general partnership. 2.26. "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all or a portion of OWNER's interest in the Property is used as security. 2.27. "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY or OWNER. 2.29. "PC Text" refers to the "Koll Center Newport Planned Community Development Plan" as amended by the City Council on the Approval date and any subsequent modification of the PC Text with respect to the Property that are approved by the City Council and to which OWNER consents. Except for the modifications expressly permitted by the terms of this Agreement, OWNER shall be under no obligation to consent to modifications of the PC Text WIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc /0 0 0 S2.30. "Planning Commission" refers to the Planning Commission of the CITY. 2.31. "Project" refers to the existing and proposed development of the Property pursuant to, and consistent with the Project Approvals, consistent with and subject to Project Conditions, and as described in the Development Plan. The Project includes those improvements existing on the Property as of the Approval Date. 2.32. "Project Approvals" refers to all approvals, amendments, permits, licenses, consents, rights and privileges, and other actions required or authorized to be approved, issued or taken by CITY in connection with development of the Property, including but not limited to the following discretionary actions: . (a) General Plan Amendment No. 97 -3(B); (b) Zoning Code Amendment No. 905 (Koll Center Newport Planned Community Development Plan); (c) Traffic Study No. 119; and (d) Environmental Impact Report No. 158 (State Clearinghouse No. 99091120). Project Approvals also means any grants of easements, vacations, subdivisions, resubdivisions, lot line adjustments or other actions necessary to the implementation of the Project. Project Approvals also include any and all discretionary or ministerial permits related to construction of the Project including grading permits, building permits, and occupancy permits. 2.33. "Project Conditions" means all conditions to OWNER's right to proceed with Development pursuant to the Project Approvals, including the provisions of this Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by the City Council, conditions to approval of the Traffic Study, conditions to Project Approvals, Existing General Regulations and Governmental Reservations. The Project Conditions are generally described in Exhibit D. The term Project Conditions does not included the requirement for voter approval pursuant to Section 423 of the City Charter. 2.34. "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B ". 2.35. "Subsequent Development Permits" means all Project Approvals granted or issued by the CITY subsequent to the Approval Date in connection with development of the Property. \ \MIS_t \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 0 0 2.36. "Vested Entitlement" or "Entitlement" refers to the development rights granted OWNER pursuant to this Agreement and the Project Approvals that are subject to Project Conditions. 3. DEVELOPMENT OF THE PROPERTY 3.1 Development Program. Upon the Effective Date, this Agreement vests OWNER's right to proceed with the development described in the Project Approvals and Development Plan. OWNER acknowledges that its right to proceed with the Vested, Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants no assurance that OWNER will receive necessary permits or approvals from any other public agency with jurisdiction over the Project or that Project Approvals will not be subject to and affected by legal or other challenges or procedures initiated by third parties. (a) Permitted Uses. The Property shall be used and developed only in the manner provided in the Project Approvals and the Development Plan. CITY acknowledges that, from time to time, OWNER may seek and obtain, in accordance with applicable provisions of State and local law, minor amendments to the Development Plan and the Project Approvals. The Planning Director of the CITY ( "Planning Director') shall determine, subject to appeal by OWNER to the Planning Commission, whether a • proposed amendment is a "minor amendment" for purposes of this Agreement. A minor amendment is one that does not increase vehicular trips or other environmental impacts associated with Project Approvals or the Development Plan. (b) Permitted Density of Development. OWNER shall have the vested right to develop the Property and receive the CITY's approval of all Project Approvals consistent with the permitted density and level of intensity authorized by the Project Approvals and as described in the Development Plan. The CITY shall not impose any condition on any Project Approval that reduces the permitted density and level of intensity allowed in the Development Plan and discretionary Project Approvals. CITY acknowledges that the boundaries of the parcels shown on the Development Plan and the Project Approvals are approximate and are subject to minor variation prior to recordation of final map(s) for the Project, provided OWNER complies with the applicable procedures for subdivision maps. CITY may impose standard conditions of approval on any subdivision or resubdivision requested by OWNER so long as the condition(s) do not reduce the permitted density or intensity, or substantially increase the cost of the development, allowed in the Project Approvals and described in the Development Plan. . \ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc I) (c) Maximum Height and Size of Structures. OWNER shall have the vested right to develop the Property with the maximum height and size of structures as set forth in the Development Plan and the Project Approvals. 3.2 . Compliance with Project Conditions. OWNER acknowledges that City Council approval of the Project Approvals, the Development Plan and this Agreement is subject to compliance with the Project Conditions. The Project Conditions are, among other things, designed to minimize or eliminate any adverse impacts of the Project and protect and enhance the environment. In certain instances, the Project Conditions exceed those that might otherwise be appropriate under "nexus" and "rough proportionality" tests recently articulated by the courts. By entering into this Agreement, OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any Project Conditions imposed by the CITY after the Effective Date shall be consistent with the Project Approvals, Development Plan and this Agreement. Owner also agrees to abide by any conditions or modifications to the design of the Project resulting from Project Conditions that authorize review by the City subsequent to the Approval Date. 3.3 Compliance with General Regulations. OWNER shall comply with the Existing General Regulations. Except as otherwise specified in this Agreement, OWNER shall not be obligated to comply with any Future General Regulations that are in conflict with the Development Plan or this Agreement. Any Future General • Regulation(s) that are inconsistent with this Agreement and /or the Development Plan and which do not fall within the definition of Governmental Reservations or Governmental Exceptions shall not be applicable to the development or use of the Property. With respect to Existing General Regulations that require the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect on the Approval Date subject to any automatic increases or decreases mandated by the text of the Existing General Regulation as of the Approval Date. OWNER shall, however, comply with: (a) any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan or increase OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether adopted before or after the Approval Date by the CITY, which are in effect at the time applications for specific Project Approvals are submitted. 3.4 Public Health and Safety /Uniform Codes. This Agreement shall not prevent the CITY from adopting, and applying to the Project, Future General Regulations, including Uniform Codes (as referred to above), that are based on recommendations of a multi -state professional organization relating to the specifications for the constructions of improvements ( "Building Codes ") and become applicable throughout CITY. This Agreement shall not prevent the CITY from adopting, and applying to the Project, conditions inconsistent with the Development Plan or Project Approvals, when the conditions are adopted by the City Council after a noticed public hearing and pursuant to a determination by the City Council that the conditions are WIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 13 0 0 necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a determination of Nuisance unless the OWNER has been given notice of, and the right to present evidence at, a public hearing. Any determination of Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must be supported by substantial evidence in the record of the hearing. 4. BENEFITS TO OWNER. 4.1 Right to Develop. Upon the Effective Date and during the term of this Agreement, OWNER shall have a vested right to develop, and receive building and occupancy permits for construction on, the Property to the full extent permitted by the Project Approvals and the Development Plan subject to the Project Conditions. CITY shall only take action with respect to the Property that complies and is consistent with the Project Approvals and the Development Plan unless OWNER gives its written consent to the action or CITY is permitted to take the action pursuant to this Agreement. OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY shall not impose or increase any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of and, or any other type of exaction) on the Project, except as expressly permitted by this Agreement, Existing General Regulations, Governmental Reservations or Governmental Exceptions. However, CITY may impose or increase a condition or requirement when such action is required (as opposed to permitted) by State or federal law and then only to the minimum extent and duration necessary to comply with State or federal law. Except as otherwise provided by this Agreement, the ordinances, plans, resolutions, and policies governing the permitted use and development of the Property shall be those described in the Project Approvals and the Development Plan. 4.2 Reservations or Dedications of Land. No dedication or reservation of any portion of the Property shall be required of OWNER in conjunction with the application or issuance of any Project Approval except as may be provided in the Project Approvals, Project Conditions, Development Plan or this Agreement. 4.3 No Additional Traffic Related Fees or Conditions. OWNER's satisfaction of the provisions of Article 5 shall be deemed full compliance with all Existing General Regulations, Future General Regulations and CEQA relative to traffic impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or increase the amount of any traffic - related fee, charge, dedication, or improvement relative to, or as a condition to, development of the Project. 4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior boundaries of the Property to the extent, and subject to the same conditions, that capacity is provided to similarly situated commercial property in the CITY. OWNER agrees to accept, during the term of this Agreement, all storm drain inflow from facilities in place as of the Effective Date. \ \MIS_7 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc I4 4.5 Park Fees. OWNER and CITY acknowledge that the Project may generate some incidental demand for, and usage of, park and open space land within the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter 19.50 of the Newport Beach Municipal Code) and any Existing General Regulation relating to the dedication of land for park or open space purposes or the payment of park or open space fees. 4.6 Future Impact Fees. Conditions, and Exactions. So long as OWNER is not in default under this Agreement, CITY will not impose, or increase the amount of, any impact fee, condition, mitigation measure, or exaction other than as expressly required by the Project Approvals, Project Conditions, Existing General Regulations, the Development Plan, or this Agreement. CITY shall not, without the written consent of OWNER, form, or cause the formation of, any new governmental entity for the purpose of imposing fees, conditions or exactions the CITY could not directly impose pursuant to this Section. CITY may form or cause the formation of an assessment district (or similar vehicle) comprised of the Property and other property in the area for the purpose of funding public improvements that provide a special benefit to the Property. However, CITY may not include the Property in any assessment district formed to fund construction of public improvements that CITY is prohibited from imposing on OWNER because of this Agreement. 4.7 Time for Construction and Completion of Proiect. OWNER shall have . the right to develop the Project in the manner and at the time that OWNER deems appropriate in the exercise of its business judgment. The Parties acknowledge that OWNER cannot predict the timing of the development of the Project because of numerous factors not within the control of OWNER, such as market demand, economic conditions, interest rates and competition. Subject to compliance with the provisions of this Agreement and Project Conditions, OWNER shall, at any time during the term of this Agreement, be entitled to apply for, and receive, Project Approvals consistent with the Development Plan. 4.8 Development Standards. Because the Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the Existing General Regulations and Future General Regulations is neither necessary nor appropriate. The terms and provisions of the Project Approvals, Development Plan or this Agreement shall prevail in the event of any conflict with Existing General Regulations or Future General Regulations. 4.9 Tentative Maps. (a) Improvement Security. As a condition of approving a final subdivision map or any future resubdivision for all or a portion of the Property, the CITY may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to . the Municipal Code and the Subdivision Map Act. Nothing in this \ \MIS_ 1 \SYS \USERS \P LN \SHARED \1 C ITYCNL\2001 \0626 \da062601 dn.doc 15 0 0 Agreement shall be construed as altering or relieving OWNER of . any obligation imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement requirements, exactions or other conditions of approval of a subdivision map, parcel map or lot line adjustment shall be consistent with this Agreement but CITY may impose standard conditions of approval generally applicable to similar projects subject to the provisions Section 3.1(b). (b) Expiration. Any current or future tentative maps for resubdivision of the Property shall expire concurrently with the termination of this' Agreement or after the maximum period for the expiration of tentative maps authorized by Government Code § 66452.6, whichever is later. Should the time periods authorized by Government Code § 66452.6 be lengthened after the execution of this Agreement, OWNER shall be entitled to further extensions of any tentative subdivision map applicable to the Property, to the maximum extent authorized by law. (c) Resubdivisions. The Parties acknowledge that resubdivisions, lot line adjustments, or similar modifications may be necessary to develop the Project and are contemplated by this Agreement. These modifications or adjustments shall be approved provided they are in substantial conformance with the Development Plan and the Project Approvals. 0 4.10 Processing and Issuance of Permits. (a) Processing of Permits. As a material term of this Agreement benefiting OWNER, the CITY shall promptly accept for processing /review, and expeditiously approve, permit applications for the development and use of the Property that are in substantial conformance with the Project Approvals, Development Plan, Existing General Regulations, and this Agreement. (b) Issuance of Ministerial Project Approvals. CITY shall issue to OWNER all necessary use, building, occupancy, and other permits and approvals upon request, provided that applications are submitted in accordance with the Existing General Regulations and are in substantial conformance with the Project Approvals, Development Plan and this Agreement. (c) Vesting of Project Approvals. Any permit, license or approval issued pursuant to this Agreement shall be vested and deemed a Project Approval when granted. \\MIS_1 \SYS \USERS \PLN \SHARED \t CITYC N L\2001 \0626 \da062601 cln. doc / L-7 4.11 Future Approvals. The future approval or issuance of any Project Approval that is consistent with the Development Plan, including any permit, license or authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations and similar actions shall not require an amendment of this Agreement. 5. PUBLIC IMPROVEMENTS 5.1 Regional Transportation Facilities Fees. OWNER acknowledges that CITY is bound by provisions of ordinances, agreements, rules and regulations related to the financing, construction and operation of major transportation improvements that benefit large areas of Orange County including the Property. OWNER shall comply with the provisions of all such ordinances, agreements, rules and regulations, including the payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers Agreement and /or the Transportation Corridor Agency (collectively, the "TCA "). OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition and /or amount of fees through any procedure adopted or used by the TCA for that purpose. OWNER shall also have the right to commence litigation relative to the amount, method of calculating or timing of any fees or the procedure utilized by the TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless with respect to any loss, damage claim or liability arising out of any litigation commenced by OWNER that is related to this Section. OWNER agrees that satisfaction of the provisions of this Section is a condition to any discretionary or ministerial Project Approval. CITY shall not be required to issue any discretionary or ministerial Project Approval until OWNER provides proof that all fees required to be paid to the TCA, whether pursuant to ordinance, settlement or judgment, have been paid. 5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are based on the one thousand seven hundred and seventy (1770) additional average daily trips generated by the Project multiplied by the current per trip fee of one hundred thirty three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the time specified in Chapter 15.38 of the Code. 5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY for the construction of the circulation system improvements identified in Traffic Study 119 (TPO Improvements). OWNER's contributions to the funding of the TPO Improvements equal or exceed the requirements of the TPO and OWNER's contributions to the funding of the TPO Improvements is in addition to all other fees, charges or contributions required by this Agreement and /or existing General Regulations. OWNER's contribution to the TPO Improvements shall be the sum of seventy thousand dollars ($70,000) to fund construction of a second northbound (MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn lane and the construction of a second northbound (MacArthur) right turn lane at the MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary plans, specifications and cost estimates for the MacArthur Project. The MacArthur \\MIS_ 1 \SYS \USERS \PLN \SHARED \1 CITYCN L\2001 \0626 \da062601 cln.doc I-1 C� E Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree intersection as required by the TPO. The MacArthur Project is anticipated to cost one million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution to the MacArthur Project represents four percent (4 %) of the cost of the TPO improvements and has been calculated as specified in the TPO. CITY agrees to provide any supplemental funds necessary to ensure that construction of the MacArthur Project is complete no later than one year after occupancy of any development authorized by the Project Approvals. 5.4 Long Range Traffic Improvements. (a) Introduction. The EIR evaluated the "long term" impacts of the Project on major intersections in Newport Beach and Irvine (Long -range Analysis). The Long -range Analysis assumed construction of all entitlement and all circulation system improvements authorized in the Land Use and Circulation Elements of the Newport Beach General Plan (including the TPO Improvements). The Long -range Analysis also assumed the construction of entitlement and circulation system improvements contemplated for the year 2020 in the Land Use and Circulation Elements of the Irvine General Plan. The Long- range Analysis concluded that the Project would, depending on the construction of the J5 Ramp, have significant long -range adverse traffic impacts on four (4) or five (5) major intersections. The potential cost of mitigating the long - range impacts of the Project on intersections in the airport area could be significant. For example, mitigation of the impact of Project trips on service levels may require the construction of a grade separation and access ramps at the MacArthur /Jamboree intersection. The CITY has prepared conceptual plans for a grade separation at the Jamboree /MacArthur intersection and very preliminary cost estimates indicate that improvement costs, exclusive of right -of -way could be in the range of fifteen million dollars ($15,000,000) to twenty million dollars ($20,000,000). Moreover, the approval of the Project will result in an increase in average daily trips in the vicinity of the Project that may require other property owners to make improvements pursuant to the TPO that would not be necessary but for the Project. (b) OWNER Commitments. OWNER agrees to do the following: (i) Pay the CITY, within sixty (60) days after the Effective Date, forty -five cents ($.45) per square foot of additional entitlement granted pursuant to the Project Approvals to be used by the CITY solely for the purpose of funding a Planning Study for the Airport Area. (ii) Pay the CITY the sum of eight dollars ($8.00) per square foot of additional entitlement authorized by the Project Approvals \ \MIS 1 \SYS\ USERS \PLN\ SHARED \1CITYCNL \2001 \0626 \da062601c1n.doc 0 0 (Mitigation Fee). In the event a building permit is not issued within twelve (12) months after the Effective Date, the amount of the Mitigation Fee shall be increased by fifty cents ($.50) every twelve months after the Effective Date. (c) Payment. OWNER shall pay the Mitigation Fee prior to the issuance of any building permit for the Project. (d) Compliance. OWNER's compliance with the provisions of this Section shall relieve OWNER of any obligation to participate in any circulation system funding program developed and implemented by the CITY including a specific area plan or major thoroughfare program for the airport area. OWNER's compliance with the provisions of this Article shall constitute full and complete satisfaction of any obligation to make or fund, in whole or in part, any CITY circulation system improvement as a condition to development of the Project. 5.5 Fire Station Fee. The EIR concludes that fire suppression service to the Project will not meet CITY response time standards in the event of the closure of OCFA Station 27. CITY has conducted studies of fire service needs in the airport area and options for providing fire suppression and paramedic services consistent with CITY standards. The options for providing fire suppression and paramedic services include the construction, equipping and staffing a new fire station in the airport area or immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current estimated cost of constructing and equipping a New Fire Station is two million dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site, the construction of the New Fire Station, and /or the equipping /staffing of the station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading or construction on the Property pursuant to this Agreement. Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire suppression facility impact fee program (Program) for area served by the New Fire Station. 5.6 Circulation Study. Prior to the issuance of a building permit, OWNER shall prepare a study to evaluate the adequacy of on -site circulation and the impact of that circulation and vehicle ingress and egress on traffic flow on or through adjacent roadways and intersections. The study shall be conducted under the direction, and to the satisfaction, of the Transportation and Development Services Manager. OWNER shall, at OWNER's sole cost and prior to occupancy, incorporate all feasible study recommendations relative to ensuring adequate on -site circulation. OWNER shall also, at OWNER's sole cost and prior to occupancy, make all feasible improvements to mitigate any significant impact of vehicle stacking on traffic flow on or through adjacent roadways or intersections. WI S-1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 dn.doc Jq 0 0 6. SPECIAL PROVISIONS 0 6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley Burns Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales (Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER directly pays the Tax on all Eligible Transactions. 6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and' Use Tax Program (Program) that, at a minimum, has the following components: (a) OWNER's commitment to, during the term of this Agreement, maintain a direct pay permit or similar authorization to directly pay Tax on all Eligible Transactions; (b) procedures that Owner will implement to maximize the amount of Tax paid to the City with respect to construction of the Project. (c) procedures pursuant to which OWNER will provide City with information identifying all buyers and sellers with whom OWNER and /or OWNER's contractors do business. The Program shall also contain other information relevant to OWNER's compliance with the terms and conditions of this Agreement pertaining to the direct payment of Tax. OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the Revenue Manager of CITY for approval. OWNER shall modify the Program in accordance with any and all reasonable recommendations of the Revenue Manager that are consistent with the intent of this Section. OWNER shall, during the term of this Agreement, fully implement the Program approved by the Revenue Manager. 7. ANNUAL REVIEW. 7.1 CITY and OWNER Responsibilities. Each Party shall review the other Party's good faith substantial compliance with this Agreement once each year (the "Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an annual review statement describing its actions in compliance with this Agreement and the Development Plan. 7.2 Procedure. In connection with the Annual Review, each Party shall have a reasonable opportunity to advise the other of alleged or potential breaches of this Agreement or the Development Plan, to explain the basis for that Party's position, and to receive from the other Party a statement of its position. A Party may issue a written "Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of the Annual Review, that Party concludes that the other Party has not complied in good faith with the terms of this Agreement or the Development Plan. The Party receiving a \ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYC N L\2001 \0626 \da062601 cln.doc 2(� . Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the sixty (60) day period, the Party alleging the non - compliance may pursue the remedies provided in this Agreement. 7.3 Mitigation Monitoring, The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures related to the Project. 7.4 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature of the Default. • A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign an Estoppel Certificate on behalf of the CITY. 7.5 Failure to Conduct Annual Review. The failure to conduct an Annual Review shall not constitute a Default of either Party or be asserted as a Default by either Party. 8. GENERAL PROVISIONS 8.1 Effective Date. This Agreement shall bind the Parties as of the Approval Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge and agree that none of the Project Approvals becomes effective unless the voters approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to the City Council the results of any election conducted pursuant to Section 423 of the City Charter. 8.2 Term of Agreement. The term of this Agreement (the "Term ") shall begin on the Effective Date and continue for a term of twenty -five (25) years unless otherwise terminated or modified pursuant to this Agreement, or extended pursuant to the provisions and conditions of Section 11. \ \MIS_t \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 11 • • 8.3 Assignment. OWNER has the absolute right to assign its rights and /or • delegate its obligations under this Agreement and the Development Plan as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as OWNER owns /leases any part of the Property, OWNER may (at its election) assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by OWNER of the corresponding obligations. Upon any assignment of all or a portion of the Property, OWNER shall be released from all obligations under this Agreement that relate to the portion of the Property being transferred as of the date the assignment is effective: Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the Assignee. If an Assignee is in Default, then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii) be a basis for an enforcement action against them. 8.4 Amendment of Agreement. (a) Consent. Subject to the provisions of Subsection 8.4(b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code, the Newport Beach Municipal Code and this Agreement. After any amendment, the term "Agreement' shall refer to the • amended Agreement. (b) Amendments. The Parties acknowledge that OWNER may determine that amendments to the Development Plan and /or Project Approvals are appropriate and desirable. In such event, OWNER may apply in writing for an amendment to prior Project Approvals or the Development Plan. CITY shall process and act on the application. CITY shall have no obligation to grant any application that amends the permitted land uses, the overall intensity or density of the Project, or otherwise is an amendment of the Development Plan that could have one or more significant adverse environmental impacts. Any approved amendment shall be incorporated into this Agreement by reference and may be further amended from time to time as provided in this Section. 8.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns, provided, however, in the event of a Default the remedies shall be limited to those specified in Section 10.7. 8.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the term in accordance with Section 8.2; 0 \WIIS_1 \SYS \USERS \PLN \SHARED \1 CITYC N L\2001 \0626 \da062601 cln.doc 22 • 0 (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the CITY to set aside, withdraw, or abrogate the CITY's approval of this Agreement or any material part of the Project or Project Approvals; or (c) The effective date of a Party's election to terminate the Agreement as provided in Section 10.3 of this Agreement. 8.7 Right to Terminate Upon Specified Events. Notwithstanding any other provision of this Agreement, OWNER retains the right to terminate this Agreement upon thirty (30) days written notice to CITY in the event that OWNER reasonably determines that continued development of the Project consistent with the Development Plan has become economically infeasible due to changed market conditions, increased development costs, burdens imposed by the CITY or other governmental entity as conditions to future discretionary approvals of the Project consistent with this Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by OWNER to be inconsistent with the Development Plan, or similar factors. CONFLICTS OF LAW. 9.1 Conflict with State and Federal Laws and Regulations. Where State . or federal law or regulation prevents compliance with one or more provisions of this Agreement, those provisions shall be modified to the minimum extent necessary to comply with the State or federal laws or regulations, and the modified Agreement shall remain in effect, subject to the following: (a) The CITY shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding, based on substantial evidence in the record of a public hearing where OWNER has notice and an opportunity to present evidence, that the modification is required (as opposed to permitted) by State and federal law or regulation; (b) The modifications must be limited to those required (as opposed to permitted) by the State or federal law or regulation; (c) The modified Agreement must be consistent with the State or federal law or regulation requiring the modification; (d) The intended material benefits of this Agreement must still be received by each of the Parties after modification; and (e) The modification and any applicable local, State, or federal law or regulation does not render the modified Agreement impractical to enforce; MIS-1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc ALM • • 9.2 Controlling Law. This Agreement shall be governed by the laws of the State of California. 10. DEFAULT, REMEDIES AND TERMINATION. 10.1 . General Provisions. In the event of a Default the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period then a Default shall be deemed not to exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question is not susceptible of cure within the applicable Cure Period, and the Defaulting Party commences its cure within the Cure Period and diligently pursues the cure to completion. 10.2 Option to Institute Legal Proceedings or to Terminate. The noticing Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the noticing Party intends to terminate the Agreement and the alleged Default is not cured within the Cure Period. The City Council shall, no later than forty -five (45) days after a Notice of intent is served on either Party, hold a public hearing in the manner specified in the Government Code and /or the Municipal Code to consider and review the alleged • Default. 10.3 Notice of Termination. After the public hearing described in Section 10.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party. The Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council at the public hearing establishes the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 12.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 10.5 Default by OWNER. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have no obligation to perform any of CITY's obligations under this Agreement (as opposed to the CITY's obligations under the Development Plan and the General Regulations), \ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 24 0 unless otherwise ordered by a court of competent jurisdiction. The CITY's election not to perform as permitted by this provision shall not constitute a Default. 10.6 Default by the CITY. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have no obligation to perform any of OWNER's obligations under this Agreement, unless otherwise ordered by a court of law. However, OWNER shall not be entitled to receive Project Approvals or take any other action inconsistent with provisions of the Development Plan, the Newport Beach General Plan, or relevant zoning ordinances unless otherwise permitted by law. OWNER's election not to perform as permitted by this provision shall not constitute a Default. 10.7 Specific Performance. (a) The Parties agree that, except as provided in Subsection 9.7.b., the loss by either of them of their respective rights under this Agreement would not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and/or injunctive relief. (b) Notwithstanding the foregoing, in the event any development fees or taxes are imposed on development of the Property other than those authorized pursuant to this Agreement or the Development Plan, OWNER shall be entitled to recover from CITY restitution of all improperly assessed fees or taxes, together with interest thereon at the maximum allowable non - usurious rate from the date such sums were paid to CITY to the date of restitution. 10.8 Effect of Termination. The termination of this Agreement shall not affect the rights, duties and obligations, if any, of any successor to OWNER to comply with the Project Approvals. 11. ENCUMBRANCES AND RELEASES ON PROPERTY. 11.1 Discretion to Encumber. This Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvements. 11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon written request to CITY, be entitled to receive from CITY written notification of any default by Owner of the performance of OWNER's obligations under this Agreement which has not been cured within thirty (30) days following the date of the Notice of such 0 default \ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 16 • 0 (a) Notwithstanding OWNER's default, this Agreement shall not be . terminated by CITY as to any Mortgagee to whom Notice is to be given and to which either of the following is true: (i) The Mortgagee cures any default by OWNER involving the payment of money within sixty (60) days after the Notice of default; provided, however, that if any such default cannot, with diligence, be cured within the sixty (60) day period, then the Mortgagee shall have additional time as may be reasonably necessary to cure the default if the Mortgagee commences the cure within the sixty (60) day period and diligently pursues the cure to completion. (ii) As to defaults requiring title or possession of all or a portion of the Property to cure: (i) the Mortgagee agrees in writing, within sixty (60) days after receipt from CITY of the written Notice of default, to perform the proportionate share of OWNER's obligations under this Agreement allocable to that part of Property in which the Mortgagee has an interest conditioned upon the Mortgagee's acquisition of the required portion of the Property by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the Mortgagee commences foreclosure proceedings to reacquire title to the Property or applicable portion thereof within the sixty (30) days and thereafter diligently pursues foreclosure to completion; and (iii) the Mortgagee promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event any Mortgagee records a Notice of default as to its mortgage or deed of trust, CITY shall consent to the assignment of all of OWNER's rights and obligations under this Agreement to the Mortgagee or to any purchaser of OWNER's interest at a foreclosure or trustee sale and OWNER shall remain liable for such obligations unless released by CITY or unless the applicable portion of OWNER's Property is transferred. (b) Notwithstanding Subsection 11.2.a. of this Agreement, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving OWNER, the times specified in Subsection 11.2.a of this Agreement for commencing or prosecuting foreclosure or other proceedings shall be tolled during the period of the prohibition. (c) OWNER's execution or breach of this Agreement shall not defeat, render invalid, diminish or impair the lien of any existing or future mortgage or deed of trust on OWNER's Property made in good faith and for value. 0 \ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYCN L\2001 \0626 \da062601 cln.dx 2� 11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no Mortgagee shall have an obligation or duty under this Agreement to perform the obligations of OWNER or other affirmative covenants of OWNER or to guarantee such performance. No Mortgagee shall be liable for any Default or monetary obligations of OWNER arising prior to acquisition of title to the Property by the Mortgagee or their respective successors or assigns. However, to the extent any covenant to be performed by OWNER is a condition to the performance of a covenant by CITY, the performance shall continue to be a condition precedent to CITY's performance. In the event a Mortgagee elects to develop the Property in accordance with the Development Plan, the Mortgagee shall be required to assume and perform the obligations or other affirmative covenants of OWNER under this Agreement. 12. MISCELLANEOUS PROVISIONS. 12.1 Notices. All Notices shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; and, (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt. Notices shall be addressed as follows: To the CITY: City Manager - City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Manager To OWNER: Koll Center Newport Number A 4343 Von Karman Ave. Newport Beach, CA 92660 Attn: Don Koll CC: Starpointe Ventures Either party may give the other a "Notice of a New Address" to modify this Subsection. 12.2 Enforcement Delay; Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non - performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities other than CITY, suspension of rights in accordance with the 0 existence of unforeseen circumstances, governmental moratorium other than a WIS_1 \SYS \USERS \PLN \SHARED \1 CITYC N L\2001 \0626 \da062601 dn.doc N 0 A moratorium enacted by CITY, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon, but in no case shall the extension of time for performance exceed six (6) months. 12.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the prior intent of the Parties and the Party substantially benefited by the material provision does not waive its rights under the unenforceable provisions, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 5 are deemed "material ". 12.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter. This Agreement supersedes all negotiations and previous offers and understandings between the Parties regarding the subject matter. 12.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything that has the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to obtain any permits from other public agencies that may be required for development of the Project. OWNER may challenge any ordinance, measure, moratorium, or other limitation in a court of law if litigation is necessary to protect the development rights vested in the Property pursuant to this Agreement. 12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably be relying on CITY's performance of its covenants in this Agreement when OWNER invests money and effort in construction of the Project. 12.10 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute documents, with acknowledgment or affidavit if reasonably required, and take any other action reasonably necessary to implement the terms and conditions of this Agreement or permit development of the Project in accordance with the Development Plan. \ \MIS_t \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln.doc 0 • 0 12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and assigns of the Parties. 12.12 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the Sections and Subsections are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement does not, and is not intended to, impermissibly contract away the police power, legislative authority or governmental functions of the CITY in general or with respect to the Property. 12.13 Authority to Execute. The person executing this Agreement on behalf of OWNER warrants and represents that he /she has the authority to do so and the authority to bind OWNER to the performance of OWNER's obligations under this Agreement. 12.14 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not be unreasonably withheld. 12.15 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 12.16 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the CITY and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement 6 is a ministerial act and the failure of the CITY to record the Agreement as required by this Section and Government Code § 65868.5 does not make the Agreement void or ineffective. 12.17 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California. 12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 12.19 Relationship of the Parties. The contractual relationship between CITY and OWNER arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of 40 any legal action filed and prosecuted by any person or entity other than the Parties that \ \MIS_1 \SYS \USERS \PLN \SHARED\1 CITYCNL\2001 \0626 \da062601 dn.doc 29 challenges the validity or manner of approval of this Agreement, the Project Approvals or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and hold harmless the CITY and its officers and employees with respect to any costs, expenses, judgment, damages or award, including an award of attorney fees and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER acknowledges and agrees that CITY has fully complied with all applicable statutes, ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and Existing General Regulations in the initiation, processing, evaluation and approval of all Project Approvals. OWNER's obligations pursuant to this Section shall commence as of the Approval Date and continue for the period specified in Section 8.2 or until this Agreement terminates, whichever occurs first. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of the CITY or its officers or employees that occurred on or before the Approval Date. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud, willful misconduct or violation of law by the CITY or its officers and employees that occurs after the Approval Date. 12.21 Payments. Any payment due pursuant to this Agreement shall bear interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date due until paid with interest compounded monthly. Dated: 2001 CITY OF NEWPORT BEACH 0 Mayor Dated: 2001 KOLL CENTER NEWPORT NUMBER A l-A WIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601 cln. doc I..,J JD • • 0i01— $7 ORDINANCE NO. 2001-11 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A DEVELOPMENT AGREEMENT FOR KOLL CENTER NEWPORT OFFICE SITE B [DEVELOPMENT AGREEMENT NO. 161 WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City") for a General Plan Amendment (GPA 97 -3(B)) and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, e GPA 97 -381 would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit "DA-l"; and WHEREAS, the Development Agreement provides for certain rights, obligations, and assurances on the parts of both the City and the Developer; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Development Agreement; and - WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Development Agreement, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. 0 0 THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the project addressed by the Development Agreement. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a Development Agreement for the proposed project. The Development Agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items. Although this discretionary action was not identified in the project description contained in the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those ad 4 dressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the Development Agreement. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: DEVELOPMENT AGREEMENT. a. The Development Agreement is, assuming voter approval of GPA 97 -3(13), consistent with the objectives, policies, general land uses, and programs of the General Plan of the City_ s., ♦1,..t :t sl ..,.,.t,. and : ..1,,..., a. s the p eet .,...7 its ,. :,.t,.,7 C�0 1 DI rr- ffifid a J3rG*idA a ===f= . . . . . .. . . . . 0 0 b. The City Council hereby approves and adopts the Development Agreement, attached hereto as Exhibit "DA -1 ". The Mayor is hereby authorized to execute the Agreement. wand, assumine voter approval of GPA 97 -3B1. the City Clerk shall cause a copy thereof to be recorded with the Orange County Recorder. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall not become effective until the City Clerk certifies to the Citv Council that the GPA 97 -3B1 has been approved by the electorate pursuant to Section 423 of the City Charter. ' . This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on July 10, fte -?Fr, -2001 and adopted on July 249, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS IUV%VYIR� ATTEST: CITY CLERK 0 ORDINANCE NO. 2001-12 0 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A ZONING AMENDMENT INCREASING THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [ZONING AMENDMENT 9051 WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City") for a General Plan Amendment (GPA 97 -3(B)) and a Zoning Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B to a total of 1,2b1,349 net square feet while eliminating restaurant and retail- service uses; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Zoning Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Zoning Amendment, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested Parties a notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After reviewing the EIR, all comments received during the public review process, and all responses to 0 i those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning Amendment 905: 1. The amendment is consistent with the General Plan assuming that GPA 97 -3(B) is approved by the electorate pursuant Section 423 of the City Charter in that it provides for an increase in square footage commensurate with that allowed by GPA 97 -3(B). 2. The internal consistency of the Planned Community text will be retained in that all development square footages and open space acreages have been adjusted to retain appropriate development and open space percentages. , SECTION 3: ZONING AMENDMENT. 1. The City Council hereby adopts, by reference, the CEQA - required "Statement of Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations ", attached as Exhibit "EIR -2" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby finds that the benefits override the identified adverse environmental impacts. 2 0 0 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution certifying the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MM". 4. In light of the preceding findings and actions, the City Council hereby approves Zoning Amendment 905, consisting of the amendments to the Koll Center Newport Planned Community Development Standards specified in Exhibit "ZA -1 ", attached hereto, subject to the mitigation measures identified in the Environmental Impact Report and listed in Exhibit "EIR -5" —as conditions of approval of the Zoning Amendment, as stipulated in Exhibit "ZA -1 ". SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the Ordinance shall become effective upon certification by the City Clerk to the City Council that dPA 97 -3B1 has been approved by the electorate pursuant to Section 423 of the City_ Charter. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on July 0He -24, 2001 and adopted on July L444,2001 by the following vote, to wit: FAIW& to AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS la\* $z1016111z[N1QS10S1:30*1 3 MAYOR C= CLLR c • 0 4 -i :710/ n • ORDINANCE NO. 2001-12 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A ZONING AMENDMENT INCREASING THE MA30MUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [ZONING AMENDMENT 9051 WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City") for a General Plan Amendment (GPA 97 -3(13)1 and a Zoning Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B to a total of 1,201,349 net square feet while eliminating restaurant and retail- service uses; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Zoning Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Zoning Amendment, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties a notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After reviewing the EM, all comments received during the public review process, and all responses to 0 6 those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning Amendment 905: 1. The amendment is consistent with the General Plan assuming that GPA 97 -3B1 is approved by the electorate pursuant Section 423 of the City Charter in that it provides for an increase in square footage commensurate with that allowed by GPA 97 -3B1. 2. The internal consistency of the Planned Community text will be retained in that all development square footages and open space acreages have been adjusted to retain appropriate development and open space percentages. I SECTION 3: ZONING AMENDMENT. 1. The City Council hereby adopts, by reference, the CEQA - required "Statement of Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations"; attached as Exhibit "EIR -2" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby fords that the benefits override the identified adverse environmental impacts. 2 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution certifying the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MMRP. 4. In light of the preceding findings and actions, the City Council hereby approves Zoning Amendment 905, consisting of the amendments to the Koll Center Newport Planned Community Development Standards specified in Exhibit "ZA -1 ", attached hereto, subject to the mitigation measures identified in the Environmental Impact Report and listed in Exhibit "EIR -5" ,as conditions of approval of the Zoning Amendment, as stipulated in Exhibit "ZA -1 ". SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the Ordinance saffxie -shall become effective upon certification by the City Clerk to the City Council that UPA 97 -3B1 has been approved by the electorate pursuant to Section 423 of the City Charter. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on Jul, y l One -2 i, 2001 and adopted on July L444,2001 by the following vote, to wit: ATTEST: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS 3 MAYOR CITY CLERK 0 0 -40/01 -J., Testimony on the proposed General Plan amendment for the Koll Center Greenlight Philip L. Arst Spokesperson July 10, 2001 The Koll proposal to increase its building entitlements by 15X should be rejected • Adds 1700 auto trips a day contributing to unsatisfactory and admittedly unmitigatabie traffic congestion, pollution • Creates more demand for airport usage /expansion • Provides no real economic benefits — and exposes the city to huge potential economic liabilities The City Council should not sell off resident's quality of life for $30 per resident and a sweetheart deal for the developer!! 2 E Why? 0 • grant developer a 15X entitlement increase so it can increase traffic congestion? • grant developer an up to $15M windfall? • create one of the highest density building sites in the City? • rely upon the developers traffic analysis that is outmoded by the City's own proposal to increase the allowable passenger cap at John Wayne Airport? • when the city is spending $1M for a General Plan Update, permit the developer to gain a major entitlement that may not be granted in the pending General Plan Update when completed? The City's fiscal analysis of developer's project is badly skewed Claimed $50,000 per year city net revenues at best $10,000 per year and more realistically a net loss of $10,000 per year There is really no measurable financial benefit to the city! Project analysis done in constant Year 2000 dollars • Annual net revenues to city projected by Staff as $51,878 Correct methodoloev is in adjusted inflated dollars (Per NB standard re A. KIM • Property Tax collections increase at average of I.9 0/a/year • Cost of city services increases at CPI of 5% • Cumulative 30 year* net revenues to city = $296,500 • Average annual net revenues to city = $9,900 It is unrealistic to not expect needs for expanded Government services, and/or requirements in the future — Add an industry standard 10% contingency • Average annual net revenues to city with industry standard 10% industry contingency fee = <$9,500 •30 year analysis period based upon anecdotal evidence reflects fact that turnovers of office buildings are very much longer than residential property turnovers. 0 0 Why is Newport Beach charging Koll so much less than the City of Irvine would? * $2.45M contribution is still 17% less than charged by Irvine * The city is giving Koll a development entitlement windfall that could cost it up to $15M if it was building in the City of Irvine! Charges (sq. ft.) Newport Irvine IBC Development Fee $8.00 $10.70 System Dev. (Planning) $ 0.45 $0.96 TPO, Fair Share Fees $1.46 0 Transfer Devel. Rights Fee 0 $0.23 Transfer Right Purchase (SM)* 0 so - $ISM ** TOTAL / sq. ft 59.91 $11.89 + SMISM TOTAL S2.45M S2.97M +40 -SISM *Transfer Development Rights in Irvine Business Complex (IBC) must be purchased from current proucrty owners in IBC. This is equivalent to During their property entitlements. Three purchases, while private, are analogous to outright purchase of sufficiently entitled land. **The purchase price ofcommercial land will vary with market conditions. An estimate of comparable land purchases prices it apps S3011gR times 1 IS acres I@ FAR 051 equivalent land needed. Regional Transportation charges are deemed equal for both sides. 5 The Koll Project represents a potential loss and future multi - million dollar liability to to the City! City ($30 per resident) Annual income ( + / -) $10,000 per year Costs 41.7M city expenditure on McArthur /Jamboree that (-) $1.7M ( +) Costs of provision of storm drain hookups (DA 4.4) Undefined City coat Assumption by City ofState /Federal Law 0 to "Multi - Millions" change risks of Project (DA 9.1x12.3) Liability Exempts future traffic fees/assessments for traffic "z "% of $15 -20M for mitigation caused by Project -(DA 43) (Contributes to McArthur/Jamboree plus requirement for grade separation at Jamboree! costa for mitigation of 3-4 McArthur and 3-4 other uasat Intersections) other intersections City assumption of risks of conformance to DA if Potential future liability benefits/obligations assigned to 3rd parties (DA 4.11) unknown Koll is exempt from future impact fees that may be Some exclusions but levied by the city on all property owners (DA 4.6) unknown revenue loss �_� 6 Income ( +) $2.45 M Project Payments to City ($30 per resident) Annual income ( + / -) $10,000 per year Costs 41.7M city expenditure on McArthur /Jamboree that (-) $1.7M may be scrapped by future mitigation project (5.4a) Costs of provision of storm drain hookups (DA 4.4) Undefined City coat Assumption by City ofState /Federal Law 0 to "Multi - Millions" change risks of Project (DA 9.1x12.3) Liability Exempts future traffic fees/assessments for traffic "z "% of $15 -20M for mitigation caused by Project -(DA 43) (Contributes to McArthur/Jamboree plus requirement for grade separation at Jamboree! costa for mitigation of 3-4 McArthur and 3-4 other uasat Intersections) other intersections City assumption of risks of conformance to DA if Potential future liability benefits/obligations assigned to 3rd parties (DA 4.11) unknown Koll is exempt from future impact fees that may be Some exclusions but levied by the city on all property owners (DA 4.6) unknown revenue loss 3 0 0 The Koll Project receives preferential treatment at taxpayer expense Requires expeditious approval of Unfair to homeowners/ small businesses KoIPs permit processing, (4.10(a,b)) waiting for their permits to be processed Required compliance with city laws, Preferential treatment as all other regulations, ordinances and taxpayers have to conform beyond resolutions is frozen at signing (1.7 c) signing date Exempts Koll from responsibility if Koll can sell the project and is released Koll assigns (sells) the project (83) from certain liabilities under the DA Exempts Kill from normal city Over -rides existing laws (TPO) and is commencement & completion time unfair to those who have to conform to limitations (4.7) construction time limits (15.45.030) Koll has no duty to build in a timely Municipal Code (15.45.060) contem- manner. Their cost of $2.45M in year plates time limits in DA's so that 2000 dollars binds city Councils and future City Councils are not bound and City operations for 25 years (8.2) can react to changed conditions Exempts from DA any future sub- Actions that are not consistent with the divisions, resubdivisions, lot line DA are exempted unduly benefiting Koll adjustments, vacations, etc. (4.11) Project contributes to significant long -range i.e. year 2020 impacts at five main intersections and adds 1% or more traffic to five others MacArthur blvd /Jamboree Road (pm peak hour) Irvine Ave/Mesa Drive (pm peak hour) Jamboree Read/Bristol St. am & pm peak hours) Jamboree Road/Campus Drive (pm peak hour0 - Jamboree road/1405 NB ramps (am peak hour) Regarding: MacArthur Blvd. /Jamboree Road and Jamboree Road /Campus Drive "It is staffs opinion that these intersection impacts are significant and unavoidable." City naff eport Long Range Traffic Analysis a 4 0 0 The Koll Proposal to expand its entitlement by 15 times should be rejected EIR/Traffic findings are that the Project contributes to significant irrepar- able traffic and pollution and under State Law would ordinarily be denied. The City is relying on a claim of "overriding considerations" to pass the project. The only basis for this is money (s30 /resident) paid by developer: However the project is detrimental to: Public Health: * Creates unmitigatatable traffic congestion, pollution Public Safety: * Slows response times of emergency vehicles and hospital access Public Welfare: * Encourages expansion of JWA Airport * Provides little, If any, annual net revenues and exposes city taxpayers to potential multi - million dollar liabilities - Federal/State Law changes . City Law changes - Fully mitigating traffic congestion The Koll GPA Proposal should be rejected (2) Detriments to Public Welfare (cont'd) • Piecemeal planning will lower resident's Quality of Life • Initial economic benefits offset by costs of scrapping initial short term improvements to McArthur /Jamboree intersection * Charges developer 17% less than a similar project In the Irvine Business Complex and grants them an equivalent of up to a $15M property enhancement entitlement * The City gives Koll Center unfair preferential treatment at the expense of taxpayers and other business owners No benefits to residents, only detriments! The sum of all of these problems is that the project proposal cannot be patched to be acceptable 10 0 The Koll proposal to increase its building entitlements by 15X should be rejected • Adds 1700 auto trips a day contributing to unsatisfactory and admittedly unmitigatable traffic congestion, pollution • Creates more demand for airport usage /expansion • Provides no real economic benefits — and exposes the city to huge potential economic liabilities The City Council should not sell off resident's quality of life for $30 per resident and a sweetheart deal for the developer!! A possible alternative to project rejection • Mindful of the $ I M General Plan Update effort that is currently underway that: - may include or exclude project - will do a comprehensive analysis of the entire city - will be subject to voter approval if found to meet voter messages regarding traffic and retaining the environmental and residential character of Newport Beach Greenlight suggests a moratorium on all "For profit commercial projects" requiring GPA's until the General Plan update is approved. IF iz C I. 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PRO rA 0 Poo rA v O H V G� O a� u opal O PC ,Poo � o W4 .r, cp ow O O 'C O Ora � PC F *No u a� • OOro O O � O O u u � o ;p" a� o � a Mq C` ti w O L V O � 4t � w R • N. O � • ~ cis m cd V rA co (D C13 0 � ' f . V1 W o C4 cd 4 4 , 40 "" N Am) cis cl *C4 cd O O U ' `d V $* O � Q � �p 5�-" b9 p U C;3 N � N 5 N� o � ~ cd b O .F Cd z' C N ?, b U U �" ~ N _^ Sr.•,va s rata Ser, :ce a 9-19-6- 5-5 2C8 o; '.0: KG' S: 9 C i1 "RECEIVED AFTER AGENDA PRINTED:" -k1 John S. and Mona L. Swain 308 Apolena Avenue Balboa Island, CA 92662 (949)675 -5206 monaswain @aol.com July 10, 2001 Dear Honorable Garold Adams and Members of the Newport Beach City Council: We believe you should re -think any vote in favor of the Koll project. If you are against expansion of the Orange County Airport, yet vote to allow large development in this area, this will only encourage more flights and thus necessitate expansion of the airport. Can you explain this contradiction of how you vote and your stance on the airport? Sincerely, �o John and -Ilona Swain n =� rn m VM O C� Co Z -� m rrnn W �r f�rn A S� RESOLUTION NO. 2001-54 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CERTIFYING ENVIRONMENTAL IMPACT REPORT NO. 158 REGARDING THE EXPANSION OF OFFICE SITE B IN KOLL CENTER NEWPORT (STATE CLEARINGHOUSE NO. 99091120). WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22- 24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, a Development Agreement was prepared to provide enhanced public benefits and the payment of special mitigation fees not required of other projects in order to offset the impacts of the project, in return for the permitted higher level of entitlement; and WHEREAS, in accordance with CEQA requirements, a Notice of Preparation (NOP) of a Draft Environmental Impact Report (DEIR) was filed with the State Clearinghouse, which assigned State Clearinghouse Number 99091120; and WHEREAS, the NOP and an Initial Study were distributed to all responsible and trustee agencies and other interested parties for a 30 -day public review period commencing on September 20, 1999 and ending on October 22, 1999; and WHEREAS, a Draft EIR was prepared for the project, hereby incorporated by reference to this Resolution, which identifies potential significant impacts to the environment and certain mitigation measures designed to reduce or avoid these impacts; and 0 Ll WHEREAS, in accordance with CEQA requirements, a Notice of Completion (NOC) of the Draft EIR was filed with the State Clearinghouse; and WHEREAS, the Draft EIR was distributed to agencies, interested organizations, and individuals by the City. The distribution list is available at the City of Newport Beach Planning Department; and WHEREAS, a 45 -day public review period for the Draft EIR was established pursuant to State law, which commenced on May 23, 2000 and ended on July 10, 2000; and WHEREAS, all comments received during the public review period for the Draft EIR were responded to in the "Response to Comments" document dated August 2000, hereby incorporated by reference to this Resolution. All comments and responses were considered by the City Council during its review of the project and the Environmental Impact Report; and WHEREAS, pursuant to Section 15091 of the State CEQA Guidelines, a "Statement of Findings" has been prepared, summarizing the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened; and WHEREAS, because the EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened, a "Statement of Overriding Considerations" has been prepared, which balances these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project; and WHEREAS, a "Mitigation Monitoring and Reporting Program" (MMRP), has been prepared to ensure implementation of all mitigation measures identified in the Final EIR, including a listing of all identified mitigation measures, the timing of implementation of each mitigation measure, the method of verification of implementation, and the individual responsible for monitoring compliance; and E 0 WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, at which time the proposed amendments, Development Agreement, and EIR were considered. The Planning Commission then forwarded a recommendation that the EIR be certified as complete; and WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the proposed amendments, Development Agreement, and EIR were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. NOW THEREFORE BE IT RESOLVED, that 1. The City Council hereby finds that Environmental Impact Report No. 158 for the expansion of Office Site B In Koll Center Newport (State Clearinghouse No. 99091120) has been prepared in compliance with the California Environmental Quality Act and the CEQA Guidelines. In addition, the City Council finds that the EIR adequately analyzes project - related impacts, identifies feasible mitigation measures, and discusses project alternatives, and that the EIR reflects the City's independent judgment and analysis. Accordingly, the City Council hereby certifies Final Environmental Impact Report No. 158, consisting of the Draft Environmental Impact Report and the EIR Responses to Comments hereby incorporated by reference to this Resolution. 2. The City Council hereby adopts the "Statement of Findings ", attached hereto as Exhibit "EIR -1 ", the Statement of Overriding Considerations ", attached hereto as Exhibit "EIR -2 ", the Mitigation Monitoring Program, attached hereto as Exhibit "EIR -3", and the "Errata Corrections" to the Draft EIR, attached hereto as Exhibit "EIR -4 ". ADOPTED this 26`h day of June, 2001, by the following vote, to wit: ATTEST: CITY CLERK 0 0 AYES, COUNCIL MEMBERS O'Neil, Ridgeway, Glover, Bromberg, Mayor Adams NOES, COUNCIL MEMBERS Heffernan ABSENT COUNCIL MEMBERS Proctor ���.L�h jr - ■�i` MAYOR 9 01 EXHIBIT EIR -1 0 STATEMENT OF FINDINGS IN SUPPORT OF THE GENERAL PLAN AMENDMENT AND PLANNED COMMUNITY AMENDMENT KOLL CENTER NEWPORT - OFFICE SITE B AND RELATED ACTIONS SIGNIFICANT ENVIRONMENTAL EFFECTS OF THE PROPOSED PROJECT, FINDINGS WITH RESPECT TO SAID EFFECTS, AND STATEMENT OF FACTS IN SUPPORT THEREOF, ALL WITH RESPECT TO THE PROPOSED GENERAL PLAN AMENDMENT AND THE KOLL CENTER NEWPORT PLANNED COMMUNITY AMENDMENT (OFFICE SITE B) IN THE CITY OF NEWPORT BEACH, CA INTRODUCTION The California Environmental Quality Act ( "CEQA "), Public Resources Code Section 21081 and CEQA Guidelines Section 15091 provide that: (a) No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are: (1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final EIR. (2) Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency. (3) Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR. (b) The findings required by subsection (a) shall be supported by substantial evidence in the record. Section 15092 of the State CEQA Guidelines further stipulates that: (b) A public agency shall not decide to approve or carry out a project for which an EIR was prepared unless either: (1) The project as approved will not have a significant effect on the environment, or (2) The agency has: (A) Eliminated or substantially lessened all significant effects on the environment where feasible as shown in findings under Section 15091, and (B) Determined that any remaining significant effects on the environment found to be unavoidable under Section 15091 are acceptable due to overriding concerns as described in Section 15093. In making the findings required by Section 21081, the public agency must base its findings on substantial evidence in the record. 0 0 An Environmental Impact Report (EIR) for the project has been prepared and certified as complete by the City of Newport Beach. The EIR identifies certain significant effects which may occur as a result of the Koll Center Newport project alone or on a cumulative basis in conjunction with other past, present, and reasonably foreseeable future projects. The environmental review process for the Koll Center Newport project is summarized below. 1. In accordance with CEQA requirements, a Notice of Preparation (NOP) of a Draft EIR was filed with the State Clearinghouse on September 24, 1999. The State Clearinghouse assigned State Clearinghouse Number 99091120. 2. The NOP and an Initial Study were distributed to all responsible and trustee agencies and other interested parties on September 20, 1999 for a 30 -day public review. The review period ended on October 22, 1999. The Subcommittee of the Environmental Quality Affairs Citizens Advisory Committee (EQAC) for the Koll Center Newport project submitted comments dated October 20, 1999 on the NOP and Initial Study. 3. In accordance with CEQA requirements, a Notice of Completion (NOC) of the Draft EIR was filed with the State Clearinghouse on May 24, 2000. 4. The Draft EIR was distributed to agencies, interested organizations, and individuals by the City. The distribution list is available at the City of Newport Beach, Planning Department. 5. A forty -five (45) day public review period for the Draft EIR was established pursuant to State law, which commenced on May 24, 2000 and ended on July 10, 2000. 6. Comments received during the public review period for the Draft EIR were responded to in a Response to Comments document dated August, 2000. 7. A Final EIR has been prepared for the Koll Center Newport Project. The following components comprise the Final EIR: a. Draft EIR, May 2000; b. Comments received on the Draft EIR and responses to those comments, August 2000; and C. All attachments, incorporations, and references to the documents delineated in items a and b above. The City is the Lead Agency with respect to the project pursuant to State CEQA Guidelines Section 15367. As a Lead Agency, the City is required by CEQA to make findings with respect to each significant effect of the Project. The City has reviewed the EIR. The following sections make detailed findings with respect to the potential effects of the Koll Center Newport project and refer, where appropriate, to the mitigation measures set forth in the Final EIR. The Final EIR and the administrative record concerning the Koll Center Newport project provide additional facts in support of the findings herein. The Final EIR (which includes, among other components, the Draft EIR, and the Response to Comments on the Draft EIR) is hereby incorporated into these Findings in its entirety. Furthermore, the mitigation measures set forth in the Mitigation Monitoring Program are incorporated by reference in these Findings. The Mitigation Monitoring and Reporting Program was developed in compliance with Public Resources Code Section 21081.6 and is contained in a separate document. Without limitation, these incorporation are intended to elaborate on the scope and nature of mitigation measures, the basis for determining the significance of impacts, the comparative analysis of alternatives, and the reasons for approving the Koll Center Newport project in spite of associated significant unavoidable adverse impacts. 2 0 0 Final EIR SCH No. 99091120 for General Plan Amendment and Amendment to the Koll Center Planned Community and related discretionary actions, identified significant environmental impacts prior to mitigation that may occur as a result of implementing the project. Thus, in accordance with the provisions of CEQA, the Newport Beach City Council hereby adopts these findings as part of its action to certify Final EIR SCH No. 99091120 and approve the General Plan Amendment and Amendment to the Koll Center Planned Community District Regulations. Findings regarding significant adverse environmental impacts are included below and addressed in more detail in the Statement of Overriding Considerations. DESCRIPTION OF THE PROJECT PROPOSED FOR APPROVAL Consistent with the intent of CEQA, the State CEQA Guidelines, and relevant judicial interpretations of CEQA, the "project" addressed in the Final EIR is defined to include the approval of a general plan amendment, amendment to the existing planned community district regulations, and a traffic phasing ordinance study that would allow the development of a 10 -story, 250,000 square feet professional office building; a 1,200 -car, 6 -level parking structure to replace an existing 2 -level parking structure; and a 500 - car, 2 -level parking structure to replace an existing surface parking area. The proposed project is intended to provide for additional professional office space within Office Site B of the Koll Center Newport Planned Community (PC), and to provide for an enhanced professional office campus environment and facilitate connectivity to the existing Conexant facilities to the north. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a development agreement for the proposed project. The development agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items in return for assurances to the developer that development will be able to proceed without future changes to development parameters or City- caused increases in development costs. Although this discretionary action was not identified in the project description contained in the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the development agreement. The project includes the following elements General Plan Amendment The General Plan Amendment is proposed to eliminate the restaurant and retail uses cOrrently designated for the subject property and increases in the allowable office use for Office Site B. Planned Community (PC) District Amendment (Zone Change) The amendment to the Koll Center Newport Planned Community District Regulations dated May 5, 1972 (Amended August 10, 1998) is proposed to increase the amount of office space within Office Site B by 250,000 (gross) square feet. Development Agreement The development agreement between the City and the developer provides for the payment of special impact fees related to traffic and public services not required of other projects in return for assurances that the project can proceed. In addition to providing the developer a vested right to develop the property under the provisions of the general plan and zoning 3 0 0 amendments approved by the City for a term of twenty -five years, several benefits will accrue to the City, including additional development fees intended to fund long -range traffic improvements, fees to fund a planning study for the airport area, and a fire suppression impact fee that will contribute to site acquisition, construction, and/or equipment and staffing of a new, permanent fire station to serve the area. Traffic Phasing Ordinance Under the City's Traffic Phasing Ordinance (TPO), the project's additional traffic contribution beyond that which is included as a "committed project" must be analyzed and the requirements of the TPO must be satisfied before City action. These activities are under the jurisdiction of the City of Newport Beach as the Lead Agency, including the approval of discretionary planning actions and issuance of permits (e.g., grading permit, building permit, etc.) necessary for project implementation. III. IMPACTS DETERMINED TO BE LESS THAN SIGNIFICANT The following describes impacts of the Koll Center Newport (Office Site B) project found to be less than significant in the preparation of the Initial Study and the Draft EIR. The Initial Study, provided in Appendix A of the Draft EIR, was used to focus the scope of the Draft EIR. INITIAL STUDY Land Use Planning Implementation of the proposed project would not affect agricultural resources or operations. 2. Implementation of the proposed project would not disrupt or divide the physical arrangement of the established community including the land uses and circulation patterns within and adjacent to the project site. Population and Housing Implementation of the proposed project would not displace existing housing, especially affordable housing. Geologic Issues 1. Implementation of the proposed project is not anticipated to expose people on structures to fault rupture during a seismic event. 2. Although implementation of the proposed project has the potential to result in the exposure of people and structures to ground shaking during a seismic event, this exposure is no greater than exposure present in other areas throughout the Southern California region. No significant impact would occur. 3. Implementation of the proposed project is not anticipated to expose people to structures to ground failure due to liquefaction during a seismic event. 4. Implementation of the proposed project would not expose people or structures to seiche, tsunami, or volcanic hazards. 5. The project site and vicinity are not identified as areas with the potential for landslides or mudflows. 4 9 0 6. Implementation of the proposed project would not require significant alteration of the existing topography on the project site. In the event that unstable soil conditions occur on the project site due to previous grading, excavation, or placement of fill materials, these conditions would be reduced by the City's required submittal of site - specific geotechnical evaluations to address specific design and construction measures for each building site prior to issuance of grading permits. No significant impact related to changes in topography or unstable soil conditions would occur. 7. The project site has not been identified as an area with the potential for subsidence. In addition, withdrawal of groundwater, oil, or other mineral resources would not occur as part of the proposed project. 8. Upon compliance with the City's grading and building permit requirements, no significant impact related to expansive soil conditions would be anticipated to occur. 9. Implementation of the proposed project would not disturb unique geologic or physical features. Water With implementation of the proposed project, the drainage patterns, absorption rates, and the rate and amount of surface runoff would not significantly change relative to the existing conditions. In addition, runoff from the project site would continue to be accommodated by the existing on -site and off -site drainage facilities. 2. Implementation of the proposed project would not increase the exposure of people or property to flood hazards. 3. Development of the additional building areas for the proposed project would not significantly alter the amount of impervious surfaces on the project site and the potential for erosion to result in changes to surface water quality would not significantly increase relative to the existing conditions. The proposed project would replace surface parking lots with buildings and parking structures resulting in a reduction in the amount of exposed surface parking areas that contain oil and other vehicle - related pollutants that degrade surface water quality. The proposed project would not impact surface water quality. 4. Development of the proposed project would not result in changes in the amount of surface water in any natural water body. 5. Implementation of the proposed project would not affect the course or direction of water movements in any natural water body. 6. No groundwater extraction or additions would occur as part of the proposed project. In addition, the proposed project would not result in interception of an aquifer by cuts or excavation during grading or construction. 7. Implementation of the proposed project would not alter the direction or rate of flow of groundwater. B. Throughout the permitting process for the project site, no regulatory thresholds have been exceeded for groundwater which would require Koll Center Newport to conduct health effect studies. The implementation of the proposed project would not result in the addition of activities to the project site that would exceed these regulatory thresholds. 9. Groundwater use or extraction would not occur as part of the proposed project and no impact on public water supplies would occur. 9 • Air Quality Development of the additional building area for the proposed project would not alter air movements, moisture, or temperature, or cause any change in the climate since the proposed structural additions would not be of sufficient size or density to influence meteorology either locally or regionally. Additionally, no operational changes that could cause any change in climate would occur on the project site. 2. The emission of significant odors would not be anticipated during construction. The operation of the proposed project would not emit new objectionable odors on the project site and in the vicinity Transportation/Circulation 1. The proposed project would not introduce hazardous design features such as sharp curves or dangerous intersections or provide for the use of incompatible equipment on the project site or adjacent roadways. 2. The proposed project would not result in inadequate emergency access to the project site or affect access to nearby uses. 3. The proposed project is not anticipated to create hazards or barriers for pedestrians and bicyclists utilizing Jamboree Road and Birch Street. 4. Implementation of the proposed project is not anticipated to result in conflicts with adopted policies supporting alternative transportation. 5. No impacts would occur with respect to rail, waterborne, or air traffic. Biological Resources 1. The proposed project would not result in an impact to either plant or animal species. 2. The proposed project would not result in the removal of any locally designated plant or wildlife species. 3. No locally designated natural communities are known to exist on the project site. 4. The project site does not contain open space utilized for wildlife migration or dispersal. Energy and Mineral Resources It is not 'anticipated that the proposed project would require excessive energy consumption or conflict with adopted energy conservation plans. 2. Although non - renewable resources would be utilized in the construction and operation of the proposed project, these resources would not be used in a wasteful or inefficient manner. 3. Implementation of the proposed project would not result in the loss of the availability of a known mineral resource that would be of future value to the region. Hazards The construction and operation of the proposed project would not result in an increase in the risk of an explosion or the release of a hazardous substance relative to the existing conditions. The proposed project would not result in the creation of any new health hazard or potential new health M 11 0 hazard relative to the existing conditions. In addition, the proposed project would not result in the exposure of people to existing sources of potential health hazards. 2. Construction and operation of the additional building area for the proposed project would not interfere with emergency response or emergency evacuation plans on -site and in the local area. 3. Development on the project site as a result of the proposed project would comply with the applicable fire and safety provisions of the City's Uniform Building Code and would not result in an increased fire hazard. Public Services As there are no residential land uses provided with the proposed project, school services would not be directly impacted. Potential demand for housing and the associated increase for school services would be within regional levels accounted for by regional and local population projections. 2. Implementation of the proposed project would not result in the need for additional maintenance of local roadways. 3. The proposed project would not result in an increased need with respect to governmental services such as libraries. Utilities and Service Systems Any potential expansion of telephone or cable networks required to serve the proposed project would be anticipated to be within the capabilities of the respective service providers. 2. With implementation of the proposed project, runoff from the project site would continue to be accommodated by the existing on -site and off -site stormwater drainage facilities. No impact with respect to a scenic vista or scenic highway would occur. Cultural Resources 1. Although there is a possibility that paleontological resources exist at deep levels, the uncovering of such resources would be remote. Although implementation of the proposed project would not be anticipated to disturb paleontological resources, any potential effect would be reduced by compliance with conditions of approval. 2. Although implementation of the proposed project would not be anticipated to disturb archaeological resources, any potential effect would be reduced by compliance with conditions of approval. 3. The project site does not contain any historic monuments or historic resources. 4. No impact as a result of a physical change which would affect unique ethnic cultural values would occur. 5. There are no existing religious or sacred uses associated with the project site. No impact would occur. 7 Recreation 0 Implementation of the proposed project would not result in an increase in the use of existing neighborhood and regional parks or other recreational facilities such that physical deterioration of existing facilities would occur. In addition, the proposed project would not require the construction or expansion of recreational facilities. No significant impact would occur. 2. Implementation of the proposed project would not result in a significant increase in the demand for City recreation programs. No significant impact would occur. 3. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to recreation facilities and programs. ENVIRONMENTAL IMPACT REPORT Additional analysis of the issues was undertaken and presented in the Draft EIR. Though that analysis, it was determined that potential impacts would be less than significant or potential impacts would be avoided or minimized (i.e., less than significant) through the incorporation of standard conditions of approval (e.g., implementation of UBC requirements, etc.). The standard conditions are identified below, were appropriate. Land Use and Planning 1. No impact due to incompatibility with the existing on -site land uses or surrounding land uses would occur. 2. With approval of the requested General Plan Amendment, implementation of the proposed project would not result in an impact related to consistency with the General Plan designation for the project site. 3. The proposed project is consistent with the applicable goals, policies, and objectives of the General Plan Elements. 4. With approval of the requested Amendment to the Koll Center Newport Planned Community text, implementation of the proposed project would not result in an impact related to the existing development regulations and standards for the project site. 5. The proposed project is compatible with the Urban and Industrial designation for the adjacent area within the City of Irvine and no impact would occur. 6. The proposed project is compatible with the University of California, Irvine (UCI) North Campus Mixed Use designation for the area directly to the east of the project site and no impact would occur. 7. The proposed project is consistent with the general land use policy of the Airport Environs Land Use Plan (AELUP) of the Airport Land Use Commission of Orange County (ALUC) and no impact would occur. 8. The proposed project would be consistent with the applicable policies within the Growth Management Chapter of the Regional Comprehensive Plan and Guide (RCPG) and no impact would occur. 9. The proposed project would be consistent with the applicable policies of the Regional Transportation Plan (RTP) and no impact would occur. • • 10. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects, would not result in a cumulative impact related to incompatible land uses or inconsistencies with land use plan and regulations. Standard Conditions SC 4.1 -1 Subsequent project approvals shall be reviewed for consistency with applicable General Plan and Zoning documents prior to development approval. SC 4.1 -2 All development shall be reviewed for consistency with applicable provisions of the Building Code prior to issuance of building permits. SC 4.1 -4 All subsequent project approvals shall be subject to the provisions of the California Environmental Quality Act. If changes are made to the project description or new information becomes available indicating that additional impacts could occur, the project may be subject to additional review and mitigation measures. SC 4.1 -5 The applicant shall comply with FAA Federal Aviation Regulations (FAR) Part 77, requiring that the applicant file Form 7460 -1 for all buildings that would penetrate the airport's imaginary surfaces. In addition, any object which rises above the height of the surrounding development and all other structures will be clearly marked or lighted in accordance with FAA requirements. Population Implementation of the proposed project will not result in a significant impact related to the regional and local population. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact related to the regional or local population. Standard Conditions SC 4.2 -1 The applicant shall comply with the applicable provisions of the Newport Beach Growth Management Element to ensure that the project is consistent with the goals and policies of the City that address population, housing and employment. Water Quality Implementation of the proposed project would not result in a significant impact to water quality. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to water quality. Standard Conditions SC 4.3 -1 Prior to issuance of precise grading or building permits, whichever comes first, the applicant shall submit and obtain approval from Manager, Subdivision and Grading, of a Water Quality Management Plan (WQMP) specifically identifying Best Management Practices (BMPs) that will be used on -site to control predictable pollutant runoff. This WQMP shall identify, at a minimum, the routine, structural and non - structural measures specified in the Countywide NPDES Drainage Area Master Plan (DAMP) Appendix which details implementation of BMPs whenever they are applicable to a project, the assignment of long -term maintenance responsibilities (specifying the developer, parcel 9 0 owner, maintenance association, lessee, etc.); and, shall reference the location(s) or structural BMPs. SC 4.3 -2 Prior to issuance of any grading permits, the applicant shall submit evidence to the Director, Public Works, that the applicant has obtained coverage under the NPDES statewide General Stormwater Permit from the State Water Resources Control Board. Consistent with the Orange County municipal NPDES permit, the proposed project shall include the incorporation of the following structural and non - structural BMPs into the additional development proposed for the site: Structural BMPs The landscape plan for the proposed project will address the requirements of the County Water Conservation Plan and include elements in the irrigation plan to save water and reduce runoff from vegetated areas. Routine inspection of the irrigation system will occur to prevent inadvertent discharge of water through parking lots. The landscape design will include plans with lower water requirements to reduce water use and excess irrigation runoff. Trash containers and dumpsters will be sited to avoid drainage from adjoining roofs or pavements. Trash containers and dumpsters on the project site will be covered to reduce the potential for contamination of storm water runoff. If the area is uncovered, runoff will be required to flow through a water quality inlet prior to discharge into the storm drain system. All catch basins and inlets to storm drains on the project site will be stenciled to alert the public to the destination of pollutants discharged into storm water runoff. Trash racks will be installed and maintained in all inlets on the project site that discharge into the storm drain system. These racks will be designed to remove floatable debris. Water quality inlets (e.g., grease traps) are required in areas where the project would have outdoor storage of oils, solvents, or other materials, such as parking structures, where there would be potential flows from loading docks where solvents or oils are used, or where uncovered trash containers are stored. These inlets will be designed to remove free phase liquid petroleum products, grease, floatable debris, and settleable solids prior to discharge into the storm drain system. Non - Structural BMPs All employees will be provided with materials that document general procedures for the protection of surface water quality. Specific activities that could affect water quality will be restricted on the project site. A list of these activities will be developed, provided to all employees, and posted within common areas. These activities will include, but not be limited to, the repair and cleaning of private automobiles on the project site, discharge of any material into storm drains, and the use of water to flush exposed parking areas or the parking structures. The maintenance of landscaped areas on the project site will be conducted in accordance with the County of Orange Water Conservation Program and Management Guidelines for the Use of Fertilizers and Pesticides. All organic waste generated as a result of maintenance activities (e.g., grass clippings) will be disposed of at an appropriate location and care will be taken to keep material from entering the storm drains. 10 SC 4.3 -3 SC 4.3 -4 Air Quality 0 0 The additional development on the project site will be incorporated into the trash management and litter control program. Normal maintenance procedures will be conducted to empty trash receptacles, remove litter, and clean the trash racks leading to the storm drains. The additional development on the project site will be incorporated into the existing street sweeping program to ensure that all internal roadways, parking lots, and parking structures will be swept on a regular basis. All BMPs will be subject to routine maintenance and training to ensure that all are operational and /or in place. The maintenance procedures will identify responsible parties and schedule inspections to ensure compliance. Site grading and construction shall comply with the drainage controls imposed by the City's grading ordinance and all applicable local and State building codes. The applicant shall provide for weekly vacuum sweeping of all paved parking areas and drive upon completion of construction. 1. Implementation of the proposed project would not result in a significant short-term impact to air quality due to construction - related emissions. 2. Implementation of the proposed project would not result in a significant localized air quality impact related to mobile source emissions. 3. The proposed project is consistent with the Air Quality Management Plan (AQMP) policies and no impact would occur. 4. As construction impacts associated with the "worst -case" assumptions related to the buildout of the proposed project would not exceed South Coast Air Quality Management District's (SCAQMD's) significance thresholds, the proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative short-term impact to air quality due to construction - related emissions. Standard Conditions SC 4.5 -1 SCAQMD Rule 403 which requires that "... every reasonable precaution (is taken) to minimize fugitive dust emissions ..." from grading operations to control particulate emissions, shall be implemented during the grading and construction phase. SC 4.5 -2 Adherence to SCAQMD Rules 431.1 and 431.2 which require the use of low sulfur fuel for stationary construction equipment. SC 4.5 -3 The project shall comply with Title 24 energy- efficient design regulations as well as the provision of window glazing, wall insulation, and efficient ventilation methods in accordance with Uniform Building Code requirements. SC 4.5 -4 Water site and clean equipment morning and evening to comply with the AQMP Fugitive Dust Measure BCM -06. SC 4.5 -5 Trucks leaving the site shall be washed. SC 4.5 -6 Grading operations shall be suspended during first and second stage smog alerts. 11 r] L SC 4.5 -7 All grading operations shall be suspended when wind speeds (as instantaneous gusts) exceed 25 miles per hour. Transportation/Circulation 1. Implementation of the proposed project would not result in an impact to site access. 2. Implementation of the proposed project would not result in an impact related to parking. 3. The proposed project in conjunction with other past, present, or reasonably foreseeable future projects would not result in a cumulative impact related to access and parking. Standard Conditions SC 4.4 -1 Prior to issuance of certificates of occupancy for the proposed project, the circulation system improvements contained in the Traffic Study shall have been constructed (unless subsequent project approval requires modification thereto). The circulation system improvements shall be subject to the approval of the City Traffic Engineer. SC 4.4 -2 Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share, as determined by the City, to the Circulation System Improvements for the affected intersections, described in the Traffic Study. SC 4.4 -3 If the applicant wishes to occupy the proposed development prior to the completion of the improvements identified in the Traffic Study, the applicant shall demonstrate to the satisfaction of the Planning Department and Public Works Department that trip generation reduction measures or measures equally effective as approved by the City Traffic Engineer have been implemented. These measures shall remain in effect until the improvements described in the Traffic Study have been completed. Noise 1. Implementation of the proposed project would not result in a significant short-term impact due to construction - related activities. 2. The increase in the noise levels as a result of the proposed project during the Near Term Traffic Conditions would not be perceptible and no significant impact would occur. 3. The increase in the noise levels as a result of the proposed project during the Long Range Traffic Conditions with Koll Center Newport would not be perceptible and no significant impact would occur. 4. The increase in the noise levels as a result of the proposed project during the Long Range Traffic Conditions without Koll Center Newport would not be perceptible and no significant impact would occur. 5. No significant noise increases as a result of the proposed project related to the mechanical equipment pad and central plant operation would be anticipated and no significant impact would occur. 6. No significant noise increases as a result of mechanical equipment for the new buildings associated with the proposed project would be anticipated and no significant impact would occur. 7. The proposed project in conjunction with other past, present, or reasonably foreseeable future projects would not result in a significant cumulative short-term noise impact due to construction activities. 12 8. The proposed project in conjunction with other past, present, or reasonably foreseeable future projects would not result in a significant cumulative long -term noise impact related to mechanical equipment operation. Standard Conditions SC 4.6 -1 Construction activities shall be limited to 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; construction activities are prohibited on Sunday or any federal holiday. SC 4.6 -2 All construction activities will comply with applicable state and local construction noise regulations. Public Services 1. Implementation of the proposed project would not result in a significant impact to police protection services. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to police protection services. Standard Conditions SC 4.7.1 -1 The proposed site plan will be subject to review by the Newport Beach Police Department. SC 4.7.1 -2 The proposed project shall incorporate an internal security system (e.g., security guards, alarms, access limits after hours, etc.) that shall be reviewed by the Planning Department. SC 4.7.1 -3 A lighting plan shall be submitted for review by the Police Department to ensure that adequate lighting of pedestrian walkways and parking areas is provided. SC 4.7.2 -1 All infrastructure improvements (i.e., fire hydrants, roadways, turn - arounds, etc.) shall be designed in accordance with City standards as outlined in Design Criteria, Standard Special Provisions and Standard Drawings for Public Works Construction. SC 4.7.2 -2 Prior to the issuance of a building permit, the NBFMD shall review the proposed plans and may require automatic fire sprinkler protection. SC 4.7.2 -3 The proposed project will be constructed to comply with all applicable Uniform Building and Fire Code requirements. SC 4.7.2 -4 The NBFMD shall review and approve fire department/emergency access plans. SC 4.7.2 -5 All structures shall be equipped with fire suppression systems approved by the NBFMD. Depending upon the connection of new structures to the existing buildings, the NBFMD may require fire sprinkler systems for all buildings to be interconnected. SC 4.7.2 -6 All on -site fire protection (i.e., hydrants and fire department connections) shall be approved by the NBFMD and Public Works Department. SC 4.7.2 -8 On -site water mains and fire hydrant locations shall be approved by the NBFMD and Public Works Department. SC 4.7.2 -9 The applicant shall ensure that all tenants are required to disclose to the NBFMD any hazardous or flammable chemicals or substances stored on the site. Further, any such 13 0 0 materials shall be stored in accordance with all applicable requirements established by the NBFMD or other regulatory agency. Utilities and Service Systems 1. Implementation of the proposed project will not result in a significant impact to electrical and natural gas service. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a cumulative impact to the provision of electrical and natural gas service. 3. Implementation of the proposed project would not result in a significant impact on water facilities or supply. 4. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to water facilities and supply. 5. Implementation of the proposed project would not result in a significant impact on sewer service. 6. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to the provision of sewer service. 7. Implementation of the proposed project would not result in a significant impact to solid waste disposal services. B. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to solid waste disposal services. Standard Conditions SC 4.8.1 -1 The proposed project shall be designed to conform to Title 24, Paragraph 6, Division T- 20, Chapter 2, Subchapter 4 of the California Administrative Code pertaining to energy conservation requirements. SC 4.8 -1 -2 The proposed project should investigate the use of alternative energy sources (e.g., solar) and, to the maximum extent economically feasible, incorporate the use of said energy sources into the design of the project. SC 4.8.1 -3 The Project Applicant will demonstrate that adequate facilities would be available to serve the proposed project including verification from SCE. SC 4.8.1 -4 The applicant shall provide energy- conserving street and parking lot lighting and minimize decorative or non - functional lighting in a manner acceptable to the Planning Director. SC 4.8.2 -1 The proposed project shall be designed to conform to Title 24, Paragraph 6, Division T- 20, Chapter 2, Subchapter 4 of the California Administrative Code pertaining to energy conservation requirements. SC 4.8 -2 -2 The proposed project should investigate the use of alternative energy sources (e.g., solar) and, to the maximum extent economically feasible, incorporate the use of said energy sources into the design of the project. SC 4.8.2 -3 The Project Applicant will demonstrate that adequate facilities would be available to serve the proposed project including verification from SCG. 14 11 0 SC 4.8.3 -1 Final design of the proposed project shall incorporate water - saving devices for project lavatories and other water -using facilities. SC 4.8.3 -2 Where feasible, reclaimed water should be utilized for non - contact purposes such as irrigation. SC 4.8.3 -3 Efficient irrigation systems which minimize runoff and evaporation should be installed. Irrigation should be automatically timed during early morning hours to minimize waste and evaporation. SC 4.8.3 -4 The water system for the proposed project shall satisfy the requirements of the Irvine Ranch Water District. SC 4.8.4 -1 Prior to the issuance of the building permit, the applicant shall demonstrate that adequate sewer facilities would be available to serve the proposed project. This would include verifications of adequacy from the Utilities Department and the OCSD. SC 4.8.5 -1 The proposed project will be subject to all applicable goals and strategies of the SRRE adopted by the City of Newport Beach pertaining to the reduction of solid waste. SC 4.8.5 -2 Prior to the occupancy of the proposed project, a program for the sorting of recyclable material from other solid wastes shall be developed by the applicant and approved by the General Services Department. Aesthetics 1. Implementation of the proposed project would not result in significant impacts related to aesthetics or light and glare. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to aesthetics and light/glare. Standard Conditions SC 4.9 -1 The lighting system shall be designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent areas. The plans shall be prepared and signed by a Licensed Electrical Engineer, with a letter from the Engineer stating that, in his or her opinion, this requirement has been met. SC 4.9 -2 Signage and exterior lighting shall be of similar design theme throughout the project and sfiall be approved by the Planning Department and Public Works Department. SC 4.9 -3 Lighting for the proposed professional office building and parking structures shall comply with all applicable FAA regulations regarding lighting and glare. FINDING The environmental effects listed above are found not to be significant with the incorporation of the standard conditions identified for each issue. FACTS IN SUPPORT OF FINDING A. The discussion and analysis in the Initial Study indicate that the environmental effects listed above are insignificant. 15 B. The Draft EIR concluded that the environmental effects listed above are insignificant or would be avoided by the implementation of standard conditions of approval identified above. C. During the 45 -day public review period as mandated by CEQA, the Draft EIR was distributed to all responsible and trustee agencies and other interested parties and no comments were received which would modify the above finding. IV. FINDINGS ON SIGNIFICANT IMPACTS OF THE PROPOSED PROJECT A. TRANSPORTATION AND CIRCULATION IMPACT Short-Term Impacts: During construction of the two parking structures, existing surface and structural parking will be eliminated, resulting in short-term parking impacts. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Implementation of the following mitigation measure will reduce potential short-term project - related parking impacts resulting from the demolition of the existing parking structure to a less than significant level. MM 4.4 -1 Prior to issuance of the building permit for the first parking structure, the applicant shall prepare an interim parking relocation plan that will be implemented, subject to the review and approval of the City of Newport Beach, during the construction phases of the proposed parking structures and 10 -story office building. The interim parking plan will identify the various methods and locations that will be employed during the construction phase of project implementation to meet the parking needs of the existing Office Site B (South) office buildings and other uses (based upon typical parking demand and building occupancies), including but not limited to: Utilization of the parking in closest proximity and great utility for the service of the buildings and uses. These could include, but are not limited to Conexant, the University of California and other parts of the Koll Center Newport, including Office Site B. Shuttle service to off -site parking locations. Valet parking to increase efficiency (i.e., density) of parking in Office Site B (South). All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impacts will remain after implementation of the required mitigation measures. 2. IMPACT Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard /Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU /LOS E) with the implementation of the proposed project and buildout of other projects. 16 Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary, derived from the site specific traffic analysis prescribed in the measure listed below, will reduce potential long -term traffic and circulation conditions in the vicinity of the subject property; however, significant impacts at this intersection will remain. MM 4.4 -2a Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share as determined by the City, to implement the following improvements to the MacArthur Boulevard /Jamboree Road intersection: Add a second northbound left turn lane Add a second southbound left turn lane Add a northbound right turn lane The City of Newport Beach has previously contemplated these improvements, prior to the preparation of the KCN Traffic Impact Analysis. Alternative preliminary design concepts for improvements to this intersection have been prepared by the City's consultant. A cost estimate for the design was prepared and submitted to OCTA in an effort to receive Measure M funding. Improvements are planned for construction in 2002 -2003. Finding: The measures prescribed above will significantly reduce long -term, project - related traffic impacts at the MacArthur Boulevard /Jamboree Road intersection. Although these measures will substantially reduce traffic impacts, they cannot be reduced to a less than significant levels. Specific economic, legal, social, technological, or other considerations relating to the implementation of the necessary roadway and circulation improvements make infeasible for the project to mitigate long -term impacts at this intersection. Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth above and below in the Statement of Overriding Considerations. 3. IMPACT Long -Terfh Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the Jamboree Road /1 -405 NB Ramps in the City of Irvine during the a.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 1.03 ICU /LOS F) with the implementation of the proposed project and buildout of other projects. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary, derived from the site specific traffic analysis prescribed in the measure listed below, will ensure that future development adequately addresses the transportation and circulation conditions in the vicinity of the subject property. 17 MM 4.4 -3 Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share as determined by the City of Irvine, to implement the 2020 model geometric improvements to the Jamboree Road /1 -405 NB Ramps. All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impacts will remain after implementation of the required mitigation measures. 4. IMPACT Lona -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the Irvine Avenue /Mesa Drive intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 1.05 ICU/LOS F) with the implementation of the proposed project and buildout of other projects. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary, derived from the site specific traffic analysis prescribed in the measure listed below, will ensure that future development adequately addresses the transportation and circulation conditions in the vicinity of the subject property. MM 4.4 -4 Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share as determined by the City for the circulation improvements for the Irvine Avenue /Mesa Drive intersection: Add a third northbound through lane Add a third southbound through lane Add a southbound right turn lane All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impacts will remain after implementation of the required mitigation measures. 5. IMPACT Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the Jamboree Road /Campus Drive intersection in the City of Newport Beach during th8 p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.99 ICU /LOS E) with the implementation of the proposed project and buildout of other projects. No mitigation measures have been identified. The City of Newport Beach and the City of Irvine are evaluating the feasibility of implementing improvements to this intersection to mitigate this significant impact. Until the appropriate mitigation is identified, this impact is considered significant and unavoidable. Finding: Specific economic, legal, social, technological, or other considerations relating to the implementation of the necessary roadway and circulation improvements make infeasible for the project to mitigate long -term impacts at this intersection. In addition, any changes or alterations are shared with another public agency (i.e., City of Irvine) and have been, or can and should be, agreed to and adopted by that other agency. 18 0 0 Facts in Support of the Finding: The unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth in the Statement of Overriding Considerations. B. AIR QUALITY IMPACT Short-Term Impacts from Construction: Project implementation will result in short-term construction emissions resulting from the use of construction equipment. Project - related emissions of oxides of nitrogen will exceed the significance threshold established by the SCAQMD. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.5 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures will reduce potential short- term impacts; however, significant impacts will remain. MM 4.5 -1a The applicant shall sweep streets if silt is carried over to adjacent public thoroughfares. MM 4.5 -1b Low emission on -site stationary equipment (e.g., clean fuels) shall be used during the construction activities. MM 4.5 -1c Traffic speeds on all unpaved road surfaces shall be reduced to 15 miles per hour or less during construction. (A reduction in travel speeds to 15 miles per hour on unpaved road surfaces normally reduces particulate emissions from this activity by approximately 40 percent to 70 percent.) MM 4.5 -1d The construction contractor shall maintain construction equipment engines by keeping them mechanically tuned. MM 4.5 -1e The construction contractor shall utilize existing power sources (e.g., power poles) or clean fuel generators rather than temporary power generators. MM 4.5 -1f The applicant shall provide on -site power sources during the early stages of the project. MM 4.5 -1g A construction parking plan shall be prepared by the applicant and /or contractor and submitted to the City for approval. The parking plan shall minimize traffic interference. MM 4.5 -1 h A flagperson shall be provided to properly guide traffic and ensure safety at construction sites. MM 4.5 -1 i The applicant and /or contractor shall schedule operations affecting traffic for off -peak hours, where feasible. MM 4.5 -1j A traffic plan to minimize traffic flow interference from construction activities (the plan may include advance public notice of routing) shall be prepared and submitted to the City for approval. 19 L MM 4.5 -1 k Truck deliveries and deliveries and the movement of goods shall be scheduled for off -peak hours when feasible. MM 4.5 -11 An urban tree planting program shall be incorporated into the landscape concept plan in order to offset the loss of existing trees at the construction site. Finding: The measures prescribed above will significantly reduce short-term, project - related construction impacts. Although these measures will substantially reduce air emissions during construction, the project site is located within the South Coast Air Basin (SCAB) which has been designated as a "non - attainment' area. Therefore, project implementation will result in unavoidable significant adverse impacts. Specific economic, legal, social, technological, or other considerations relating to the non - attainment status of the SCAB make infeasible for the project to mitigate construction - related air quality impacts. Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth above and below in the Statement of Overriding Considerations. 2. IMPACT Long -Term, Operational Impacts: Project implementation will result in long -term pollutant emissions resulting from mobile- and stationary sources. Project - related emissions of reactive organic gas and oxides of nitrogen will exceed the significance thresholds established by the SCAQMD. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.5 of the EIR. Facts in Support of the Finding: Potentially significant project - related operational air quality impacts can be substantially reduced by implementing the mitigation measures identified below, as contained in the EIR. MM 4.5 -2a Adequate ingress and egress shall be provided at all entrances to public facilities to minimize vehicle idling at curbsides. MM 4.5 -2b Provide dedicated turn lanes as appropriate and provide roadway improvements at heavily congested roadways. MM 4.5 -2c Improve thermal integrity of the buildings and reduce thermal load with ` automated time clocks or occupant sensors. MM 4.5 -2d Install energy efficient parking lot lighting. MM 4.5 -2e Capture waste heat and re- employ it in nonresidential buildings. MM 4.5 -2f Landscape with native drought- resistant species to reduce water consumption and to provide passive solar benefits. MM 4.5 -2g Provide lighter color roofing and road materials and tree planning programs to comply with the AQMP Miscellaneous Sources MSC -01 measure. This measure reduces the need for cooling energy in the summer. 20 0 10 MM 4.5 -2h Provide bicycle lanes, storage areas, and amenities, and ensure efficient parking management. MM 4.5 -2i Provide preferential parking to high occupancy vehicles and shuttle services. Also, designate additional car pool or vanpool parking. MM 4.5 -2j Encourage employers to provide variable work hours and telecommuting to employees to comply with Advanced Transportation Technology ATT- 01. MM 4.5 -2k Provide dedicated parking spaces with electrical outlets for electrical vehicles. MM 4.5 -21 Develop a trip reduction plan to comply with SCAQMD Rule 2202. SCAQMD Rule 2202 has revamped the requirements for carpooling. In general, mandatory carpooling is no longer required. Compliance with Rule 2202 will be mandatory. MM 4.5 -2m Encourage employers to provide ridematching, guaranteed ride home, or car pool or vanpool to employees as a part of the TDM program and to comply with the AQMP Transportation Improvements TCM -01 measure. Finding: The measures prescribed above will significantly reduce long -term, project - related operational impacts. Although these measures will substantially reduce operational emissions, the site is located in a "non- attainment" area and the incremental increase constitutes an unavoidable significant adverse impact. Specific economic, legal, social, technological, or other considerations relating to the non - attainment status of the South Coast Air Basin make infeasible for the project to mitigate air quality impacts. Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth in the Statement of Overriding Considerations. C. NOISE IMPACT Short-Term. Construction - Related Impacts: Short-term construction levels at Receptor Site 2 (UCI Child Development Center) may reach 69 dB, depending on the type of construction equipment used at the site, resulting in an increase of 4 dB over the maximum noise threshold of the City's Noise Element (i.e., 5.5 dB over the ambient noise levels at that location). Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.6 of the EIR. Facts in Support of the Finding: Construction noise sources are not strictly relatable to a noise standard because they occur only during selected times and the source strength varies sharply with time. In accordance with the City's General Plan Noise Element, construction activities will be limited to within the hours specified by that Element to help minimize any potential nuisance to nearby sensitive receptors. Therefore, project - related construction noise impacts identified above can be substantially reduced by the mitigation measure listed below. MM 4.6 -1 All construction equipment will be muffled and will be maintained in good working order to reduce equipment related noise generation. 21 0 0 All significant environmental effects have been substantially lessened by virtue of the measures described above. No significant, unavoidable impacts will remain after implementation of the required mitigation measures. D. PUBLIC SERVICES IMPACT Lona -Term Impacts: Should closure of OCFA Station 27 occur prior to buildout of the proposed project, or other changes occur that affect the existing level of service provided by the NBFMD, significant impacts may occur to the current level of fire protection and emergency service to the site. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.7.2 of the EIR. Facts in Support of the Finding: Potentially significant project - related impacts to police and law enforcement services and facilities can be substantially reduced by implementing the mitigation measure identified below, as contained in the EIR. MM 4.7.2 -1 a If the closure of OCFA Station 27 should occur prior to the buildout of the proposed project, the Applicant shall be required to assist in the cost of an evaluation of the current call loads, response times, and fire station deployment in order to provide a continued adequate level of service to the project site. If determined to be necessary by the evaluation, the Applicant shall be responsible for the project's proportional share of the required facilities, equipment, and staff resources identified. MM 4.7.2 -2b Should the proposed project be subject to a business excise tax (BET), a portion of that tax shall be directed to the NBFMD for public safety improvements. All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impact will remain after implementation of the required mitigation measure. E. AESTHETICS IMPACT Long -Term Impacts: Introduction of the 2 -level parking structure in the southern portion of Office Site B may result in changes to the site that could adversely affect the visual character of the site by exposing portions of the parking structure and automobile parking surfaces that do not currently exist. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.9 of the EIR. Facts in Support of the Finding: Potentially significant project - related visual impacts can be substantially reduced by implementing the mitigation measure identified below, as contained in the EIR. 22 0 0 MM 4.9 -1a The concrete sides of the 2 -level parking structure shall be textured and colored for faced with brick or other material consistent with the structure's associated buildings. Exposed, uncolored concrete sides shall be avoided. MM 4.9 -1b Linear planters and/or trellises with shrubs and cascading vines shall be provided along the outside of the upper parking level to soften the visual appearance of the structure. All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impact will remain after implementation of the required mitigation measure. The EIR analyzed the cumulative impacts of the project when considered together with other past, present and reasonably foreseeable future projects which were identified in the EIR. The EIR concluded that, with the exception of the cumulative impacts on traffic and circulation with respect to two intersections in the City and long -term, cumulative operational air quality impacts, all of the cumulative impacts of the project when considered together with the related projects were less than significant. For these two unavoidable, adverse cumulative impacts, specific economic legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible mitigation measures or alternatives which would avoid or substantially lessen the significant cumulative environmental effects identified in the EIR. Any remaining unavoidable, cumulative traffic and circulation impacts and long -term, cumulative air quality impacts are acceptable when compared to, and balanced against the facts set forth above and below in the Statement of Overriding Considerations. V. FINDINGS REGARDING ALTERNATIVES TO THE PROPOSED PROJECT CEQA requires that an EIR describe a range of reasonable alternatives to the project, or to the location of the project, which could feasibly attain most of the basic objectives of the project and to evaluate the comparative merits of the alternatives. Section 15126(d)(1) of the State CEQA Guidelines states that the .. discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly." The proposed project has been compared to several "feasible" alternative development scenarios, including the No Project alternative as prescribed by CEQA. These alternatives include: (1) No Project (i.e., Existing City General Plan and Koll Center Newport PC); (2) No Development (no additional development, including 15,000 square feet of allowable retail use); (3) Reduced Development Intensity (82,000 square feet of professional office development); (4) Alternative Land Use (Industrial /Research and Developmenj; and (5) Alternative Location. The analysis contained within the EIR concludes that, with the exception of the project - related cumulative traffic impacts, air emissions that contribute to and exacerbate the existing ambient conditions in the SCAB that has been identified as a "non- attainment" area, and cumulative solid waste impacts, the proposed project will not result in any other long -term project- specific adverse impacts that cannot be mitigated to a less than significant level. Further, the potential impacts of the proposed project itself have not been found to significantly impact any sensitive environmental resource which might be avoided by development at another location. The following discussion summarizes the potential environmental consequences and highlights the comparative merits associated with each alternative identified as "potentially feasible" and analyzed in the EIR as well as the "No Development" alternative. 23 9 0 A. NO PROJECT (EXISTING GENERAL PLAN/KOLL CENTER NEWPORT PC) The No Project alternative would allow development of the subject property in accordance with the Koll Center Newport Planned Community land uses adopted by the City of Newport Beach for Office Site B. According to the Koll Center Newport PC, approximately 15,000 square feet of yet undeveloped retail (10,000 square feet) and restaurant (5,000 square feet) uses have been approved within Office Site B; however, these uses have not been implemented. The No Project alternative analyzes the development of the remainder of the approved retail and restaurant uses approved for Office Site B. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Potential impacts identified in the Draft EIR that would be anticipated from implementation of the proposed project would also occur if the "No Project" alternative were approved by the City; however, some of the most significant impacts (e.g., traffic, noise, aesthetics, etc.) would be reduced proportionately with the elimination of the 250,000 square feet of office development that would be replaced with the 15,000 square feet of retail space and restaurant uses permitted by the adopted Koll Center Newport Planned Community. Project Objectives: Although implementation of this alternative would be consistent with the adopted plans for the site, it is inconsistent with the desired major project objectives. In particular, this alternative would not achieve the goal of facilitating connectivity with the existing and future Conexant development located adjacent to the subject property. Feasibilitv: This alternative is feasible and can be implemented pursuant to the adopted plans for the site Elimination /Reduction of Significant Impacts: This project is effective at reducing potential traffic and (long -term) air quality impacts; however, other impacts will be similar as described for the proposed project. Comparative Merits: With the exception of the No Development alternative, this alternative, along with the reduced development intensity alternative would reduce project - related impacts and is comparatively superior to the proposed project. B. NO DEVELOPMENT (NO ADDITIONAL EXPANSION) This alternative would allow the continuation of the existing professional office and parking facilities that currently occupy the site. Although the KCN Planned Community has been approved for additional 15,000 square feet of retail and restaurant uses (refer to the description of the No Project alternative), this alternative assumes that such development would not occur, even though permitted by the Koll Center Newport PC land use allocations. No additional land use entitlements would be requested or required. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS The same environmental consequences identified in the City's General Plan EIR would also be anticipated under this alternative; however, they would most likely occur at a slower rate than those anticipated as a result of implementing the proposed project. This is due, primarily, to the limited activities undertaken by the Community Development Commission pursuant to the Central City Redevelopment Plan. Project Objectives: Without additional professional office development as proposed, none of the applicant/City objectives would be achieved. IN particular, facilitating connectivity with the adjacent Conexant project and providing additional jobs in the City of Newport Beach 'would not occur. Feasibilitv: Although the No Development alternative is considered to be "environmentally superior" to the other alternatives, it is not feasible when considering the current demand for 24 additional office space in the City of Newport Beach and the availability of land currently designated for professional office and administrative uses. Implementation of this alternative may have the effect of placing development pressures for professional office development in other areas of the City (or subregion) that are currently not designated fur use uses. Elimination /Reduction of Significant Impacts: By eliminating all of the project - related impacts, this alternative is considered to be the "environmentally superior' alternative when compared to the other alternatives. Comparative Merits: Implementation of this alternative would effectively reduce all of the project - related impacts, including those resulting from increased traffic, short- and long -term air quality emissions, short-term noise increases, and potential impacts to fire protection. C. REDUCED DEVELOPMENT INTENSITY This alternative includes the same land use (i.e., professional office); however, the intensity of development has been reduced to yield only 82,000 square feet of gross leasable area in order to eliminate the proposed project's potential traffic and circulation impacts. Based on this figure, the proposed building would be approximately four stories in height and occupy the same location as the proposed project. In addition, rather than requiring two parking structures (i.e., a 6 -level structure to replace the existing 2 -level structure and an additional 2 -level structure), this alternative would require either increasing the capacity of the existing 2 -level structure (i.e., demolish the 2 -level and replace it with a 3- or 4 -level structure) or constructing a 2 -level structure as currently proposed in the southern parking lot to accommodate the additional, 235 parking spaces that would be required for the 82,000 square foot addition. While less intense than the proposed project, this alternative would still necessitate the approval of a General Plan Amendment and amendment to the PC District regulations, as well as a TPO approval and other related approvals similar to the proposed project. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Implementation of this alternative will generally result in the similar, but proportionately reduced environmental consequences described for the proposed project. Specifically, project - related traffic resulting from this alternative will not reach the "significance thresholds" established by the City's TPO and Orange County CMP criteria. Further, when receiving credit for the retail and restaurant development, no significant traffic impacts would occur. Therefore, the significant, unavoidable traffic impacts would be avoided. Other long -term air quality and noise impacts would be reduced proportionately. As a result, impacts to the City's sewer, water, storm drain and circulation system could be exacerbated. Project Objectives: Although the project and City objectives of creating connectivity with the adjacent Conexant project and providing additional jobs in the City of Newport Beach would occur, it would do so to a limited degree and may not be adequate to meet the current demands for additional office space in the area by Conexant or other potential tenants of the project. Elimination /Reduction of Significant Impacts: Similarly to the No Project alternative, implementation of this alternative would effectively reduce all of the significant project - related impacts, including those resulting from increased traffic (e.g., noise, air quality). Feasibility: Although this alternative may be feasible, it is not a completely efficient use of the site for the proposed use in order to meet the current demand for professional office development in the City of Newport Beach. Comparative Merits: This alternative is considered to the comparatively "superior," along with the No Project alternative, when compared to the proposed project and other alternatives. As indicated above, project - related impacts would be reduced and no significant unavoidable impacts would occur. 25 1 D. ALTERNATIVE LAND USE (INDUSTRIAL/RESEARCH AND DEVELOPMENT) Given the proximity to Industrial Site 1 within Koll Center Newport as well as the type and character of development in the area surrounding the subject property, light industrial /research and development uses could be reasonably developed on the subject property. This alternative although similar in intensity as the proposed project, would comprise light industrial development, similar in nature to the adjacent Conexant facility located within Industrial Site 1, also in the KCN Planned Community. Up to 250,000 (gross) square feet of laboratory and office support facilities could be developed on within Office Site B. In addition to this expansion, site development would also necessitate similar facilities as the proposed parking structure, including the likely demolition of the 2 -level parking structure and replacement with a 6- level facility as well as an additional 2 -level parking structure. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Implementation of the Alternative Land Use will result in virtually the same impacts as the proposed project. The 250,000 square feet of industrial /research and development space on the subject property would generate cumulative degradation of several intersections in the City of Newport Beach, resulting in projected unacceptable levels of service in the long -term. Similarly, air quality impacts would also be commensurate with the proposed project and would be significant. Both unavoidable traffic and air quality impacts would be the same as described for the proposed project. Other impacts, including those to water quality, noise, and aesthetics would be similar to the proposed project as well. Project Objectives: Due to the similarity of this alternative with the proposed project, virtually all of the applicant/City objectives would be achieved. Most importantly, connectivity with the adjacent Conexant project would occur, as with the proposed project, and additional jobs would be created in the City of Newport Beach. Elimination /Reduction of Significant Impacts: Implementation of this alternative would generally result in all of the impacts that were described for the project, including increases in traffic, short- and long -term air quality emissions, short-term noise increases, etc.). Feasibility: This alternative is feasible and, as indicated above, would allow the applicant to achieve all of the project objectives. Comparative Merits: When comparing this alternative to the other alternatives, its impacts are similar to those of the proposed project and are greater than most of the alternatives. E. ALTERNATIVE SITE The State CEQA Guidelines require, where feasible alternative locations exist, that an EIR analyze such an alternative location if potential project impacts would be lessened by implementing the project in another location. Such a potential site exists within the Koll Center Newport PC north of the proposed location within Office Site B. This alternative includes development of the proposed project at a site located north of the subject property and west of Industrial Site 1, also within Office Site B. The project parameters are the same as the proposed project and include the development of 250,000 (gross) square feet of professional office space. In addition to the office space, adequate parking would also be required to serve the site. This parking could be in the form of parking structures, surface parking or a combination of these two forms. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Implementation of the Alternative Site will result in virtually the same impacts as the proposed project. The 250,000 square feet of industrial /research and development space on the subject property would generate cumulative degradation of several intersections in the City of Newport Beach, resulting in projected unacceptable levels of service in the long -term. Similarly, air quality impacts would also be 0 0 commensurate with the proposed project and would be significant. Both unavoidable traffic and air quality impacts would be the same as described for the proposed project. Other impacts, including those to water quality, noise, and aesthetics would be similar to the proposed project as well. Proiect Objectives: Due to the similarity of this alternative to the proposed project, all of the project objectives would be achieved, including those that would benefit the City of Newport Beach. Most importantly, connectivity with the adjacent Conexant project could occur, as with the proposed project, and the City of Newport Beach would receive the benefit of additional jobs that would be created to satisfy the local demand. Elimination/Reduction of Significant Impacts: Implementation of this alternative would generally result in all of the impacts that were described for the proposed project, including those resulting from increased traffic (i.e., short- and long -term air quality emissions and short-term noise increases). In addition, traffic impacts will remain significant, as identified and described for the proposed project. Feasibility: As indicated above, this project is not only similar to the proposed project but it would also achieve the stated project objectives and is feasible to implement. Further, the development would be provided on a site that is currently designated to accommodate the proposed use. Comparative Merits: When comparing this alternative to the proposed project and the other alternatives, its impacts are similar to those of the proposed project and are greater than the other alternatives. VI. GENERAL FINDINGS 1. The plans for the project have been prepared and analyzed so as to provide for public involvement in the planning and CEQA processes. 2. The degree that any impacts described in the EIR are perceived to have a significant effect on the environment, or such impacts appear ambiguous as to their effect on the environment, any significant effect of such impacts has been substantially lessened or avoided by the standard conditions and mitigation measures set forth in the Final EIR or is outweighed by the facts set forth in the Statement of Overriding Considerations. 3. Comments regarding the Draft EIR received during the public review period have been adequately responded to in written Responses to Comments attached to the Final EIR. Any significant effects described in such comments were avoided or substantially lessened by the standard conditions mitigation measures described in the Draft EIR or are outweighed by the facts set forth in the Statement of Overriding Considerations. 4. The analysis contained in the Draft EIR of the environmental effects and mitigation measures represent the independent judgment and analysis of the City of Newport Beach. 27 • EXHIBIT EIR -2: STATEMENT OF OVERRIDING CONSIDERATIONS OFFICE SITE B EXPANSION - KOLL CENTER NEWPORT PC I. INTRODUCTION This City Council adopts and makes this Statement of Overriding Considerations concerning the Koll Center Newport project's unavoidable significant impacts in order to explain why the project's benefits override and outweigh its unavoidable impacts. The project will bring substantial benefits to the City of Newport Beach, including but not limited to, the provision of jobs for highly- trained workers, the provision of additional professional office development in close proximity to existing and proposed residential sectors, the realization of a net annual recurring revenue surplus of approximately $52,000, the payment of a traffic mitigation fee of $8.00 per square foot of the allowed additional building entitlement, or $2 million, the payment of $0.45 per square foot of the allowed additional building entitlement, or $112,500, for the purpose of funding a Planning Study for the John Wayne Airport area, and the payment of a $60,000 "fair share" fee to contribute to the cost of a new fire station to serve the Kell Center Newport Planned Community and other nearby areas of the City. The City Council finds that the project's unavoidable impacts are acceptable in light of the project's benefits. Each benefit set forth in this Statement constitutes an overriding consideration warranting approval of the project, independent of the other benefits, despite each and every unavoidable impact. II. UNAVOIDABLE ADVERSE IMPACTS The Environmental impact Report and City staff review identified the following impacts that could not be mitigated to a less than significant level. Transportation and Circulation At two intersections where significant cumulative traffic impacts are forecast as a result of project- related traffic, i.e. MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, no feasible mitigation measures have been identified. The feasibility of implementing improvements to these intersections that will mitigate the significant impacts are being evaluated. However, until the appropriate improvements are identified, these impacts are considered significant and unavoidable: Impact 4.4 -2: Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour, which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. [note: above ICU number is correction of typographical error in Draft EIR] Impact 4.4 -5: Traffic generated by the proposed project will contribute to the cumulative degradation of the Jamboree Road/Campus Drive intersection in the City of Newport Beach during the p.m. peak hour, which is forecast to operate at an unacceptable level of service (i.e., 0.99 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. P Air Quality • Because an individual development cannot carry out measures that would substantially reduce vehicle trips (VT) generated or vehicles miles traveled (VMT), effective programs that reduce single- occupant vehicle trips must be more regional in nature. Transit availability, bicycle paths, park- and -ride facilities, HOV lanes, etc., as important elements of any VT/VMT reduction programs, can only be integrated on a City- or county- or basin -wide basis rather than through the efforts of any single residential subdivision. The ability of any developer to effect pollution reducing travel mode choices by future occupants is small. As a result, the project - related air quality impacts and cumulative impacts will remain significant and unavoidable. These significant unavoidable air quality impacts include: Impact 4.5 -1: Project implementation will result in short-term construction emissions resulting from the use of construction equipment. Project- related emissions of oxides of nitrogen (NOx) will exceed the significance threshold established by the SCAQMD. Impact 4.5 -2: Project implementation will result in long -term pollutant emissions resulting from mobile and stationary sources. Project- related emissions of reactive organic gas ROG) and oxides of nitrogen (NOx) will exceed the significance thresholds established by the SCAQMD. In addition to the impacts of the project described above, the project, in conjunction with other past, present, and reasonably foreseeable future projects will result in significant cumulative impacts related to several intersections within the City for which no feasible mitigation measures have been identified. Additionally, the project, in conjunction with other past, present and foreseeable future projects will exacerbate the currently degraded regional ambient air quality and will have an unavoidable significant long -term cumulative impact on air quality, even after implementation of mitigation. III. OVERRIDING CONSIDERATIONS The proposed project consists of the adoption of a General Plan Amendment, an Amendment to the Planned Community District Regulations adopted for the Koll Center Newport Planned Community, a development agreement, and related actions. Analysis in the Environmental Impact Report (EIR) for this project has concluded that implementation of the proposed project will result in long -term, project - related and cumulative impacts that cannot be mitigated to a less than significant level. Impacts in these and other cases have been mitigated to the extent considered feasible. All significant adverse impacts are identified in the EIR and are addressed in the Statement of Findings for the project. The Newport Beach City Council determines that the residual unavoidable adverse air quality and traffic impacts identified in Section II which will remain after mitigation are outweighed by specific economic, legal, social, technological, or other benefits of the project. In making this determination, the following factors and public benefits were considered as overriding considerations that apply to each unavoidable impact. 1. The project provides short-term construction jobs and will also foster the provision of jobs for highly- trained workers that will strengthen the City's existing general employment base. 2. The project provides additional professional office development in close proximity to existing and proposed residential sectors of the City and County, thereby providing the opportunity to reduce commute distances and reduce traffic and air emissions. 2 0 0 3. The proposed development is designed and landscaped so as to provide an aesthetically pleasing business environment that is compatible with the surrounding professional office and commercial areas within the John Wayne Airport complex. 4. Project implementation will result in a net annual recurring revenue surplus of approximately $52,000, based on the fiscal impact analysis prepared for the project. As a result, the project will pay for itself and will not require City funds or resources to provide needed public facilities and services. 5. The Project will provide resources to the Newport -Mesa Unified School District via payment of a floor area development fee assessed to new commercial development under state law. 6. The Project will pay transportation fees to the San Joaquin Hills Transportation Corridor Joint Powers Authority and/or Transportation Corridor Agencies for improvements to regional transportation facilities, including the San Joaquin Hills Transportation Corridor. 7. The Project will pay "Fair Share Traffic Fees" in the amount of $235,570 for circulation improvements that will be constructed in the City of Newport Beach. These improvements will be undertaken by the City to alleviate unacceptable service levels at intersections and along roadway segments both in the project area and in the City of Newport Beach. 8. The Project will pay a Traffic Phasing Ordinance fee of $70,000 to contribute to the improvements identified for the MacArthur Boulevard/Jamboree Road intersection. These improvements include the construction of a second northbound left turn lane on MacArthur Boulevard, a second southbound left -turn lane on MacArthur Boulevard, and a second northbound right -tum lane on MacArthur Boulevard. Implementation of these improvements will fully mitigate the short-range impacts of project trips at that intersection. 9. The Project will pay a mitigation fee of $8.00 per square foot of the allowed 250,000 gross square feet of additional entitlement, or $2 million. Those funds will be used to pay for mitigating the long -range traffic impacts at intersections in the area of the project. 10. The Project will pay a fee of $0.45 per square foot for the allowed 250,000 gross square feet of additional entitlement, or $112,500, to the City of Newport Beach to be used by the City solely for the purpose of funding a Planning Study for the John Wayne Airport area -The planning study will determine the type and intensity of further development which should be permitted in the area and the road and other infrastructure improvements which will be needed to accommodate existing and future development. II. The Project will pay a $60,000 "fair share" fee of the estimated $2,000,000 needed to construct and equip a new fire station in the City of Newport Beach that will serve, not only the Koll Center Newport Planned Community, but also a larger service area identified by the City. The $60,000 paid by the project applicant will be used solely to fund the acquisition of a new fire station site, the construction of a new fire station, and/or the equipment/staffing of the station. 12. The proposed project will help to achieve several goals and policies articulated in the Newport Beach General Plan, including the following: 3 0 0 a. The City shall provide for sufficient diversity of land uses so that schools, employment, recreation areas, public facilities, churches and neighborhood shopping centers are in close proximity to each resident of the community: The project consists of the intensification of office development on a project site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. Since the project site is located in proximity to residential areas, the additional employment opportunities resulting from construction of a new 250,000 square -foot office tower on the site would contribute to a more desirable jobs- housing balance in the area. b. The siting of new buildings and structures shall be controlled and regulated to insure, to the extent practical, the preservation of public views, the preservation of unique natural resources, and to minimize the alteration of natural land forms along bluffs and cliffs: The site of the new office tower is set back substantially from both MacArthur Boulevard and Jamboree Road in order to mitigate visual impacts from public streets. One of the new parking structures will be located close to the intersection of MacArthur and Jamboree. However, this two -level structure will be depressed partially below grade and the perimeter of the structure will be heavily landscaped in order to soften public views. Additionally, the existing two -level parking structure just north of the existing twin ten -story office towers will be replaced with a new six -level structure located 200 feet further back from Jamboree and 50 feet further back from MacArthur than the existing structure. Per design standards added to the PC text, both new parking structures will be textured and landscaped to soften their visual impacts. The City shall develop and maintain suitable and adequate standards for landscaping, sign control, site and building design, parking and undergrounding of utilities and other development standards to insure that the beauty and charm of existing residential neighborhoods is maintained, that commercial and office projects are aesthetically pleasing and compatible with surrounding land uses and that the appearance of and activities conducted within, industrial developments are also compatible with surrounding land uses and consistent with the public health, safety and welfare: The PC District Plan, i.e. the KCN Planned Community text, contains extensive landscaping standards for different building heights. In the case of the proposed ten -story building, substantial landscaping will be required within Office Site B to soften and mitigate the development. The PC text also contains detailed standards for parking, signs and other development standards. Iv P EXHIBIT EIR -3: MITIGATION MONITORING AND REPORTING PROGRAM KOLL CENTER NEWPORT INTRODUCTION The California Public Resources code Section 2108.16 requires that a lead or responsible agency adopt a mitigation monitoring and reporting program (MMRP) when approving or carrying out a project where an environmental document, either an environmental impact report (EIR) or a mitigated negative declaration, has identified measures to reduce potential adverse environmental impacts to levels that are less than significant. An EIR has been prepared for this project which addresses the potential environmental impacts and, where appropriate, recommends measures to mitigate these impacts. An MMRP is, therefore, required to ensure that adopted mitigation measures are successfully implemented. The City of Newport Beach is the lead agency for the Koll Center Newport Planned Community (PC) project and, therefore, is responsible for implementation of the MMRP. This report describes the MMRP for the Koll Center Newport PC project and identifies the department in the City of Newport Beach that will be responsible for monitoring implementation of the MMRP. MITIGATION MONITORING AND REPORTING PROGRAM MANAGEMENT The MMRP for the Koll Center Newport PC project will be active through all phases of the project, including design, construction, and operation. The proposed project will be developed in phases and will include building permits, occupancy permits and other permits required for implementation of the project components. There are mitigation measures that must be continuously implemented throughout the development of the project site. For example, mitigation measures implemented "prior to building permits" must be implemented prior to the issuance of each building permit issued for the project. The enforcement of the MMRP is also the responsibility of the City of Newport Beach. The City personnel responsible for verifying compliance with the mitigation measures are identified in the MMRP and include the Planning Director, the Director of Public Works, Utilities Director, and the City Engineer, and City Traffic Engineer (or their designees). These department heads are responsible for ensuring that the mitigation measures are implemented by the project applicant. If an adopted mitigation measures is not being properly implemented, the designated monitoring personnel shall require corrective actions to ensure adequate implementation. MITIGATION MONITORING AND REPORTING PROGRAM The attached table identifies the mitigation program required to be implemented by the project applicant for the Koll Center Newport PC project. The mitigation program includes the following components: (1) standards conditions (SCs); and (2) mitigation measures (MMs). The table identifies the timing of implementation, the respective measure (i.e. SC or MM) required, and the individual responsible for monitoring compliance. The MMRP also includes columns that will be used by the compliance monitor to document when implementation of the measure is completed. Mitigation Monitoring and Reporting Program Koll Center Newport PC - Office Site B Page 1 of 13 1] THIS PAGE INTENTIONALLY LEFT BLANK 0 Miftgatran Momfonng and Reporting Program Koll Center Newport PC - Office Site B . 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Table 1.1, (Transportation and Circulation), Page 1 -8 Delete entry in last row of table related to Jamboree Road/Bristol Street North (Potential Impacts, Mitigation Measures and Level of Significance after Mitigation. 2. Table 3 -1, Page 3 -5 Revise column 5 (P.C. Text - Square feet) in line 2 (Office Site B) to read: 963,849 square feet. Revise column 5 (P.C. Text - Square feet) in line 8 (Sub -Total Office) to read: 2,385,600 square feet Revise column 5 (P.C. Text - Square Feet) in line 12 (Total) to read: 2,981,485 square feet 3. Section 3.4.1, Page 3 -6 Delete the third paragraph and replace it with the following text: "The General Plan Amendment proposes a 250,000 square -foot increase in the Land Use Element's maximum gross floor area for Office Site B. In addition to this General Plan Amendment, the KCN Planned Community District Plan (PC text) must also be amended to increase the amount of office square footage allocated to Office Site B. "The General Plan Land Use Element specifies building square footage as gross floor area. By contrast, the PC text lists square footage as net floor area. Per the Zoning Code, gross floor area includes all floor area within the exterior wall surface of a building while net floor area excludes non - habitable space, such as equipment rooms, elevator shafts, stairwells, etc. "As used by the City, net floor area is considered to be 95 percent of gross floor area. Therefore, the proposed General Plan increase in gross floor area of 250,000 square feet corresponds to an increase in net floor area in the PC text of 237,500 square feet. Currently, 963,849 net square feet of office development is permitted within Office Site B. Approval of the proposed PC text amendment would bring the total amount of professional and business office use in Office Site B to 1,201,349 net square feet (i.e., 963,849 net square feet + 237,500 net square feet). 0 0 "In addition to the PC's allocated office use, there are separate unused allocations for 5,000 square feet of restaurant space and 10,000 square feet of retail/service space in Office Site B. The PC text provides that these 15,000 square feet, if not used, will automatically revert to office use. Therefore, the proposal includes this "reverted" restaurant/retail space within the 237,500 square feet of new office use. (Thus, the total increase in net square footage will actually be 222,500 (i.e., 237,500 net square feet - 15,000 net square feet). For purposes of clarity, the PC text amendment will explicitly convert the above restaurant/retail space to office use." 4. Section 3.4.2, Page 3.7 Change Zone Change (Koll Center Newport Planned Community District Regulations "bullet" to read: • Approval of an amendment to the Koll Center Newport Planned Community District Regulations dated May 5, 1972 (Amended August 10, 1988) to increase the amount of office space within Office Site B. In addition, the PC text will be revised as necessary to permit the proposed 250,000 (gross) square feet (i.e., 237,500 net square feet, based on 95 percent of gross) of additional professional office development, including the elimination of the currently approved but not developed restaurant and retail area remaining within Office Site B. As a result, a total of 222,500 net square feet of office space (237,500 net square feet - 15,000 net square feet of restaurant/retail space) will be added to the PC text for Office Site B. Amendment No. 26, as currently proposed, is included as Appendix C. 5. Section 1.5, Page 1 -7 (Row 2, Column 1) and Section 4.4.5, Page 4.4 -25 Replace Impact 4.4 -2 with the following: Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. 6. Section 4.4.5, Page 4.4 -26 Delete Impact 4.4 -6 and MM 4.4 -6. 7. Section 4.4.6, Page 4.4 -27 Add the following impact as a significant, unavoidable impact before Impact 4.4 -5: Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. 2 0 n u 8. Chapter 9.0, Section 4.4 (Transportation and Circulation), Page 9 -5 Delete MM 4.4 -6. 9. Chapter 10.0, Section 4.4 (Transportation and Circulation), Page 10 -1 Add the following impact before Impact 4.4 -5: Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. 0 • STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, 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. 2001 -54 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 26th day of June, 2001, and that the same was so passed and adopted by the following vote, to wit: Ayes: O'Neil, Ridgeway, Glover, Bromberg, Mayor Adams Noes: Heffernan Absent: Proctor Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of June, 2001. (Seal) City Clerk Newport Beach, California RESOLUTION NO. 2001 -55 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING TRAFFIC STUDY NO. 119 REGARDING THE EXPANSION OF OFFICE SITE B IN KOLL CENTER NEWPORT. WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Zoning Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, a traffic study, entitled Office Site B — Koll Center Newport Planned Community (WPA Traffic Engineering, Inc., March 2000), was prepared for the project in compliance with Chapter 15.40 of the Municipal Code (Traffic Phasing Ordinance) and incorporated into the Environmental Impact Report for the project (SCH #99091120); and WHEREAS, the traffic study indicated that the project will increase traffic on nine primary intersections by one percent (1 %) or more during Peak Hour periods one year after the completion of the project; and WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the Traffic Phasing Ordinance, the traffic study determined that eight of the preceding nine primary intersections will operate at satisfactory levels of service as defined by the Traffic Phasing Ordinance; and WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the Traffic Phasing Ordinance, the traffic study determined that one primary intersection, MacArthur /Jamboree, presently operates at an unsatisfactory level of service during the a.m. peak hour and that the project will further impact the intersection unless mitigation measures are implemented. The traffic study identified the following mitigation measures, in the form of intersection improvements, the costs of which are to be shared by the project and other projects impacting the same intersection via mandatory conditions of approval: addition of a second northbound left turn lane, a second southbound left turn lane and a northbound right turn lane; and WHEREAS, the above - described improvements will reduce the identified short-range traffic impacts from the project to a less - than- significant level; and WHEREAS, based on the weight of the evidence in the administrative record, including the traffic study, the City Council finds: 1. Construction of the project will be completed within 60 months of project approval; and 2. With planned intersection improvements, contributed to by the project, the project will neither cause nor make worse an unsatisfactory level of traffic service at any impacted primary intersection. WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly - noticed public hearings, at which time the proposed General Plan Amendment and Zoning Amendment were considered and forwarded to the City Council with a recommendation of approval; and WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the proposed General Plan Amendment and Zoning Amendment were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Newport Beach does hereby approve Traffic Study 119 based on the weight of the evidence in the administrative record, including the traffic study. ADOPTED this 26th day of June, 2001, by the following vote, to wit: 2 ATTEST: CITY CLERK AYES, COUNCIL MEMBERS O'Neil, Ridgeway, Glover, Bromberg, Mayor Adams NOES, COUNCIL MEMBERS Heffernan ABSENT COUNCIL MEMBERS Proctor MAYOR STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, 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. 2001 -55 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 26th day of June, 2001, and that the same was so passed and adopted by the following vote, to wit: Ayes: O'Neil, Ridgeway, Glover, Bromberg, Mayor Adams Noes: Heffernan Absent: Proctor Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of June, 2001. (Seal) City Clerk Newport Beach, California 0 0 RESOLUTION NO. 2001 -56 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A GENERAL PLAN AMENDMENT TO INCREASE THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [GPA 97 -3(B)l WHEREAS, pursuant to Section 65300 of the California Government Code, the City of Newport Beach has adopted a comprehensive, long -term General Plan for the physical development of the City; and WHEREAS, Kell Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13- 19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with the California Environmental Quality Act (CEQA) to address the environmental impacts of the subject amendments. The EIR, comments on the EIR, and responses to those comments were reviewed by the City Council and certified as complete, reflecting the independent judgment of the City of Newport Beach; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the General Plan Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the General Plan Amendment was considered. A notice of time, place and purpose of the public 0 1] hearing was duly given and testimony was presented to and considered by the City Council at the public hearing; and WHEREAS, the City Council of the City of Newport Beach hereby finds as follows with regard to GPA 97 -3(B): 1. The project consists of the intensification of office development on a project site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. Since the project site is located in proximity to residential areas, the additional employment opportunities resulting from construction of a new 250,000 square -foot office tower on the site would contribute to a more desirable jobs- housing balance in the area. Therefore, the project is consistent with Policy A of the General Plan Land Use Element. 2. The intent of Policy B of the Land Use Element is to establish limits on land use intensity in order to insure that the City's circulation system operates at an acceptable level of service. Provisions to implement this policy, such as the Traffic Phasing Ordinance and development limits, have been incorporated into the Municipal Code. The proposed project is subject to these provisions and has been reviewed under them in the EIR. The EIR traffic study indicates that the proposed project will generate a significant increase in the number of vehicle trips through major intersections, including MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, where no feasible mitigation measures have yet been identified. However, the project will provide for both direct intersection improvements and the payment of traffic mitigation fees. Such fees will be available for the mitigation of impacts at the above intersections when feasible improvements are identified. Therefore, the project is consistent with Policy B. 3. The site of the new office tower is set back substantially from both MacArthur Boulevard and Jamboree Road in order to mitigate visual impacts from public streets. One of the new parking structures will be located close to the intersection of MacArthur and Jamboree. However, this two -level structure will be depressed partially below grade and the perimeter of the structure will 2 • • be heavily landscaped in order to soften public views. Additionally, the existing two -level parking structure just north of the existing twin ten -story office towers will be replaced with a new six -level structure located 200 feet further back from Jamboree and 50 feet further back from MacArthur than the existing structure. Per design standards added to the PC text, both new parking structures will be textured and landscaped to soften their visual impacts. Therefore, the project is consistent with Policy D of the Land Use Element. 4. The PC District Plan, i.e. the KCN Planned Community text, contains extensive landscaping standards for different building heights. The PC text also contains detailed standards for parking, signs and other development standards. Therefore, the project is consistent with Policy F of the Land Use Element. 5. The amendment will retain compatibility between land uses in that it will allow intensification of office development on a site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. NOW THEREFORE BE IT RESOLVED, that: 1. The City Council hereby adopts, by reference, the CEQA- required "Statement of Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures - required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations ", attached as Exhibit "EIR -2" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits 3 0 0 EXHIBIT GP -1: REVISIONS TO LAND USE ELEMENT TEXT (GENERAL. PLAN AMENDMENT 97 -3(B)) IN THE SECTION OF THE LAND USE ELEMENT TEXT ENTITLED "AIRPORT AREA (STATISTICAL AREA L4) ". 1. Amend Paragraph 1 -2, "Office Site B ", to read as follows: "This site is designated for Administrative, Professional and Financial Commercial land use and is allowed 1,310,898 sq.ft. Support retail commercial uses are allowed within this allocation. [GPA 97- 3(B)]" 2. Amend the table entitled "Estimated Growth FOR STATISTICAL AREA 1-4" to reflect the preceding increase in gross floor area for KCN Office Site B. r] resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby finds that the benefits override the identified adverse environmental impacts. 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution certifying the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MMRP. 4. In light of the preceding findings and actions, the City Council hereby approves GPA 97 -3(B), consisting of the increase in gross building square footage allowable in Office Site B as specified in Exhibit "GP -1 ", attached hereto. ADOPTED this 26'h day of June, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS .O'Neil, Ridgeway, Glover, Bromberg, Mayor Adams NOES, COUNCIL MEMBERS Heffernan ABSENT COUNCIL MEMBERS Proctor imp `Ok *°iP Z A ST: of ,-, #) CITY CLERK luv :7 0 • w STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, 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. 2001 -56 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 26th day of June, 2001, and that the same was so passed and adopted by the following vote, to wit: Ayes: O'Neil, Ridgeway, Glover, Bromberg, Mayor Adams Noes: Heffernan Absent: Proctor Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of June, 2001. (Seal) .�� '2'2 City Clerk Newport Beach, California CITY OF NEVORT BEACH � dEW �Rr 6 `Y PLANNING DEPARTMENT t5 S 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644-3200; FAX (949) 644 -3250 Hearing Date: June 26, 20013 Agenda Item: 33 N�1 �5 / Staff Person: Larry N. Lawrence (949) 661 -8175 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Koll Office Site B: GPA, PC Amendment, and Development Agreement SUMMARY: General Plan Amendment No. 97 -3(B), Zoning Amendment No. 905, Traffic Study No. 119, Development Agreement No. 16, and EIR No. 158: To allow an additional 250,000 gross square feet of office use within Office Site B of the Koll Center Newport Planned Community in order to provide for future construction of a ten -story office tower. Located at MacArthur Boulevard and Jamboree Road (see Vicinity Map). ACTION: Hold hearing; certify the EIR by adopting the attached resolution, approve the Traffic Study by adopting the attached resolution, approve GPA per the attached resolution, and introduce ordinances to approve the Development Agreement and Zoning Amendment, then pass to second reading on July 10, 1 L 2001. p r -or- APPROVED Deny the proposed project by adopting the attached resolution. GENERAL PLAN: Existing: Office Site B is designated for Administrative, Professional and Financial Commercial land use in the Land Use Element. Proposed: The same land use as above, but with a 250,000 square -foot increase in the maximum gross floor area. ZONING: Existing: Office Site B is zoned for Professional and Business Office, Restaurant, and Retail- Service uses under the Koll Center Newport Planned Community District Plan or PC Text. Proposed: The zoning amendment would increase the maximum net square footage of office use while eliminating the restaurant and retail- service uses. APPLICANT/ Koll Center Newport Number A OWNER: 1900 Main Street, Suite 350 Irvine, CA 92614 BACKGROUND I. PROJECT DESCRIPTION The applicant is proposing to develop a ten -story professional office building, a 1200 -car six -level parking structure to replace an existing two -level parking structure; and a 500 -car two -level parking structure to replace an existing surface parking area (see Conceptual Site Plan). The project applications include the following: 1. General Plan Amendment No. 97 -3(B) — An amendment to the Land Use Element to increase the maximum gross square footage allowable in Office Site B by 250,000: from 1,060,898 to 1,310,898. 2. Zoning Amendment No. 905 — An amendment to the Koll Center Newport Planned Community text, which is the zoning document for the site, to increase the maximum net square footage allowable in Office Site B by 237,500: from 963,849 to 1,201,349. 3. Development Agreement No. 16 — An agreement between the City and the developer for the payment of special mitigation fees not required of other projects in return for assurances that the project can proceed. 4. Traffic Study No. 119 — A traffic study and Traffic Phasing Ordinance (TPO) analysis for the project. 5. Environmental Impact Report No. 158 — Certification of the EIR. 2. PROJECT OBJECTIVES The applicant's project objectives are as follows: • To develop a professional office project that is consistent and compatible with surrounding commercial development in the Koll Center Newport Planned Community. • To provide additional professional office development adjacent to the existing Conexant facility which will enhance the campus environment and facilitate connectivity to existing and future Conexant facilities. • To develop a project that is compatible with and can utilize the existing infrastructure (e.g., sewer, water, stormwater runoff, etc.) capacity. • To develop additional professional office space in the City of Newport Beach, thereby promoting the creation of new jobs in a housing -rich city. • To develop a project that more efficiently utilizes valuable developable land in the Koll Center Newport area by constructing new parking structures, thereby minimizing the use of surface parking areas. Koll Office Site B June 26, 2001 Page 2 KOLL CENTER NEWPORT Campus Drive r twj O> E ITE F u, .OFFICE SITE C OFFICE SITE D �<7 COURTHOUSE w 11 Birc Street OFFICE SITE G OFFICE SITE B OFFICE SITE A \} pa E G ^e Lake I k INDUSTRIAL SITE i �4 ff i PROJECT SITE `,,Orritr SITE B 1 NORTH Koll Office Site B June 26, 2001 Page 3 CONCEPTUAL SITE PLAN r 3 ( r u / ` , MCI i r ell �. 1 i f T 1•t ON .. 5 � � .e tp,•$� �� . T 4 aI' Koll Office Site B June 26, 2001 Page 4 3. GROSS VS. NET FLOOR AREA The General Plan Land Use Element specifies building square footages as gross floor area. By contrast, the KCN Planned Community District Plan (or PC text for short) lists square footages as net floor area. Per the Zoning Code, gross floor area includes all floor area within the exterior wall surface of a building, while net floor area excludes non - habitable space, such as equipment rooms, elevator shafts, stairwells, etc. As used by the City, net floor area is considered to be 95 percent of gross floor area. Therefore, the proposed General Plan increase in gross floor area of 250,000 square feet corresponds to an increase in net floor area in the PC text of 237,500 sq.ft. 4. SITE OVERVIEW AND SURROUNDING LAND USES The project site is located at the intersection of MacArthur Boulevard and Jamboree Road. John Wayne Airport (JWA) is approximately one mile to the northwest. The project site is within the Koll Center Newport's "Office Site B ", which encompasses approximately 43.7 acres of the total 177 -acre Planned Community. The project site, containing the proposed new office tower and supporting parking, will occupy approximately 14.6 acres at the southern corner of Office Site B. Surrounding land uses are as follows: Project Site: Office Site B: office and restaurant uses. To the west: Across MacArthur Boulevard: professional office uses. To the north Conexant research/industrial and office uses. To the east: Across Jamboree Rd.: UCI Child Dev. Center and facilities yard and open space. To the south: MacArthur /Jamboree intersection and Corona del Mar Freeway. ANALYSIS 1. GENERAL PLAN Land Use and Floor Area The project site is designated for "Administrative, Professional & Financial Commercial" use in the Land Use Element of the General Plan. This land use category has been applied to areas which are predominantly dedicated to office use, but which also accommodate supporting retail and service uses. Permitted uses include offices, medical offices, retail and service commercial, restaurants, hotels and motels, commercial recreation, and senior citizen housing facilities. As noted above, the General Plan Amendment proposes a 250,000 square -foot increase in the Land Use Element's maximum gross floor area for Office Site B; that is, from 1,060,898 to 1,310,898 gross square feet. The land use designation of Administrative, Professional and Financial Commercial use would remain unchanged. Koll Office Site B June 26, 2001 Page 5 General Plan Policies The Land Use Element, a component of the General Plan, contains 12 development polices. The proposed project, in association with identified mitigation measures and other project features, must be evaluated against the polices which are applicable to the project in order to determine its consistency with the General Plan. NOTE: Land Use Element Policies C, E, G, H, I, J, and L refer to annexations, land use conversions and community commercial, marine- related and flood -prone areas of the City. They are therefore not applicable to the present project. A. The City shall provide for sufficient diversity of land uses so that schools, employment, recreation areas, public facilities, churches and neighborhood shopping centers are in close proximity to each resident of the community. The project consists of the intensification of office development on a project site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. Since the project site is located in proximity to residential areas, the additional employment opportunities resulting from construction of a new 250,000 square -foot office tower on the site would contribute to a more desirable jobs- housing balance in the area. Therefore, the proposed project is consistent with this policy. B. To insure redevelopment of older or underutilized properties, and to preserve the value of property, the floor area limits specified in the Land Use Element allow for some modest growth. To insure that traffic does not exceed the level of service desired by the City, variable floor area limits shall be established based upon the trip generation characteristics of land uses. The intent of Policy B is to establish limits on land use intensity in order to insure that the City's circulation system operates at an acceptable level of service. Provisions to implement this policy, such as the Traffic Phasing Ordinance and development limits, have been incorporated into the Municipal Code. The proposed project is subject to these provisions and has been reviewed under them in the EIR. The EIR traffic study indicates that the proposed project will generate a significant increase in the number of vehicle trips through major intersections, including MacArthur Boulevard/Jamboree Road and Jamboree Road/ Campus Drive, where no feasible mitigation measures have yet been identified. However, the project will provide for both direct intersection improvements and the payment of traffic mitigation fees. Such fees will be available for the mitigation of impacts at the above intersection when feasible improvements are identified. Therefore, the proposed project could be deemed consistent with this policy if the financial contribution to these as -yet unidentified improvements is determined sufficient. D. The siting of new buildings and structures shall be controlled and regulated to insure, to the extent practical, the preservation of public views, the preservation of unique natural resources, and to minimize the alteration of natural land forms along bluffs and cliffs. Koll Office Site B June 26, 2001 Page 6 The site of the new office tower is set back substantially from both MacArthur Boulevard and Jamboree Road in order to mitigate visual impacts from public streets. One of the new parking structures will be located close to the intersection of MacArthur and Jamboree. However, this two -level structure will be depressed partially below grade and the perimeter of the structure will be heavily landscaped in order to soften public views. Additionally, the existing two -level parking structure just north of the existing twin ten - story office towers will be replaced with a new six -level structure located 200 feet further back from Jamboree and 50 feet further back from MacArthur than the existing structure. Per design standards added to the PC text, both new parking structures will be textured and landscaped to soften their visual impacts (see Parking Structure Buffering on p. 10 of this report). Because of these design features, staff believes that the proposed project is consistent with this policy. F. The City shall develop and maintain suitable and adequate standards for landscaping, sign control, site and building design, parking and undergrounding of utilities and other development standards to insure that the beauty and charm of existing residential neighborhoods is maintained, that commercial and office projects are aesthetically pleasing and compatible with surrounding land uses and that the appearance of and activities conducted within, industrial developments are also compatible with surrounding land uses and consistent with the public health, safety and welfare. Approximately 4.2 acres or 29 percent of the 14.6 -acre site area will be landscaped to soften and mitigate the proposed development. The KCN Planned Community text also contains detailed standards for landscaping, parking, signs, and other project elements. These requirements will ensure that the proposed project is consistent with this policy. K. The land use designations and building intensity standards in this Element reflect limits on John Wayne Airport imposed by the Airport Settlement Agreement and the provisions of that Agreement have become an integral part of the land use and planning process of the City of Newport Beach. The City should take all steps necessary to preserve and protect the Agreement, as well as assist in the selection of a second commercial airport which, in conjunction with John Wayne Airport, could serve a majority of the County's short and medium haul demand. The proposed project will not impact the Airport Settlement Agreement nor the operations of John Wayne Airport, as there is a daily cap on the number of commercial flights from the airport. Additionally, the Federal Aviation Administration has determined that the proposed ten -story building will not pose a threat to air navigation. Therefore, Policy K is not applicable to the proposed project. Kell Office Site B June 26, 2001 Page 7 2. KCN PLANNED COMMUNITY TEXT Increase in Net Floor Area In addition to the above General Plan Amendment, the PC text must be amended to increase the amount of office square footage allocated to Office Site B. Currently, 963,849 net square feet of office development is permitted within Office Site B. Approval of the PC text amendment would bring the total amount of professional and business office use in Office Site B to: 963,849 + 237,500 = 1,201,349 net square feet. In addition to the PC's allocated office use, there are separate unused allocations for 5,000 sq.ft. of restaurant space and 10,000 sq.ft. of retail/service space in Office Site B. The PC text provides that these 15,000 square feet, if not used, will automatically revert to office use. Therefore, the proposal includes this "reverted" restaurant - retail space within the 237,500 square feet of new office use. No changes are proposed to the permitted uses in the KCN PC text. The proposed amendments relate exclusively to the maximum square footage allowed in Office Site B and related standards for building coverage and landscape coverage. Amended pages of the PC text are included as Exhibit ZA -1 to the draft zoning amendment ordinance. Parking Space Requirements The existing Parking Pool "sliding" standard in Part III, Section I -B of the PC text applies to Office Site B: • For the first 125,000 square feet, parking shall be provided at one space per 250 square feet of net floor area. • For the next 300,000 square feet, parking shall be provided at one space per 300 square feet of net floor area. • For any additional floor area, parking shall be provided at one space per 350 square feet of net floor area. The above standards yield the following parking requirements for Office Site B: REQUIRED PARKING IN OFFICE SITE B AFTER AMENDMENT Net Floor Area Parking Ratio Required Spaces 125,000 square feet 1 space /250 square feet 500 300,000 square feet 1 space /300 square feet 1,000 776,349 square feet 1 space /350 square feet 2,219 1,201,349 square feet 3,719 Koll Office Site B June 26, 2001 Page 8 The required number of spaces will he provided in the parking facilities shown on the conceptual site plan (page 4 of this staff report): PARKING PROVIDED PER CONCEPTUAL SITE PLAN Parking Facility No. of Spaces Surface Parking 1,735 Existing Parking Structure to Remain (in separate portion of Office Site B) 284 New 2 -Level Parking Structure 500 New 6 -Level Parking Structure 1,200 Total Spaces Provided 3,719 Parkine Structure Design The following provision has been added to the PC text amendment (see pp. 2 -3 of Exhibit ZA -1) in order to mitigate the impacts of the two new parking structures to be built in Office Site B: "c. Parking structures within commercial and office sites shall incorporate the following design features in order to soften their visual impacts: The sides of parking structures open to public view shall be textured and colored or faced with brick or other material consistent with the structure's associated buildings. Exposed, uncolored concrete sides shall be avoided. • Linear planters and/or trellises with shrubs and cascading vines shall be provided along the outside of parking levels visible from public roadways. For the two -level parking structure in Office Site B nearest the intersection of MacArthur boulevard and Jamboree Road, trees within planters and/or trellis structures with trailing vines shall be provided within the interior of the top parking level. Also, the finish grade of the top level of this parking structure shall substantially match and follow the pre- existing surface grade and shall not extend more than two feet above the pre- existing surface grade at any point. • In Office Site B, in order to ensure implementation of the preceding design features, landscape plans for both parking structures in that Site shall be submitted by the developer to the Planning Commission for review and approval prior to the issuance of any building permits. These plans shall conform to the preceding design requirements." The "two feet above pre- existing surface grade" standard for the top deck of the parking structure has been added since the June 7 Planning Cormnission meeting in order to reduce uncertainty and ensure that the Planning Commission review called for above does not create a conflict with the development agreement (described later in this report) via the imposition of design requirements Koll Office Site B June 26, 2001 Page 9 which materially increase development costs. This numerical standard was suggested by the project architect, who also indicated that the applicant had expressed acceptance of the standard. Sign Standards No changes are proposed to the existing sign standards. Building identifications signs may contain no more than 1'/2 square feet of sign area for every 1 foot of lineal building frontage, up to a maximum of 200 square feet. Such signs shall be limited to a single entity and may be placed on a maximum of two facades. No sign designs have been included with the conceptual site plans submitted by the applicant. 3. LANDSCAPING Landscaping in the 14.6 -acre portion where the new office tower is proposed, as derived from the conceptual site plan, would be approximately 4.2 acres or 29 percent of the total project site. 4. ENVIRONMENTAL IMPACT REPORT The public review period for the Draft Environmental Impact Report (DEIR) ran from May 24 to July 10, 2000. At the end of the public review period, the comments received on the DEIR were evaluated and written responses prepared. Both the DEIR and the Responses to Comments have been distributed to the City Council. Together, they constitute the Final Environmental Impact Report (FEIR). The FEIR is available for public review at the Planning Department and the City Library. 5. EIR COMMENTS AND RESPONSES Comments Submitted During Review Period Ten letters were received from public agencies regarding the Draft EIR by the end of the public review period. Responses to each of the comments in those letters have been prepared and are included with the Final EIR. The agencies that commented on the Draft EIR include: A. Irvine Ranch Water District B. Southern California Association of Governments C. Newport Beach Environmental Quality Affairs Citizens Advisory Committee D. California Department of Transportation E. Airport Land Use Commission F. California Regional Water Quality Control Board G. City of Irvine H. County of Orange Planning & Development Services Department I. University of California, Irvine J. California Department of Conservation Kell Office Site B June 26, 2001 Page 10 All of the comments from the above agencies and the responses to these comments are contained in Exhibit EIR -2 to the attached EIR resolution accompanying this report. New EOAC Comments The City's Environmental Quality Affairs Citizens Advisory Committee (EQAC) formed a subcommittee to review the EIR. EQAC's comments and the responses to those comments are contained in the EIR Responses to Comments, distributed separately. EQAC subsequently submitted additional comments on the above - described responses to comments. Although CEQA does not require further responses to new comments made on earlier responses to comments, it should be noted that many of the concerns raised by these new comments relate to the present project's relationship to the Conexant project. However, it is now doubtful that the Conexant project will proceed. Also, issues reiterated by the new comments regarding cumulative traffic impacts will be addressed in detail in the new General Plan update recently initiated by the City Council. The Planning Commission received additional comments from EQAC regarding the adequacy of mitigation measure 4.4 -1 requiring the preparation of an interim parking relocation plan. Preparation of the plan is deferred to the building permit stage and EQAC believes that this is inconsistent with CEQA which requires identification of a feasible mitigation measure at the time of approval. Staff believes that identification of a precise parking relocation plan at this time would not be meaningful, because a plan prepared today would rely upon available parking in the area and parking demand which is likely to change between now and project construction. Staff believes that the mitigation measure as drafted is adequate as it requires, as a condition of approval, the preparation of a precise plan when sufficient information is available regarding parking lot availability and actual parking needs. 6. TRAFFIC ISSUES Short Range (TPO) Traffic Analysis The Draft Environmental Impact Report (DEIR) contains a Traffic Impact Analysis prepared by WPA Traffic Engineering per the requirements of the Orange County Congestion Management Program and the Newport Beach Traffic Phasing Ordinance (TPO). The City's Traffic Phasing Ordinance requires special analysis and mitigation of traffic impacts if project - generated traffic is greater than one percent of the combined total of existing traffic, projected regional traffic growth, and traffic generated by "committed" projects (i.e. approved projects requiring no further discretionary review) on any approach to any of the study intersections during any morning and/or evening peak period. The City's traffic standard is for intersections to operate at no greater than 90 percent of intersection capacity, i.e. level of service D. However, the TPO traffic analysis determined that, after project completion, traffic generated by the project would contribute to the short-range degradation of the Koff Office Site B June 26, 2001 Page 11 MacArthur Boulevard/Jamboree Road intersection during the a.m. peak hour. The intersection is forecast to operate at an unacceptable level of service (i.e. 1.05 ICU or 105 percent of intersection capacity, which is Level of Service F) with the implementation of the proposed project and buildout of other approved projects by 2003. The TPO guidelines state that any intersection operating at an unacceptable level of service with an increase of 0.01 or more requires mitigation. Therefore, this cumulative impact is considered to be significant, necessitating the implementation of mitigation measures. In order to mitigate these short-range impacts to the intersection, the EIR has identified the following needed improvements: • Add a second northbound left -turn lane • Add a second southbound left -tum lane • Add a northbound right -turn lane The City already planned for the above improvements prior to the present project. Alternative preliminary design concepts have been prepared and construction is planned for 2002 -2003. For these improvements, the applicant will be required to pay the project's fair share, i.e. $70,000, as determined per the City's Traffic Phasing Ordinance and as memorialized in the attached development agreement (pp. 13 -14). It should be noted that the MacArthur Boulevard/Jamboree Road intersection does not now meet the City's traffic standard. The present a.m. peak hour ICU is .93, or 93 percent of intersection capacity. Lone Ranee Traffic Analysis The EIR's traffic analysis determined that the project would also contribute to significant long - range, i.e. year 2020 impacts at five intersections: • MacArthur Boulevard/Jamboree Road (p.m. peak hour) • Irvine Avenue/Mesa Drive (p.m. peak hour) • Jamboree Road/Bristol Street North (a.m. and p.m. peak hours) • Jamboree Road/Campus Drive (p.m. peak hour) • Jamboree Road/I -405 NB Ramps (a.m. peak hour) The identified impacts at year 2020 and associated mitigation measures are as follows: 1. MacArthur Boulevard/Jamboree Road The long range analysis shows that traffic generated by the proposed project will contribute to the long -range degradation of the MacArthur Boulevard/Jamboree Road intersection during the p.m. peak hour, which is forecast to operate at 95 percent of capacity at year 2020. This degradation would occur even after the short-range lane addition improvements identified in the preceding section. Kull Office Site B June 26, 2001 Page 12 The EIR identified intersection improvements to mitigate the above long -range impact, including a possible grade separation at the intersection or an additional westbound through lane on Jamboree. Per the development agreement (p.14), the developer will contribute $8.00 per square foot of approved additional entitlement (the additional entitlement being the 250,000 square foot increase in maximum floor area), or $2 million, in order to help fund such long range improvements and those improvements needed at other intersections impacted by the project. The EIR correctly identified the traffic impact at this intersection, as well as potentially feasible measures to mitigate that impact. At the time the EIR was prepared, it was believed that the above - described MacArthur /Jamboree improvements were feasible and would mitigate the project impacts below a level of significance. However, from further study since that time, staff now believes that it is uncertain whether these potential improvements are feasible or whether they will adequately mitigate the long - range traffic impacts at this intersection. Engineering studies are required to confirm the feasibility of the above improvements. However, funds will not be available to do those studies for four -to -five years. Therefore, in the context of the present project review, staff is not in a position to recommend these improvement concepts as a valid mitigation measure. If the City Council agrees with this assessment, the impact to the MacArthur /Jamboree intersection will be deemed significant and unavoidable. Therefore, the impact has been incorporated into the draft statement of overriding considerations. 2. Irvine Avenue/Mesa Drive Traffic generated by the proposed project will contribute to the long -range degradation of the Irvine Avenue/Mesa Drive intersection during the p.m. peak hour, which is forecast to operate at 105 percent of capacity with the implementation of the proposed project and buildout of other projects. To mitigate this impact, the applicant shall contribute the project's fair share, as determined by the City, to implement the following improvements: X Add a third northbound through lane. X Add a third southbound through lane. X Add a southbound right turn lane. 3. Jamboree Road/Bristol Street North Traffic generated by the proposed project will contribute to the long -range degradation of the Jamboree Road/Bristol Street North intersection, which is forecast to operate at 103 percent of capacity in the morning and 104 percent of capacity in the afternoon with the implementation of the proposed project and buildout of other projects. However, this impact is predicated on the construction of the JR -5 ramp between Jamboree Road and the 73 freeway (conceived as part of the San Joaquin Hills Tollway Design/Build Kull Office Site B June 26, 2001 Page 13 studies). That ramp is conceptual and is not provided for in the City's General Plan or the County's Master Plan of Arterial Highways. Therefore, since the ramp has no official status and no funding has been identified, its construction is speculative at this time. As a result, the EIR and traffic study incorrectly forecast that the proposed project will significantly impact this intersection. The EIR and traffic study do show that the intersection will operate at acceptable levels of service in the long range with the proposed project without the JR -5 ramp. Thus, no significant impact will occur and no mitigation measures are required. (If the ramp ever becomes a planned project, a separate environmental review of its potential impacts will be required.) 4. Jamboree Road/Campus Drive Traffic generated by the proposed project will contribute to the long -range degradation of the intersection during the p.m. peak hour, which is forecast to operate at 99 percent of capacity with the implementation of the proposed project and buildout of other projects. The cities of Newport Beach and Irvine are presently evaluating improvement alternatives for this intersection. The present Koll project will provide funding for direct improvements to the intersection and/or the payment of traffic mitigation fees. Such fees will be available for the mitigation of impacts when a detailed improvement design is identified. However, since no design has yet been identified, this impact is considered significant and unavoidable. 5. Jamboree Road/I -405 Northbound Freeway Ramps Traffic generated by the proposed project will contribute to the long -range degradation of the Jamboree Road/I -405 NB Ramps in the City of Irvine during the a.m. peak hour, which is forecast to operate at 103 percent of capacity with the implementation of the proposed project and buildout of other projects. To mitigate this impact, the applicant shall contribute the project's fair share, as determined by the City of Irvine, to implement the 2020 model geometric improvements to the above ramp intersections. As described above, implementation of mitigation measures identified in the EIR will reduce the significant project - related traffic impacts at all of the above intersections except Jamboree Road/Campus Drive and MacArthur Boulevard/Jamboree Road. It is staff s opinion that these intersection impacts are significant and unavoidable. They are therefore addressed in the draft Statement of Overriding Considerations, described below. 7. DEVELOPMENT AGREEMENT In the recent past, large -scale projects which involve General Plan or zoning amendments have been accompanied by development agreements negotiated between the City and the developer. These agreements have provided for enhanced public benefits to justify the higher entitlement level being granted and/or to offset the consequences of project implementation. In return, the developer Koll Office Site B June 26,2001 Page 14 was given a level of certainty that the project could proceed. In view of the above considerations, a draft development agreement has been prepared for the present amendments. The agreement was developed by the Airport Area Development Committee appointed by the City Council in June 2000, and drafted by the City Attorney. The applicant has reviewed and agreed to its provisions. The draft agreement is included as Exhibit DA -1 to the attached development agreement ordinance. The following are some of the significant benefits of the development agreement to both the City and the developer: BENEFITS TO THE CITY Prior to issuance of any building permit for the project, payment to the City of a traffic mitigation fee of $8.00 per gross square foot of additional entitlement, to fund long range traffic improvements to intersections and roadways impacted by the project. The proceeds of this fee are intended to help design and construct improvements to the circulation system that will mitigate the impacts of this development and future development the City may allow in the Airport area as a result of planning studies. The amount of this fee is somewhat arbitrary, in that future development levels and circulation system improvements are not known at this time. Conexant had agreed to pay a fee of $10.00 per gross square foot, but only if and when the City approved a circulation system improvement program. There was no provision for the fee to increase over time, and agreement had not been reached on the applicability of the fee to Conexant development that might occur prior to approval of the improvement program. Koll has agreed to pay the City $8.00 per square foot of additional entitlement prior to issuance of a building permit, regardless of the City's progress on a circulation system improvement program. This amount was derived as the present value of $10.00 received five years in the future, when we might have expected to receive the fee from Conexant. Koll also agreed to an annual increase in the mitigation fee of $.50 if a building permit is not issued within a year of project approval. 2. Within 60 days of the effective date of the Agreement, payment of $0.45 per gross square foot of additional entitlement, to help fund a planning study for the airport area as part of the General Plan update effort. This fee is based on the City's cost estimate for a specific plan and traffic study for the Airport area, and is the same amount as was included in the Conexam draft development agreement. Airport area planning as included in the City's capital budget in 1999 -2000 and 2000 -2001, with a total cost estimate of $500,000. This project is not included in the proposed budget for 2001 -2002, because it has been incorporated in the General Plan update. 3. Within 10 days of grading or building permit issuance, payment of afire suppression impact fee of $60,000 to contribute to site acquisition, construction, and/or equipping and staffing of a new fire station to serve the area. The City's estimate of the cost of constructing and equipping the new fire station is $2,000,000. This station is needed whether or not there is Kull Office Site B June 26, 2001 Page 15 new development in the area, due to closure of the Orange County Fire Authority station, and the committee working on the development agreement did not think it was appropriate to ask new development to bear the full cost. Although Conexant had originally agreed to a fee of $500,000, they withdrew that offer prior to the last Planning Commission hearing, and the issue was not resolved. 4. Payment of Fair Share Traffic fees in the amount of $235,570 per the Municipal Code. 5. Payment of $70,000 to help fund construction of improvements to the MacArthur /Jamboree intersection per the Traffic Phasing Ordinance. ASSURANCES TO THE DEVELOPER A vested right to develop the property, at a time deemed appropriate by the developer, under the General Plan and zoning amendments described in this report, without future reduction in level of intensity. 2. An approved development plan, unaffected by future changes in the City's development standards. 3. No additional dedications or reservations of land beyond those provided for in the project approvals, conditions, or development plan. 4. No future increases in impact fees, conditions, mitigation measures, or exactions. 5. Provision of storm drain capacity by the City to the exterior boundaries of the site. 8. STATEMENT OF OVERRIDING CONSIDERATIONS Per the California Environmental Quality Act (CEQA), if the project is approved, a Statement of Overriding Considerations (SOC) must be adopted. The SOC states the reasons for approval in spite of environmental impacts which are significant and unavoidable. The following impacts have been so identified: Traffic: Traffic generated by the proposed project will contribute to the long -range degradation of the MacArthur Boulevard/Jamboree Road intersection during the p.m. peak hour, which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E). Traffic generated by the proposed project will contribute to the long -range degradation of the Jamboree Road/Campus Drive intersection during the p.m. peak hour, which is forecast to operate at an unacceptable level of service (i.e., 0.99 ICU/LOS E). Kull Office Site B June 26, 2001 Page 16 Air Quality: • Project implementation will result in short-term construction emissions resulting from the use of construction equipment. Project - related emissions of oxides of nitrogen (NOx) will exceed the significance threshold established by the SCAQMD. • Project implementation will result in long -term pollutant emissions resulting from mobile and stationary sources. Project - related emissions of reactive organic gas ROG) and oxides of nitrogen (NOx) will exceed the significance thresholds established by the SCAQMD. Exhibit EIR 4 identifies a number of overriding considerations which offset the above impacts. Some of these considerations include: 1. The Project will pay several mitigation fees not required of other projects, as identified under "Development Agreement" on the preceding page. These include, among others, $2 million for traffic mitigation, $112,500 for a planning study for the airport area, and $60,000 to help construct and equip the new fire station to serve the area. The above payments are in addition to other fees required by City ordinance. 2. Project implementation will result in a net annual recurring revenue surplus of approximately $52,000, based on the fiscal impact analysis prepared for the project. As a result, the project will pay for itself and will not require City funds or resources to provide needed public facilities and services. 3. The proposed project will help to achieve several goals and policies articulated in the Newport Beach General Plan, such as Policy "A ": The City shall provide for sufficient diversity of land uses so that schools, employment, recreation areas, public facilities, churches and neighborhood shopping centers are in close proximity to each resident of the community. 9. FISCAL ANALYSIS A fiscal impact analysis was prepared for the project per Council Policy F -17. The analysis, distributed to the City Council under separate cover, is available for public inspection at the City Planning Department. The report's significant findings include: • The project would generate $133,500 /year in recurring revenues vs. $51,300 for the existing entitlement on the site: i.e. 5,000 sq.ft. of restaurant and 10,000 sq.ft. of retail use. • The project would result in $81,700 /year of recurring costs to the City, vs. $23,000 for the existing entitlement. • The project's net recurring surplus would therefore be $52,000 /year vs. $28,400 for the existing entitlement. Koll Office Site B June 26, 2001 Page 17 10. AIRPORT LAND USE COMMISSION REVIEW On July 27, 2000, the Airport Land Use Commission reviewed the project, including the planned ten -story office building, and found it consistent with ALUC's Airport Environs Land Use Plan. MEASURES ANALYSIS (GREENLIGHT) Statistical Division L4 has a current General Plan limit of 7,824,303 square feet. There is no General Plan peak hour trip limit. The project will add 235,000 square feet of non - residential intensity, with 375 a.m. peak hour trips and 285 p.m. peak hour trips. Therefore, two of the three thresholds to require a vote pursuant to Measure S are exceeded. (This information is not to be considered in the decision to approve or deny the project.) PLANNING COMMISSION RECOMMENDATION On June 7, the Planning Commission held a public hearing on the applications and the development agreement and forwarded them to the City Council with a recommendation of approval. The resolutions detailing the Planning Commission recommendations are included as Attachment 1. Submitted by: SHARON Z. WOOD Assistant City Manager Prepared by: LARRY N. LAWRENCE Project Manager JW c� `Y� �' Z. L. Attachments: larming Commission Resolution Nos. 1530, 1531 & 1532 2. Excerpts from Planning Commission minutes: June 7, 2001, September 7, 2000 and August 3, 2000. 3. Draft Traffic Study Resolution. 4. Draft Resolution Certifying Final Environmental Impact Report as Complete, with Exhibits "EIR -1 ": Draft Environmental Impact Report No. 158 *, "EIR -2 ": Responses to Comments on Draft EIR *, "EIR -3 ": Statement of Findings, "EIR4": Statement of Overriding Considerations, "EIR -5 ": Mitigation Monitoring and Reporting Program, and "EIR -6 ": Errata Corrections to the Draft EIR. 5. Draft Ordinance for Approval of Development Agreement, with Exhibit "DA -1 ": Development Agreement. 6. Dmft GPA Resolution, with Exhibit "GP -1 ": Revisions to Land Use Element Text. 7. Draft Zoning Amendment Ordinance, with Exhibit "ZA -1 ": Koll Center Newport Planned Community Text Amendment. 8. Fiscal Impact Analysis.* 9. Resolution for project denial * Distributed separately due to bulk on June 13, 2001. Available for public review at the City's Planning Department. Koll Office Site B June 26, 2001 Page 18 ATTACHMENT 1: PLANNING COMMISSION RESOLUTIONS 15309 15319 AND 1532 1l RESOLUTION NO. 1530 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING THAT THE CITY COUNCIL APPROVE TRAFFIC STUDY NO. 119 REGARDING THE EXPANSION OF OFFICE SITE B IN KOLL CENTER NEWPORT. WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, a traffic study, entitled OjTice Site B — Koll Center Newport Planned Community (WPA Traffic Engineering, Inc., March 2000), was prepared for the project in compliance with Chapter 15.40 of the Municipal Code (Traffic Phasing Ordinance) and incorporated into the Environmental Impact Report for the project (SCH #99091120); and WHEREAS, the traffic study indicated that the project will increase traffic on nine primary intersections by one percent (I %) or more during Peak Hour periods one year after the completion of the project; and WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the Traffic Phasing Ordinance, the traffic study determined that eight of the preceding nine primary intersections will operate at satisfactory levels of service as defined by the Traffic Phasing Ordinance; and WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the Traffic Phasing Ordinance, the traffic study determined that one primary intersection, MacArthur /Jamboree, presently operates at an unsatisfactory level of service during the a.m. peak hour and that the project will further impact the intersection unless mitigation measures are �I implemented. The traffic study identified the following mitigation measures, in the form of intersection improvements, the costs of which are to be shared by the project and other projects impacting the same intersection via mandatory conditions of approval: addition of a second northbound left turn lane, a second southbound left turn lane and a northbound right turn lane; and WHEREAS, the above - described improvements will reduce the identified short-range traffic impacts from the project to a less- than- significant level; and WHEREAS, based on the weight of the evidence in the administrative record, including the traffic study, the Planning Commission finds: a. Construction of the project will be completed within 60 months of project approval; and b. With planned intersection improvements, contributed to by the project, the project will neither cause nor make worse an unsatisfactory level of traffic service at any impacted primary intersection. WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held public hearings, at which time the proposed General Plan Amendment and Zoning Amendment were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the Planning Commission at the public hearing. NOW THEREFORE BE IT RESOLVED, that the Planning Commission of the City of Newport Beach does hereby recommend that the City Council of the City of Newport Beach approve Traffic Study 119 based on the weight of the evidence in the administrative record, including the traffic study. ADOPTED this 7`h day of June, 2001, by the following vote, to wit: AYES: NOES: ABSENT 2 FEW RVId Edward Selich, Chairman Steven Kiser, Secretary J RESOLUTION NO. 1531 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING THAT THE CITY COUNCIL CERTIFY ENVIRONMENTAL IMPACT REPORT NO. 158 REGARDING THE EXPANSION OF OFFICE SITE B IN KOLL CENTER NEWPORT (STATE CLEARINGHOUSE NO. 99091120). WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, in accordance with CEQA requirements, a Notice of Preparation (NOP) of a Draft EIR was filed with the State Clearinghouse, which assigned State Clearinghouse Number 99091120;and WHEREAS, the NOP and an Initial Study were distributed to all responsible and trustee agencies and other interested parties for a 30 -day public review period commencing on September 20, 1999 and ending on October 22, 1999; and WHEREAS, in accordance with CEQA requirements, a Notice of Completion (NOC) of the Draft EIR was filed with the State Clearinghouse; and WHEREAS, the Draft EIR was distributed to agencies, interested organizations, and individuals by the City. The distribution list is available at the City of Newport Beach Planning Department; and WHEREAS, a 45 -day public review period for the Draft EIR was established pursuant to State law, which commenced on May 23, 2000 and ended on July 10, 2000; and �I WHEREAS, all comments received during the public review period for the Draft EIR were responded to in the Response to Comments document dated August 2000, distributed separately due to bulk and hereby designated by reference as Exhibit EIR -2 of this Resolution as if fully set forth herein. All comments and responses were considered by the Planning Commission during its review of the project and the Environmental Impact Report; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held public hearings at which time the proposed amendments were considered. Notices of time, place and purpose of the public hearings were duly given and testimony was presented to and considered by the Planning Commission at the hearings. WHEREAS, the EIR identifies potential significant impacts to the environment and certain mitigation measures designed to reduce or avoid these impacts. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Newport Beach does hereby find that Environmental Impact Report No. 158, designated by reference as Exhibit EIR -1 of this Resolution, for the expansion of Office Site B In Koll Center Newport (State Clearinghouse No. 99091120) has been prepared in compliance with the California Environmental Quality Act and the CEQA Guidelines. In addition, the Planning Commission finds that the EIR adequately analyzes project - related impacts, identifies feasible mitigation measures and discusses project altematives. The Planning Commission hereby recommends that the City Council adopt the necessary of Statement of Findings, Statement of Overriding Considerations, and Mitigation Monitoring Program per the Califomia Environmental Quality Act and certify Environmental Impact Report No. 158. ADOPTED this 7'h day of June 2001, by the following vote, to wit: AYES: NOES: I•\MUM 2 M M Edward Selich, Chairman Steven Kiser, Secretary �(D RESOLUTION NO. 1532 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL APPROVAL OF GENERAL PLAN AND ZONING AMENDMENTS AND A DEVELOPMENT AGREEMENT TO INCREASE THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [GPA 97 -3(B), ZONING AMENDMENT 905, AND DA NO. 161 WHEREAS, pursuant to Section 65300 of the California Government Code, the City of Newport Beach has adopted a comprehensive, long -term General Plan for the physical development of the City; and WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, consistent with state law and the Newport Beach Municipal Code, a draft Development Agreement has been prepared in conjunction with the above - described amendments in order to provide for mitigation of traffic and other impacts of the project and to give the developer assurances that development under the proposed Amendments can proceed; and WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with the California Environmental Quality Act (CEQA) to address the environmental impacts of the subject amendments, which EIR was reviewed by the Planning Commission and, by separate resolution, forwarded to the City Council with a recommendation for certification as complete; and �1 WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held public hearings, at which time the proposed Amendments and Development Agreement were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the Planning Commission at the public hearing; and NOW THEREFORE BE IT RESOLVED, that the Planning Commission of the City of Newport Beach forwards the proposed Amendments and Development Agreement to the City Council with the following findings and recommendations: 1. General Plan Amendment. The Planning Comrission finds as follows with regard to GPA 97 -3(B): 1. The project consists of the intensification of office development on a project site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. Since the project site is located in proximity to residential areas, the additional employment opportunities resulting from construction of a new 250,000 square -foot office tower on the site would contribute to a more desirable jobs- housing balance in the area. Therefore, the project is consistent with Policy A of the General Plan Land Use Element. 2. The intent of Policy B of the Land Use Element is to establish limits on land use intensity in order to insure that the City's circulation system operates at an acceptable level of service. Provisions to implement this policy, such as the Traffic Phasing Ordinance and development limits, have been incorporated into the Municipal Code. The proposed project is subject to these provisions and has been reviewed under them in the EIR. The EIR traffic study indicates that the proposed project will generate a significant increase in the number of vehicle trips through major intersections, including MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, where no feasible mitigation measures have yet been identified. However, the project will provide for both direct intersection improvements and the payment of traffic mitigation fees. Such fees will be available for the mitigation of 2 impacts at the above intersections when feasible improvements are identified. Therefore, the project is consistent with Policy B. 3. The site of the new office tower is set back substantially from both MacArthur Boulevard and Jamboree Road in order to mitigate visual impacts from public streets. One of the new parking structures will be located close to the intersection of MacArthur and Jamboree. However, this two -level structure will be depressed partially below grade and the perimeter of the structure will be heavily landscaped in order to soften public views. Additionally, the existing two -level parking structure just north of the existing twin ten -story office towers will be replaced with a new six -level structure located 200 feet further back from Jamboree and 50 feet further back from MacArthur than the existing structure. Per design standards added to the PC text, both new parking structures will be textured and landscaped to soften their visual impacts. Therefore, the project is consistent with Policy D of the Land Use Element. 4. The PC District Plan, i.e. the KCN Planned Community text, contains extensive landscaping standards for different building heights. The PC text also contains detailed standards for parking, signs and other development standards. Therefore, the project is consistent with Policy F of the Land Use Element. 5. The amendment will retain compatibility between land uses in that it will allow intensification of office development on a site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. In light of the preceding findings, the Planning Commission recommends that the City Council approve GPA 97 -3(B), consisting of the increase in gross building square footage allowable in Office Site B as specified in Exhibit "GP -1 ", attached hereto. 2. Zoning Amendment. The Planning Commission finds as follows with regard to Amendment 905: 3 �t a. The amendment is consistent with the General Plan in that it provides for an increase in square footage commensurate with that allowed by the accompanying General Plan Amendment. b. The internal consistency of the Planned Community text will be retained in that all development square footages and open space acreages have been adjusted to retain appropriate development and open space percentages. In light of the preceding findings, the Planning Commission recommends that the City Council approve Amendment 905, consisting of the amendments to the Koll Center Newport Planned Community Development Standards specified in Exhibit "ZA -1 ", attached hereto, subject to the mitigation measures identified in the Environmental Impact Report and listed in the EIR's Mitigation Monitoring Reporting Program (MMRP) being made conditions of approval of the project, as stipulated in Exhibit "ZA -1 ". 3. Development Agreement. The Planning Commission finds as follows with regard to Development Agreement No. 16: a. The Agreement will provide for payments by the developer to the City to: (1) mitigate traffic impacts of the project, (2) help fund preparation of a comprehensive land use and circulation plan for the Airport Area, and (3) help fund site acquisition and/or construction, equipping, and staffing of a new fire station to serve the project and surrounding areas. b. The adoption of the Development Agreement will not preclude the City from imposing conditions or requirements to mitigate significant impacts of the project, provided that the measures are not inconsistent with the Development Agreement and do not render the project infeasible. C. The Development Agreement will give the developer assurances that development under the proposed Amendments can proceed. d. The Development Agreement is in conformance with the Newport Beach General Plan, as proposed by accompanying General Plan Amendment No. 97 -3(B). 4 a� M EW In light of the preceding findings, the Planning Commission recommends that the City Council approve Development Agreement No. 16, as set forth in Exhibit "DA- 1 ", attached hereto. ADOPTED this 7`h day of June, 2001 by the following vote, to wit: Edward Selich, Chairman Steven Kiser, Secretary AYES: NOES: ABSENT: ATTACHMENT 2: EXCERPTS FROM PLANNING COMMISSION MINUTES - JUNE 79 2001, SEPTEMBER 99 20009 AND AUGUST 3, 2000 City of Newport Beach Planning Commission Minutes �,. June 7, 2001 27. The Planning Commission may add to or modify conditions of approval to this Use Permit or recommend to the City Council the revocation of this Use Permit upon a determination that the operation which is the subject of this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 28. This Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. 29. A sign shall be installed within the Texas Deck over the door to the bow deck that reads, "Emergency Doors Only, Doors to Remain Closed During Regular Business Hours." 30. Access to the third level bow deck shall be restricted during the use of the Texas Deck. A theater style rope shall be placed at the southern end of Texas Deck between the safety railing and the exterior wall of the Texas Deck. A sign on the rope that faces north shall be installed that reads, "No Access." In no event shall the ropes restrict fire safety or exiting requirements as determined by the Fire Department. 31. This Use Permit shall be reviewed by the Planning Commission by January 30, 2002 regarding the use of the entire third level of the Pride bf.Newport and the effectiveness of the operational restrictions and conditions of approval. SUBJECT: Koll Office Site B GPA and PC Amendment MacArthur Boulevard /Jamboree Road (Continued from 4 -5 -01) • General Plan Amendment No. 97 -3 (B) • Amendment No. 905 • DRAT � • Env ron mental Impact Report No. 158 • Development Agreement No. 16 Review of a General Plan Amendment and Planned Community Amendment to allow an additional 250,000 gross square feet of office use within Office Site B of the Koll Center Newport (KCN) Planned Community. The amendments will provide for the construction of a ten -story office tower. 20 INDEX Item No. 3 GPA 97 -3(B) A No. 905 TS No. 119 EIR No. 158 DA No. 16 Recommended for approval to City Council J� J Between the hours of Between the hours of 7:00 a.m. and 10:00 p.m. 10:00 p.m. and 7:00 a.m. Measured at the property line of 'Commercially zoned property: 65 dBA 60 dBA Measured at the property line of Residentially zoned property: 60 dBA 50 dBA 27. The Planning Commission may add to or modify conditions of approval to this Use Permit or recommend to the City Council the revocation of this Use Permit upon a determination that the operation which is the subject of this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 28. This Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. 29. A sign shall be installed within the Texas Deck over the door to the bow deck that reads, "Emergency Doors Only, Doors to Remain Closed During Regular Business Hours." 30. Access to the third level bow deck shall be restricted during the use of the Texas Deck. A theater style rope shall be placed at the southern end of Texas Deck between the safety railing and the exterior wall of the Texas Deck. A sign on the rope that faces north shall be installed that reads, "No Access." In no event shall the ropes restrict fire safety or exiting requirements as determined by the Fire Department. 31. This Use Permit shall be reviewed by the Planning Commission by January 30, 2002 regarding the use of the entire third level of the Pride bf.Newport and the effectiveness of the operational restrictions and conditions of approval. SUBJECT: Koll Office Site B GPA and PC Amendment MacArthur Boulevard /Jamboree Road (Continued from 4 -5 -01) • General Plan Amendment No. 97 -3 (B) • Amendment No. 905 • DRAT � • Env ron mental Impact Report No. 158 • Development Agreement No. 16 Review of a General Plan Amendment and Planned Community Amendment to allow an additional 250,000 gross square feet of office use within Office Site B of the Koll Center Newport (KCN) Planned Community. The amendments will provide for the construction of a ten -story office tower. 20 INDEX Item No. 3 GPA 97 -3(B) A No. 905 TS No. 119 EIR No. 158 DA No. 16 Recommended for approval to City Council J� J City of Newport Beach Planning Commission Minutes June 7, 2001 Chairperson Selich noted that the applicant had requested a continuance to negotiate a development agreement with the City, which has been going on since September 2000. We have had a number of hearings and study sessions on this project and have thoroughly reviewed the Environmental Impact Report and other related documents. We are picking up where we left off about a year ago with the applicant now having a Development Agreement before us. Mr. Larry Lawrence, consultant for the City, gave a brief summary on the Development Agreement and Statement of Overriding Considerations. The Development Agreement is attached to the staff report and provides certain benefits to the City to mitigate the impacts of the project. These requirements could not be imposed on the project absent such an Agreement. An example of the benefits include • The payment by the developer to the City of traffic mitigation fee of $8 per square foot of additional entitlement. (2 million dollars to fund long - range traffic improvements to intersections and roadways impacted by the project). In return for that, the developer gains a vested right to develop the property under the General Plan and Zoning Amendments without future reduction of intensity and with no future increases in project fees or land dedication requirements. The Environmental Impact Report identifies certain significant unavoidable impacts in air quality and traffic at intersections at MacArthur Boulevard /Jamboree Road and Jamboree /Campus Drive. These are cumulative impacts that are increased by the project that are significant and unavoidable. If the project is approved, a draft statement of Overriding Considerations has been prepared and attached to the staff report. The statement identifies certain benefits of the project, which can be deemed to override those unavoidable impacts. Per State law, this statement must be included as part of any approval of the project. Because of the significant project benefits, staff has prepared a draft Commission resolution recommending approval of the project. Because of impacts, staff has also prepared a resolution recommending denial. Commissioner Kranzley, referring to page 9 of the staff report, asked about the grade separation and the significant costs. Mr. Edmonston answered that there were two potential mitigation measures identified. The grade separation, which staff had a preliminary design performed and rough estimates in the 15 to 20 million - dollar range, was the project that was considered infeasible due to costs. The second alternate mitigation that was identified was adding a fourth southbound lane on Jamboree from East or North of the MacArthur intersection continuing south over the freeway and ending at Bristol Street south. The fourth lane would be added and continue south on Jamboree over the 73 Freeway dropping at Bristol South. We have applied for funds from OCTA to do more detailed 21 INDEX 71 City of Newport Beach Planning Commission Minutes June 7, 2001 preliminary engineering and environmental planning. Those funds would not be received until the fiscal year 2004 -2005. With the pending General Plan update we will analyze that before that time, but currently this is the schedule. Ms. Temple added that she had received a query on how the approval of this project could potentially impact the processing of the Conexant project with its accompanying EIR and Traffic Study. The approval of a significant project of this nature would affect the potential future processing of Conexant because the environmental setting will have changed because of the approval. Additionally, the age of the analysis in the documents has gotten to the point where updating and bringing them up to whatever time frame the project starts to move would be required. Staff believes it is likely that the EIR would need to be re- drafted, not totally, but probably the traffic study itself would need to be updated to current data and certainly a new cumulative impact analysis would have to be done for that project, which would include this project as a reasonably foreseeable future project. That would then require a recirculation of the EIR and a new review period. Getting this project out in front of potential consideration of Conexant will change the situation for their processing. Public comment was opened. Tim Strader, 3801 Inlet Isle, partner of the Koll Center, the owner of this particular property. One other thing has happened since September of last year and that is the passage of the Greenlight Initiative and the adoption of Greenlight Guidelines by the City Council. We have attempted through the Development Agreement to respond to the issues raised by this Initiative to provide additional fees to the City in the amount of 2 million dollars plus $112,000 for a planning study in the airport area and another $60,000 for a fire station in the airport area. In addition to the fees that were originally contemplated by the City, our fees will be in excess of 3.8 million dollars to assist the City in ameliorating whatever problems exist. The other point I would make is the traffic at the airport is a regional issue that involves other cities and will involve the necessity of the City of Newport Beach taking a leading role to identify the solutions. Again, this 2 million dollars will give the City this opportunity. We believe this project will be a solution to the traffic issues at the airport, because if the project is not approved, the City would not get the 2 million dollars that it can use towards a solution. He then referred to a three - dimensional model for review by the Planning Commission and noted that the architect, Mr. Pat Allen was present to answer any questions. He stated that he has reviewed the staff report and the Development Agreement and is in agreement with them. Barry Eaton, 727 Belis Street spoke as the Chairman of the Koll sub - committee of EQAC. You have a copy of our comments in writing. I noted that we have consistently participated in the environmental process for this project commenting on the NOP and EIR and responses to our comments. A couple of new comments we would like to make on the recent Development 22 INDEX '� t City of Newport Beach Planning Commission Minutes June 7, 2001 Agreement are: • Reversal of order of Conexant and Koll Center - the burden now falls on the Conexant project to look at those cumulative impacts that were to have been addressed by Koll Center. • The Koll Development Agreement becomes the precedent setting agreement. The traffic fee set and agreed to by the City specifies $8 a square foot instead of $10 as set by the Conexant project. There is no public record why that changed. • The EIR for Koll stated that if the fire station on the airport closed, that would be a significant impact. That station has closed. The City has opened its own fire station at Santa Ana Heights and yet the City's position with regard to Conexant was that their contribution ought to be $500,000. That has been reduced to $60,000 for Koll, which even taking into account the difference in the size of the projects is still a 76% reduction. We think this ought to be established in the record why that happened. The EIR did note a temporary but significant impact, which was the dislocation of the existing parking when the construction is under way. That can be up to 700 parking spaces. The Mitigation provided stated it would provide an interim parking plan and we do not think that meets the requirements of CEQA. The Commission ought to have some say on how this problem is to be solved. Chairperson Selich, noting that he had worked on the Development Agreement committee, answered that the $10 a square foot for Conexant was a staged fee over time in the future. It was never resolved as to what it was going to be, they were looking at 60 months and we were looking at 24 months to pay that fee. The $8 a foot was arrived at by net present value of the far end of the Conexant timing; we for exceed in net present dollars with what we are getting from Koll. It is a more advantageous amount of money for us because it is a one -time payment fee. In terms of the fire station fee, that was still somewhat a moving target in the negotiations. I don't think we ever finally resolved from the negotiating committee's standpoint, the final fee for Conexant. Commissioner Tucker, noting that he also had worked on the Development Agreement committee, added that on the fire fee it wasn't that Koll was paying too little; it was that Conexant had offered a lot more as part of its incentive. The Koll number is probably closer. On the development fee it was a duty of Koll to pay it all, while under the agreement with Conexant it was predicated upon the City adopting a program by the airport that had an actual fee amount; in order to adopt the program we had to figure out what the improvements were going to be and do it within a time frame. We wanted it to be a five -year time frame; Conexant wanted a three -year time frame. We felt it could not be done within three years and whether we could get it done at all was in question. Therefore, the $10 fee may never have been paid. The Koll arrangement was for less, but when they pull a building permit, whether or not we ever did adopt a program, the money would be due and 23 INDEX City of Newport Beach Planning Commission Minutes June 7, 2001 INDEX the City would have it for future purposes. I was personally strongly in favor of cash now, rather than cash later. The real issue is what Koll is offering to pay is a fair amount and what Conexant was offering to pay was further incentive. Public comment was closed. Commissioner Tucker noted that during the meeting of September 7th, 2000 in the minutes he had asked about getting more specificity in the project documents concerning the design of the parking structure at Jamboree /MacArthur. The response to his comment from Mr. Lawrence then was, 'That we were still at a non - project specific level and this had to do with some wording in the PC text. The plans you see are conceptual; we have added provisions requiring mitigation of the structures. We could probably add a sentence that would say that the parking structure would have to substantially follow the existing surface grade that is out there now.' I see the PC text includes this in the fourth bullet. Mr. Lawrence added that there is an added sentence that states that new parking structures in that Site shall be submitted by the developer to the Planning Commission for discretionary review and approval. Commissioner Tucker indicated that satisfied his concern at the earlier hearing. He then noted that we went through this project in detail. We did not find a basis at that time for a State of Overriding Considerations for a couple of traffic impacts. The applicant has come back and negotiated a Development Agreement and is offering to put up a substantial amount of money to address these issues. I feel at this point that the applicant has carried the burden to attract my vote. I have never had a problem with the project; it was just that the project needed to help remedy any of its impacts. They have done that so I will make a motion. Motion was made by Commissioner Tucker that the Planning Commission adopt: Resolution No. 1530 recommending City Council approval of Traffic Study No. 119, and Resolution No. 1531 recommending City Council certification of Environmental Impact Report No. 158; Resolution No. 1532, recommending City Council approval of General Plan Amendment 97 -3(B), Zoning Amendment 905, and Development Agreement No. 16. PC text page 3, delete the word, 'discretionary'. Commissioner Kranzley commended both Chairperson Selich and Commissioner Tucker on the work they did to get the Development Agreement done. It was significant and important to the City of Newport Beach. Chairperson Selich noted that in the Mitigation Measures we are requiring the developer to make some significant pro -rata contributions to traffic Oz,I City of Newport Beach Planning Commission Minutes June 7, 2001 improvements to the City of Irvine. Has the City of Irvine ever required one of their developers to make improvements on streets they are impacting in Newport Beach? Ms. Temple answered that when the City of Irvine approved the Bonita Canyon Planned Community project, they did contribute to the improvement at Jamboree /Bison Road intersection. It was approximately $15,000 to $20,000. Ayes: McDaniel, Kiser, Agajanian, Selich, Kranzley, Tucker Noes: None Absent: Gifford \SUBJECT: Coastal Bluff Development Policy \ (Approved & forwarded to City Council from 04 -05 -01 Planning Commission Meeting) (Referred back to Planning Commission for further review and revision from 04 -24 -01 City Council Meeting) Amendment No. 908 Consideration of several options to implement coastal bluff development regulations and procedures with the intent to implement the policies of the General Plan and Local Coastal Program Land Use Plan. Ms. Temple noted that this staff report is presented as a discussion document with no suggested action at this time. Staff is looking for guidance from the Planning Commission whether or how to proceed with this item. Chairperson Selich stated that the Planning Commission recommended a zoning amendment to the City Council. The City Council did not feel comfortable moving ahead with that amendment. They felt that the houses under consideration were not enough of a threat to move this through quickly without going back and carefully determining some criteria and they referred it back to the Planning Commission for additional discussion and study. This is not a public hearing on the Zoning Amendment; it is a Planning.Commission discussion on the criteria that staff has presented for us on various ways to analyze this. We are not going to be taking any action on this tonight. I would -say that my feeling on this after reading the staff report is that it is an issue that we Have pointed out to the City Council that we have ourselves a conflict between the General Plan and the Zoning Ordinance. What comes first, and how do we get this resolved? We can do it one of two ways. We can form a subcommittee of the Planning Commission to deal with this and do further analysis. The other way to deal with it is to incorporate it into the General Plan study that we are doing right.now. We have a major effort underway and it would be my preference to deal with it through the General Plan and the amendment to the Coastal Plan and try to get this policy and criteria clarified through that process. There would probably be more discussion than if we just did it through a Planning Commission 25 INDEX Item No. 4 Amendment No. 908 Referred to General Plan Update Committee for study L16 City of Newport Beach Planning Commission Minutes September 7, 2000 SUBJECT: Koll Office Site R GPA and PC Amendment • General PIJn Amendment 97 -3(B), • Zoning Amendment 905, • Traffic Study No. 1 19, and • EIR No. 158. Review of a General Plan Amendment and Planned Community Amendment to allow an additional 250,000 gross square feet of office use within Office Site B of the Koll Center Newport (KCN) Planned Community, providing for future construction of a ten -story office tower. Assistant City Manager, Sharon Wood reported that in addition to the environmental information with the staff report, the one new piece of information since the last hearing is an addition to the PC text to address the Planning Commission's concern about the visual impacts from the parking structure. Additionally, there is a response to comments on the EIR and in particular the traffic impacts. She then introduced the following representatives of the City on this issue: • Larry Lawrence, the staff planner on the project; • Keeton Kreitzer, the preparer of the Environmental Impact Report • Wes Pringle, the traffic analysis • Terry Austin from Austin Faust Associates, which is the firm that did the traffic modeling Continuing, she noted a memorandum that was distributed from Robert Hawkins, the Chairman of the Environmental Quality Affairs Committee. She noted that the usual practice would have been for EQAC to review the responses to comments before this hearing and make their recommendations on the EIR to the Planning Commission. However, due to the pace this project was moving, staff failed to send those responses to members of the EQAC sub - committee, so they have not had a chance to look at them. EQAC is requesting that this item be continued to allow time for review. Terry Austin, Austin Faust Associates, noted that he has been involved with the City's traffic modeling for ten years. He noted the following information to help evaluate the traffic data in this EIR; traffic modeling and things that can happen that are counter intuitive. • Modeling - historically has been a prediction of the average daily trips on different roadway links. Over time we have refined those procedures until today we are asked to look twenty years ahead and predict how many vehicles are turning left at a given intersection during the p.m. peak hour. We are asked to do this with a plus or minus 10 vehicles an hour, recognizing that if we counted that some intersection yesterday and today there is probably a difference of 100 vehicles an hour. Drivers do not always do the same things on consecutive days making it hard to bring that level of precision into the traffic modeling. What tends to happen as we refine our procedures, is that INDEX Item No. 1 GPA 97 -3(8) A 905 TS No. 119 EIR No. 158 Continued to 10/19/2000 I t 1. City of Newport Beach Planning Commission Minutes September 7, 2000 the demand for data and accuracR,y always seems to be one step ahead. Counter intuitive - we all have ou: own perception while driving out there of what is out there and why it is happening. When you get traffic data from a traffic model that is counter intuitive, our natural reaction is to say that the model must be all messed up, no good and is useless because it is not doing the right thing. There are cases when traffic models do things that are counter intuitive. A first aspect is where a traffic model is making a realistic simulation of the real world, but it is not immediately intuitively obvious to us what is happening. The second is when the model is doing an imperfect simulation of the real world. There are certain limitations on what the science of the traffic modeling can do and it will sometimes come up with imperfect simulations of what drivers are doing out there. Travel pattern changes over time - a traffic model looks twenty (20) years into the future. Typically, we look at a change in land use and how the world of traffic evolves over that twenty years either in relation to that project being there or not being there. What happens over that period of time, people change their traffic patterns in relation to that project versus not that project. Looking in a traffic report at the difference in traffic between with that project or without, why is there a reduction of traffic on that roadway even though you have a project versus a no project? The answer is that it is not a reduction, traffic has increased on all the roadways differently if we have the project versus not having the project. So you get large increases on some roadways, smaller increase on others but when you compare the two twenty years from now, there will be a difference. Sometimes that difference is negative, it is not a reduction; it is just gone there on a different path over time. The model is trying to say, 'here is the world that we see at twenty years from now with this land use or without this land use'. The more difficult issue to deal with is the imperfect simulation of the real world. We are trying to predict twenty years ahead and tell you how many vehicles are turning left at that intersection. We are doing this through mathematics and predicting human behavior. One of the things we know that people do when they drive is they're sensitive to the amount of traffic on a roadway. For example, the route you take from A to B at 5 a.m. on a Sunday morning may not be the some route that you take at 5 p.m. on a Friday. You understand when you might want to avoid an intersection. We try to get the model to do exactly the some thing. What we work with in the model is as we put traffic on a roadway, we try to make it sensitive to other traffic and it will move to a parallel road if it has to. This is where we get an example that is applicable to something like Koll /Conexant. Let's say we have the traffic model run with a certain project and we look at a certain roadway and we build the traffic up and it reaches a trigger point that says the parallel route is a little faster. I am going to shift some traffic over there, maybe 2 -3 %, perhaps 50-60 vehicles. It makes sense; this is what drivers would do. Now we do the other traffic model run, perhaps have a smaller project, which INDEX y: City of Newport Beach Planning Commission Minutes September 7, 2000 INDEX doesn't quite reach that trigger point. It doesn't shift those SO vehicles over to the other route. What is the result? This r.;n with a higher project actually has slightly less traffic on that roadway. On the parallel roadway, the difference is exaggerated. The higher project has much higher traffic because we have done that shift. The traffic model is doing its best to simulate the real world but it is not being able to do it perfectly. You will find that one of the counter intuitive things that will happen is related to these very small incremental changes in the routing that the traffic model will make versus what you might make as drivers. This is the most difficult part of traffic modeling to understand and deal with. We can do manual intervention, but we are reluctant to do that. It might make sense, but we are concerned that once we start that process, we no longer have a clean traffic model. We tend to round numbers up to tens when we do peak hour traffic volumes. The reason is that we try to discourage people from calculating ICU's to three decimal places when it would not be appropriate. It is a reminder that this is statistical data that should be used in a responsible manner. I would like to assure you that the model you have in the City is state of the art. We are in the forefront of traffic modeling; we keep up with all the latest procedures. The improvements that are yet to come will deal with some of these imperfections. We must recognize that there is a need for some judgement whenever you use traffic modeling data. We have to recognize the limitations and imperfections that it has and make those judgements accordingly. We prefer not to do the manual intervention, your staff understands the modeling. We need to be comfortable with the things that are counter intuitive, rather than playing with the numbers. Over time as we update the traffic model we hope that we can improve on these imperfections. Somehow drivers always seem to be much more clever than our traffic model at finding more devious routes and devious things to do that we are not able to predict. Commissioner Kranzley thanked Mr. Austin for his presentation. Continuing, he noted that this is a period of time where we see an unprecedented increase in public scrutiny of environmental impact reports and concerns with traffic. What I would suggest is, in the future when you or staff sees anomalies that look counter intuitive, that in the staff report or an environmental report, you walk us through it specifically. You look at the model all day long and understand that's what happens. However, if you could spell it out for us, it would help both the Planning Commissioners and the public. Mr. Faust agreed, stating this is an excellent suggestion. Chairperson Selich noted that the staff report makes reference to certain statements of overriding concerns that would have to be made. He asked that those be summarized. Larry Lawrence, City's consultant stated that the EIR identified a number of 4 City of Newport Beach Planning Commission Minutes September 7, 2000 impacts that are significant and ngt considered mitigatable to a level of insignificance. One of those is Traffic at the identified intersections of Jamboree /Campus and Jamboree /MacArthur, because the additional study on the grade- separated improvement did not seem feasible. The other one is air quality because of the cumulative impacts of any major development. We have not developed the statement of overriding considerations in consideration of what the Planning Commission's recommendations will be to the City Council. Mr. Edmonston added that in the Traffic Study the City had a study done to see what it would take to build a grade separation at the intersection of Jamboree /MacArthur. Another issue was an additional lane on Jamboree that would continue over the 73 Freeway and that would require the widening of the existing bridge structure. Neither of these have been identified as specific mitigation measures because it is still early in the review and not formally looked at or adopted by the City Council as part of the General Plan. Commissioner Tucker asked about the problem traffic areas identified as the long -range traffic problems. As I understand it, the long range means the existing traffic plus the project plus the County numbers for 2020 plus our General Plan buildout. Cumulative in some jurisdictions is not defined as nearly that cumulative. Where did our definition come from? Mr. Edmonston answered that in this case the cumulative is based on the General Plan level analysis so it does look at the build out of the City's General Plan. Because we are more developed than the rest of the County, we have traditionally assumed that our build out would occur in about a twenty -year time frame. The data from the County that has been available to date has been based on just a twenty -year projection. Therefore, we are looking at 2020 from the County and full buildout of the existing General Plan plus build out of the proposed project. Where it came from I don't know the exact origins, but it has been that way for a long time. It is a methodology that the previous Councils have used when looking at both major and minor General Plan amendments. It was used under the CIOSA development proposal, and used back in 1988 when the last overall review of the Land Use and Circulation Elements were considered. It has been used consistently quite a while. I don't know of any specific policy that addresses it. Commissioner Tucker noted that in some jurisdictions, the cumulative is the existing traffic, plus project, plus projects that have been proposed. I wonder why our definition is so different. Under the CEQA guidelines it is within the purview of something that could be defined as cumulative, but I was just wondering if the lead agency ever bothered to define what cumulative meant. Continuing, he noted that staff had not prepared a statement of overriding considerations. Under guideline Section 15093B, a statement of overriding considerations, if there is one that is going to be adopted, has to be supported by substantial evidence in the record. Are we going to be hearing that from staff INDEX ,I �J City of Newport Beach Planning Commission Minutes September 7, 2000 or the applicant? Mr. Lawrence answered that it would have to come from staff and we have not given that yet. Chairperson Selich noted that in going through these documents, he had discussions with staff. The way our City has approached the statement of overriding considerations, the Planning Commission approves the resolution with the reference to the statement of overriding concerns, but they are developed between the Planning Commission hearing and the City Council hearing. The Council will adopt them relying on the facts that are presented at the hearing to prepare those. Mrs. Wood answered that was the same procedure followed for the recent consideration for the Dunes Resort Hotel. We relied on facts that were in the staff report, facts brought up at the public hearing, comments that the Planning Commissioners had made and then the statement was prepared in time for the Council meeting. Public comment was opened. Chairperson Selich asked the applicant to address the issue of a Development Agreement, why they do or do not wish to do one as well as to present any evidence to the Commission to support making a finding of overriding consideration on the three items identified in the EIR. Tim Strader, 3801 Inlet Isle, partner in Koll Center Newport, the owner of the property that is the subject of this hearing. We have provided the Commission with information at previous hearings. I am taken aback by the request of the EQAC for a continuance because we have been processing this application since 1997. This has been professionally studied by staff and people who had the opportunity to review the EIR on information specifically applicable to this project. Under CEQA we are involved in a fact - finding process. As a decision - maker, the Commission looks at all the information and comments presented and you weigh them and come up with a decision. I am opposed to a continuance for two weeks because I will be out of the country. I believe the EQAC people can adopt additional comments and send them on to the Council if the Commission decides to make a decision tonight. On the issue of a development agreement, our project is different than the Conexant project. We have used a development agreement when we had major projects that were going to be developed over a period of time. If this was a master plan of vacant land over a five -year period then we would want a development agreement because of all the uncertainties. In this particular case, we are an infill project. It is a single building. If we do get approved, our plan is to immediately have the plans drawn by the architect and go to development because the market demand is out there. From the standpoint of doing a development agreement, it is not something that we ever approach on a single building development project. INDEX • J City of Newport Beach Planning Commission Minutes September 7, 2000 The Conexant project is to go over a period of five years and provide opportunities to house employees as 'heir business grows in the area. Looking at all the information in the EIR and the comments, you will see that our project is doing a lot of mitigation. We are happy to do that mitigation because there are things that can be done to improve the city streets. It has been difficult for us to look at the worse case analysis of the traffic model because we are not necessarily in agreement that the intersection of Campus /Jamboree can not be mitigated. We think it can be with an additional right turn lone on Campus toward the university. It is stated in the university's EIR that before any development occurs, they must go to the City of Irvine and they must mitigate whatever traffic will be generated. I think that some mitigation will occur at that intersection, but again, how do you present that when you are using a traffic model that has information in it that talks about a certain definition of what is cumulative. Over a twenty year period I have seen lots of things happen that were never predicted. This is not an exact science and the traffic model is a tool to be used by the planners to analyze the impacts of the project. We have brought an exhibit because of the concern about what the parking structure at the intersection of Jamboree /MacArthur would look like. (Distributed exhibits) Pat Allen, project architect 1230 Devon Lane referencing the exhibit on the wall noted the current site /parking condition and the proposed site /parking condition at MacArthur Blvd. And Jamboree Road. The exhibit showed the cross section with one level built underground. Mr. Strader noted that they are happy to assist in reducing the visual impact of the parking structures. He then gave a history of the proposed project. He then noted that from the standpoint of the statement of overriding concerns, there is a myth that office buildings do not pay for themselves. A fiscal analysis impact has been prepared by Stanley R. Hoffman, dated August 14th, which states that this project will provide the City $51,878 every year. Additionally, projected one -time fees and charges after build out will amount to $596,750. If we are to have a true balanced City with residential, retail, industrial and office /commercial there has to be a place in the City where you can build an office building. This particular project is on the easterly boundary of the City in the airport area, surrounded by the Cities of Irvine and Costa Mesa and the County. The Irvine Business Complex, a 4,000 -acre piece of property in the City of Irvine, surrounds that particular area. I made a presentation to the City Council at a study session two weeks ago. I pointed out that we are essentially a small part of the regional traffic issues that occur around the airport. The City of Irvine as opposed to the City of Newport Beach uses a level of service E in the Irvine Business Complex. In Newport Beach, we use a level of service D. The difference between those two levels of service is approximately a 10% increase. The intersections during peak hours can carry 10% more traffic if you utilize that level of service. We can not ask you to look at this and change it to level of service E; however, if you did many of these problems might go away. In the City of Irvine there are projects being approved with a level of service E that impact the traffic on the intersections specifically Jamboree /Campus and Jamboree /MacArthur. There is going to be growth in INDEX Q (o City of Newport Beach Planning Commission Minutes September 7, 2000 the County, State and City of Newpor++,Beach. There must be a place for people to locate their businesses and a place where jobs can be brought into the City. I believe that a couple of statements of overriding concerns would be the economic benefits presented by this project, and the balanced plan in the General Plan of Newport Beach to have a place where businesses can locate and jobs can be created in the City. We understand that we have to live with the process as we find it and are prepared to do that. We are prepared to do all the mitigation. Even though we may disagree with some of the assumptions that are utilized in the study, we believe it is a very valuable tool that should be used by the decision -maker and it is for you to make the decision whether it is appropriate to have an office building in the city out in the airport area based on all the facts in the EIR. We have brought a three dimensional model that shows how the parking structures would relate to the new office building. Commissioner Tucker asked about the fiscal impact analysis. He asked how the fiscal benefits of this project would be any different than five 50,000 square foot buildings built elsewhere in the airport area? Mr. Strader answered that the reason this occurs is because this is an infill project. Essentially all the services are being provided by the City, there are no incremental services being provided. The City is providing those services today and will continue to provide them tomorrow. There will not be an additional cost to the City if another building is built there whereas if you build five buildings in another area of the City that was vacant, you would have additional City services that would need to be provided. Commissioner Tucker noted that the five 50,000 square foot buildings would also be in fill buildings. Commissioner Tucker asked the architect to confirm that the visual feel of the project at Jamboree /MacArthur is going to end up being the same throughout the length of the parking structure although this structure covers one place in the profile. People driving along MacArthur who see the meandering landscape and mature trees will continue to see that. Mr. Allen answered that was correct. The profile shown here will occur the whole length of the fall in elevation and parallel the existing parking lot. Commissioner Tucker noted that he does not see defined in the conditions how this two -story structure will look. We have provisions that whatever you can see looks nice, but there is nothing in a condition that says the profile that the applicant has provided is going to be the profile the structure will have. Is that something we can include in a design feature in the PC text? Mr. Lawrence answered that in exhibit ZA -1, which is the actual wording of the PC text amendment we have tried to address design issues to the degree we can at this level. We are still at a non - project specific level; the plans you see are INDEX I City of Newport Beach Planning Commission Minutes September 7, 2000 conceptual. We have added provisions requiring mitigation of the structure. We could probably add an additional Sentence or two that would say that the parking structure nearest Jamboree /MacArthur would have to substantially follow the existing surface grade that is out there now. Commissioner Tucker requested that the staff do so Commissioner Gifford noted that in the staff report the fact that we are talking about a possible grade separation at Jamboree /MacArthur if it turned out to be a mitigation would that be part of your responsibility? Mr. Strader answered that they would be happy to pay their fair share of that mitigation measure. Public comment was closed Chairperson Selich commented that this is a good project and would be a great benefit to the City; however, we have a timing issue. There is planning that needs to be done in the airport area. We know the Land Use and Circulation Element are out of balance out there, there is roughly some 600,000 square feet under the existing General Plan left to be built. There are a number of intersections in the Circulation Element that do not support the square footage in the existing General Plan. Reference has been made that LOS E would solve a lot of problems, that is true it would help, but looking at the Circulation Element many if not all those intersections are actually being projected to run out at LOS F in the long range projection. To me, to approve a General Plan amendment out there right now without having a Circulation Plan, makes this imbalance worse. I could support this project if the applicant was proposing a Development Agreement as we have been discussing with Conexant and that is not the case. Therefore I can not support the project. In addition to looking at the long range impacts there is the TPO problem and there is a lot of property with remaining General Plan entitlement left to develop that is not developed. If we approve this project, we essentially suck up their TPO capacity with this project and so they do not have the ability to use their existing entitlement. Again, this relates back to having more circulation improvements in the area. We are looking at this at a General Plan level, which is really a policy level. It is not something that we have to make findings of fact like we do on Variances and Conditional Use Permits, etc. This is a policy as to what we want to do out there. To me, to allow additional square footage to occur in this area without having something that insures that we are going to have circulation improvements connected to the project, I do not see how we can do it now. If there was a plan developed for that area with circulation improvements on the plan and we had some kind of fee program set up that would be very easy to deal with. We don't have that right now. I would be willing to support the project if we had a development agreement and there was a fee made to the City to take care of circulation improvements in the future to a plan that would be developed. I could support it because I do think it is a good project, but given the way it has been presented, I don't feel that way. This INDEX ui '{ City of Newport Beach Planning Commission Minutes September 7, 2000 INDEX will affect anything in the airport area that anybody brings to us in terms of a General Plan amendment. It ge s to be a value judgement on these amendments. If someone came in with 2500 square feet, you could probably support doing it; 25,000 square feet maybe; 250,000 square feet is pretty tough to support adding that much square footage with the imbalance we have in the circulation system. Looking at it from the environmental impact and traffic specifically we have two intersections that we would have to make statements of overriding concerns on. Again, I can not find to certify the EIR with those statements of overriding concerns unless there was a Development Agreement that had a traffic fee like we are proposing on Conexant associated with it. That would provide the justification for making the statement of overriding concerns, but I don't think that the evidence presented by the applicant or by anybody in the public hearings is substantial enough to make the statement of overriding concerns from an environmental standpoint. The Development Agreement would from the General Plan standpoint as well as the EIR standpoint in being able to collect a fee from this project that would go into a fund for future circulation improvements in this area that would be required and developed as part of a future planning effort. It is a timing issue and we get good projects that come into the City and maybe the state of planning in an area is not ready for the project yet and that is the purpose of a Development Agreement. It allows the developer to move ahead with the project, the City gets certain benefits from the Agreement and is able to go on with the planning and the developer is able to go ahead and do his project. Motion was made by Chairperson Selich to deny the General Plan and Zoning Amendments to increase the maximum allowable building square footage in Office Site B of the Koll center Newport Planned Community. (GPA 97 -3 (B) and Zoning Amendment 905 in accordance with Resolution 1524 as amended on paragraph five to read, 'Whereas, an Environmental Impact Report (EIR) was prepared in accordance with the California Environmental Quality Act (CEQA) to address the environmental impacts of the subject amendment, which EIR was reviewed by the Planning Commission. I am not proposing to take any action on the EIR to approve it, as we do not have to approve an EIR to deny a project. I would make the some finding on the Traffic Study. I did confer with the City Attorney on the procedure for doing this and I was advised that would be the proper way to do it, if we take this action I am proposing. Basically, we would not approve either one of those resolutions and only approve the resolution denying the project. I will open this up to discussion by any Commissioner. Commissioner McDaniel stated his support of the motion. Commissioner Kiser clarified with staff that the applicant stated he would be happy to participate in any fair share fee for grade separation at Jamboree /MacArthur. If there is no Development Agreement, how would that be carried out? E LI i City of Newport Beach Planning Commission Minutes September 7, 2000 INDEX Ms. Wood answered that it could not &e without a Development Agreement. Commissioner Agajanian stated his support of the motion. Commissioner Gifford supported the motion. Commissioner Kranzley supported the motion stating he could not support a statement of overriding consideration. I understand there is an additional $52,000 of annual revenue to the City, but when you take out the entitled fees that the applicant would have to pay if he built out to his entitlement it is really only a difference of about $23,000 a year. Commissioner Tucker noted his support.of the motion. He questioned if this is a type of motion where we could add to deny it without prejudice or is it something that is not legally doable with the General Plan Amendment? The reason I ask that is I agree that there needs to be places in town to put office buildings, better the airport than some other locations. The project might find its way back to us at some point and I don't know if this would make any difference or not in terms of timing. Mr. Strader stated that if there is going to be a denial of the project, he asked for a continuance in order to negotiate some type of a Development Agreement with the City. If that is something that seven members of the Planning Commission tell me is a condition to getting approval then that is something I would like to talk to the City about. We have been here for three years and have spent over $250,000 in getting to this point. I would like an opportunity to negotiate in good faith with the City. Chairman Selich stated he does not have any problem with a continuance for negotiating a development agreement, nor did any other of the Commissioners. Motion was withdrawn. Substitute Motion was made by Commissioner Kranzley to continue this item to October 19, 2000. He also asked for additional information from staff on the MacArthur /Jamboree grade separation. Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley and Tucker Noes: None Absent: None RRR Cowan Duplex (Jay Cowan, applicant) Item No. 2 3030 Breakers Drive Variance No. 1236 ►-- 'ante No. 1236 Modification No. Modif_ 5049 5049 Request to construct a new 6800 square foot duplex, whit the 24- Continued to 11 f'O City of Newport Beach Planning Commission Minutes August 3, 2000 SUBJECT: Koll Office Site 5 GPA and PC Amendment • General Plain Amendment 97 -3(B) • Zoning Amendment 905 • Traffic Study No. 119 • EIR No. 158 • Planned Community Amendment To allow an additional 250,000 gross square feet of office use within Office Site B of the Koll Center Newport (KCN) Planned Community. The amendments will provide for the construction of a ten -story office tower. Public comment opened. Timothy L. Strader, 3801 Inlet Isle, Corona del Mar spoke as a partner in the Koll Center Newport No. A, which is the owner of the residual land at Koll Center Newport at Jamboree and MacArthur. He stated that they filed this general plan amendment in 1997 and have now reached the point where the environmental impact report has been circulated, comments received and staff is in the process of putting together a response to those comments. We were here for a study session a month ago, and as a result present to you tonight a brochure that answers some of the questions that were raised at that meeting. Pat Allen of Langdon and Wilson referred to the exhibit as Mr. Strader continued with his presentation. Mr. Strader noted the following: • Proposing a ten story office building adjacent to the two existing ten story office buildings formally known as Security Pacific Plaza. • The two existing ten story office buildings are now owned and occupied by Conexant. • At the rear of these two buildings is a two -story parking structure. • The proposal is to tear down that parking structure and install a two -story structure at the intersection of Jamboree and MacArthur. Referencing the last sheet in the brochure, he noted the cross section depiction of what that two -story structure would look like driving by the project. ➢ Landscaped berm along MacArthur. Parking structure will be indented into the ground so that the view from MacArthur will be similar to the existing view. • Plan to demolish the existing two -story structure at the rear of the building and commence construction of a six -story parking structure that will be adjacent to the existing Conexant buildings. • Conexant is attempting to create a campus like setting for their entire project. By moving the structure back from Jamboree, the vista is opened from the existing Conexant property to their two buildings. The parking structure will be moved back to allow for a pedestrian connection directly to the building. The access off Jamboree will come into the property and INDEX Item No. 3 GPA 97 -3 (B) A 905 TS No. 119 EIR No. 158 Continued to 09/07/2000 City of Newport Beach Planning Commission Minutes August 3, 2000 will allow access to the left into pe parking structure or the right into the existing parking lots at Conexant.- Currently, the two -story structure blocks any direct access between the Conexant property and the property they purchased (two ten -story buildings). The existing FAR at Koll Center Newport is .5. Many of the projects constructed in the last few years have a 1 FAR. It has always been contemplated that as the market matured in the area, we would convert from free parking to pay parking and then structured parking. Structured parking on a pay as you go basis is acceptable in the market place today. Commissioner Tucker noted a proposed condition that states, "the parking structures located along MacArthur Boulevard and Jamboree Road shall be designed so that parked cars are not visible from the roadway, etc:' Mr. Strader answered that this is a new condition. Mr. Pat Allen, 1230 Devon Lane, architect of the project added that the berm would be similar to the one along Circuit City and Nordstrom. By berm height and adjusting the depth of the garage; creating a steeper slope on the backside to bring in natural light and ventilation, will result in a garage that is not exposed to the automobiles on MacArthur. Commissioner Tucker stated that if it is going to be similar to what it is today, you could see lots of cars from MacArthur. It surprises me that it says you would not be able to see any cars. It doesn't have to be screened anymore than it is today, in my opinion. How high are you raising the berm and what will happen to the mature trees that are there today? Will it look like it does today? As for as the intensification of the development, where you sited the additional building and then taken and tucked all the parking behind the buildings and pared back that long linear parking structure, I think that is a good feature. If the Jamboree /MacArthur looks similar to what it does today, there is a fair amount of intensification in that project, but it doesn't really look like it. Perhaps it will even look more open. Mr. Allen explained about the parking today that you do see cars that are partially screened by trees in the parking lot. Mr. Strader stated that this is the first time that they have seen this condition regarding the parking. He asked that it be changed to say, be designed to minimize the views of parked cars from the roadway. We would be willing to accept a condition like that. I don't think that you can have a condition that no cars are visible from the roadway, it is not possible. Larry Lawrence, consultant to the City on this project stated that this condition was derived from both the EIR mitigation measure and the condition that was INDEX City of Newport Beach Planning Commission Minutes August 3, 2000 INDEX placed in the draft of the ConexantPC amendment. This condition is for the commercial section; I used the some-1erminology. Commissioner Tucker noted that this is a different condition, Koll Center is a surface lot as opposed to a structure. This is supposedly going to be designed so that you can not tell it is a parking structure as the second level is underground. Mr. Lawrence commented that Mr. Strader's amendment is reasonable. We don't have to exactly match the provisions for Conexant. Commissioner Tucker stated that we don't have all the information and Koll Center will be back in a couple of weeks. I would like to see it designed in a fashion that is as near as possible to what exists today so that it has that feeling of openness as opposed to intensification. Mr. Strader referencing a three dimensional model noted the two -story structure alignments with the berms in existence today. Commissioner Tucker noted that this model would not be in our archives. I am looking for something to show what is there today versus what you are planning on doing. I don't have a problem with the proposal; we need a set of plans to help us understand that. With the intensification of some 200,000+ square feet, you effectively have left the general feel of the area alone. Mr. Strader noted his agreement and will have an exhibit to depict the proposal. Commissioner Tucker referencing page 8 of the KCN Planned Community text says no changes are proposed to the permitted uses in the KCN PC text. Referring to the staff report, the proposed amendments relate exclusively to the maximum square footage allowed in Office Site B and related standards ... it should be noted that the site plan included with this report is conceptual and provided for informational purposes only. The KCN PC text does not contain any provisions for Planning Commission review of site, architectural, landscape or other specific development plans. My question is, how is it that the plans submitted to us that we are looking at, how do we see that what we think is going to happen will happen? Is there no review? Ms. Temple answered that there are two ways staff would administer the issuance of a building permit pursuant to this approval. One would be making sure that there are sufficient provisions within the PC text should it need to be added in order to address any specific design related issues that the Commission may find necessary. The second is that the EIR and all of the impacts and mitigation measures provided therein are based on the conceptual site plan to the extent that it is necessary to understand those details in order to define mitigation. If a project was modified to an extent M r� City of Newport Beach Planning Commission Minutes August 3, 2000 where any of those findings, lack of significance or new significance was at least possible or mitigation measurei not able to be complied with or deemed adequate, then we would not be able to find that the project was substantially similar to that approved through its environmental process. We would have to come back for some modifications. The only other way to get a hard site planning type review on a project of this nature would be to actually require some subsequent review of the final plans before permits are issued. The next item on the agenda, a process similar to that could be required in the PC text and then the project would come back with the final details. You can't conditionally zone, so you would have to make additional provisions in the PC text specific to this site that staff would then review the plans for compliance with. Commissioner Tucker stated that he understands wanting the consistency between the two projects, but really the parking structures are completely different with the Conexant one sitting out close to the street and the Koll Center big parking structure is kind of buried behind everything. The little parking structure is the one that is right where we want to make sure that the appearance remains pretty much as it is today. Public comment was closed. Motion was made by Commissioner Gifford to continue this item to September 7, 2000. Ayes: McDaniel, Agajanion, Selich, Gifford, Tucker Noes: None Absent: Kiser, Kranzley Development Plans Regulations Citywide A resolution of intent to a d the Zoning Code to require development plans for large commercial and rest tial projects. Chairperson Selich asked about the pr s; in the past haven't we had some direction from Council before we do a Reso ' n of Intention? Ms. Temple answered that the Code allows either City Council or the Planning Commission to adopt a Resolution of Intentio However, if the Planning Commission is uncomfortable doing this and wou e the City Council to consider the Resolution of Intention, we certainly can do t a 7il»I Item No. 4 Development Regulations Discussion Item Plan ATTACHMENT 3: TRAFFIC STUDY RESOLUTION �, l RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING TRAFFIC STUDY NO. 119 REGARDING THE EXPANSION OF OFFICE SITE B IN KOLL CENTER NEWPORT. WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel I of PMB 114/22 -24 and Parcels I, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Zoning Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, a traffic study, entitled Office Site B — Koll Center Newport Planned Community (WPA Traffic Engineering, Inc., March 2000), was prepared for the project in compliance with Chapter 15.40 of the Municipal Code (Traffic Phasing Ordinance) and incorporated into the Environmental Impact Report for the project (SCH #99091120); and WHEREAS, the traffic study indicated that the project will increase traffic on nine primary intersections by one percent (1 %) or more during Peak Hour periods one year after the completion of the project; and WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the Traffic Phasing Ordinance, the traffic study determined that eight of the preceding nine primary intersections will operate at satisfactory levels of service as defined by the Traffic Phasing Ordinance; and WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the Traffic Phasing Ordinance, the traffic study determined that one primary intersection, MacArthur /Jamboree, presently operates at an unsatisfactory level of service during the a.m. peak hour and that the project will further impact the intersection unless mitigation measures are 1 Ir implemented. The traffic study identified the following mitigation measures, in the form of intersection improvements, the costs of which are to be shared by the project and other projects impacting the same intersection via mandatory conditions of approval: addition of a second northbound left turn lane, a second southbound left turn lane and a northbound right turn lane; and WHEREAS, the above - described improvements will reduce the identified short-range traffic impacts from the project to a less - than- significant level; and WHEREAS, based on the weight of the evidence in the administrative record, including the traffic study, the City Council finds: 1. Construction of the project will be completed within 60 months of project approval; and 2. With planned intersection improvements, contributed to by the project, the project will neither cause nor make worse an unsatisfactory level of traffic service at any impacted primary intersection. WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, at which time the proposed General Plan Amendment and Zoning Amendment were considered and forwarded to the City Council with a recommendation of approval; and WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the proposed General Plan Amendment and Zoning Amendment were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Newport Beach does hereby approve Traffic Study 119 based on the weight of the evidence in the administrative record, including the traffic study. ADOPTED this 26`x' day of June, 2001, by the following vote, to wit: 2 j cj AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS Iu/. fl a ATTEST: CITY CLERK 51 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CERTIFYING ENVIRONMENTAL IMPACT REPORT NO. 158 REGARDING THE EXPANSION OF OFFICE SITE B IN KOLL CENTER NEWPORT (STATE CLEARINGHOUSE NO. 99091120). WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13-19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, a Development Agreement was prepared to provide enhanced public benefits and the payment of special mitigation fees not required of other projects in order to offset the impacts of the project, in return for the permitted higher level of entitlement; and WHEREAS, in accordance with CEQA requirements, a Notice of Preparation (NOP) of a Draft Environmental Impact Report (DEIR) was filed with the State Clearinghouse, which assigned State Clearinghouse Number 99091120; and WHEREAS, the NOP and an Initial Study were distributed to all responsible and trustee agencies and other interested parties for a 30 -day public review period commencing on September 20, 1999 and ending on October 22, 1999; and WHEREAS, a Draft EIR was prepared for the project, hereby designated by reference as Exhibit "EIR -1" of this Resolution, which identifies potential significant impacts to the environment and certain mitigation measures designed to reduce or avoid these impacts; and WHEREAS, in accordance with CEQA requirements, a Notice of Completion (NOC) of the Draft EIR was filed with the State Clearinghouse; and WHEREAS, the Draft EIR was distributed to agencies, interested organizations, and individuals by the City. The distribution list is available at the City of Newport Beach Planning Department; and WHEREAS, a 45 -day public review period for the Draft EIR was established pursuant to State law, which commenced on May 23, 2000 and ended on July 10, 2000; and WHEREAS, all comments received during the public review period for the Draft EIR were responded to in the "Response to Comments" document dated August 2000, hereby designated by reference as Exhibit "EIR -2" of this Resolution. All comments and responses were considered by the City Council during its review of the project and the Environmental Impact Report; and WHEREAS, pursuant to Section 15091 of the State CEQA Guidelines, a "Statement of Findings" has been prepared, summarizing the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened; and WHEREAS, because the EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened, a "Statement of Overriding Considerations" has been prepared, which balances these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project; and WHEREAS, a "Mitigation Monitoring and Reporting Program" (MMRP), has been prepared to ensure implementation of all mitigation measures identified in the Final EIR, including a listing of all identified mitigation measures, the timing of implementation of each mitigation measure, the method of verification of implementation, and the individual responsible for monitoring compliance; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, at which time the proposed amendments, Development Agreement, and EIR were considered. The Planning Commission then forwarded a recommendation that the EIR be certified as complete; and WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the proposed amendments, Development Agreement, and EIR were considered. A notice of time, place 2 and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. NOW THEREFORE BE IT RESOLVED, that 1. The City Council hereby finds that Environmental Impact Report No. 158 for the expansion of Office Site B In Koll Center Newport (State Clearinghouse No. 99091120) has been prepared in compliance with the California Environmental Quality Act and the CEQA Guidelines. In addition, the City Council finds that the EIR adequately analyzes project - related impacts, identifies feasible mitigation measures, and discusses project alternatives, and that the EIR reflects the City's independent judgment and analysis. Accordingly, the City Council hereby certifies Final Environmental Impact Report No. 158, consisting of the Draft Environmental Impact Report, designated by reference as Exhibit "EIR-l" of this Resolution, and the EIR Responses to Comments, designated by reference as Exhibit "EIR -2" of this Resolution. 2. The City Council hereby adopts the "Statement of Findings ", attached hereto as Exhibit "EIR -3", the Statement of Overriding Considerations ", attached hereto as Exhibit "EIR- 4 ", the Mitigation Monitoring Program, attached hereto as Exhibit "EIR -5 ", and the "Errata Corrections" to the Draft EIR, attached hereto as Exhibit "EIR -6 ". ADOPTED this 26`h day of June, 2001, by the following vote, to wit: 3 (1 J AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK 4 EXHIBIT EIR -1: DRAFT ENVIRONMENTAL IMPACT REPORT [Distributed separately due to bulk. Available for public review at the City's Planning Department] �-1 EXHIBIT EIR -2: RESPONSES TO COMMENTS ON DRAFT EIR [Distributed separately due to bulk. Available for public review at the City's Planning Department] 1 EXHIBIT EIR -3: STATEMENT OF FINDINGS GI STATEMENT OF FINDINGS IN SUPPORT OF THE GENERAL PLAN AMENDMENT AND PLANNED COMMUNITY AMENDMENT KOLL CENTER NEWPORT - OFFICE SITE B AND RELATED ACTIONS SIGNIFICANT ENVIRONMENTAL EFFECTS OF THE PROPOSED PROJECT, FINDINGS WITH RESPECT TO SAID EFFECTS, AND STATEMENT OF FACTS IN SUPPORT THEREOF, ALL WITH RESPECT TO THE PROPOSED GENERAL PLAN AMENDMENT AND THE KOLL CENTER NEWPORT PLANNED COMMUNITY AMENDMENT (OFFICE SITE B) IN THE CITY OF NEWPORT BEACH, CA INTRODUCTION The California Environmental Quality Act ( "CEQA "), Public Resources Code Section 21081 and CEQA Guidelines Section 15091 provide that: (a) No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are: (1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final EIR. (2) Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency. (3) Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR. (b) The findings required by subsection (a) shall be supported by substantial evidence in the record. Section 15092 of the State CEQA Guidelines further stipulates that: (b) A public agency shall not decide to approve or carry out a project for which an EIR was prepared unless either: (1) The project as approved will not have a significant effect on the environment, or (2) The agency has: (A) Eliminated or substantially lessened all significant effects on the environment where feasible as shown in findings under Section 15091, and (B) Determined that any remaining significant effects on the environment found to be unavoidable under Section 15091 are acceptable due to overriding concerns as described in Section 15093. In making the findings required by Section 21081, the public agency must base its findings on substantial evidence in the record. An Environmental Impact Report (EIR) for the project has been prepared and certified as complete by the City of Newport Beach. The EIR identifies certain significant effects which may occur as a result of the Koll Center Newport project alone or on a cumulative basis in conjunction with other past, present, and reasonably foreseeable future projects. The environmental review process for the Koll Center Newport project is summarized below. 1. In accordance with CEQA requirements, a Notice of Preparation (NOP) of a Draft EIR was filed with the State Clearinghouse on September 24, 1999. The State Clearinghouse assigned State Clearinghouse Number 99091120. 2. The NOP and an Initial Study were distributed to all responsible and trustee agencies and other interested parties on September 20, 1999 for a 30 -day public review. The review period ended on October 22, 1999. The Subcommittee of the Environmental Quality Affairs Citizens Advisory Committee (EQAC) for the Koll Center Newport project submitted comments dated October 20, 1999 on the NOP and Initial Study. 3. In accordance with CEQA requirements, a Notice of Completion (NOC) of the Draft EIR was filed with the State Clearinghouse on May 24, 2000. 4. The Draft EIR was distributed to agencies, interested organizations, and individuals by the City. The distribution list is available at the City of Newport Beach, Planning Department. 5. A forty-five (45) day public review period for the Draft EIR was established pursuant to State law, which commenced on May 24, 2000 and ended on July 10, 2000, 6. Comments received during the public review period for the Draft EIR were responded to in a Response to Comments document dated August, 2000. 7. A Final EIR has been prepared for the Koll Center Newport Project. The following components comprise the Final EIR: a. Draft EIR, May 2000; b. Comments received on the Draft EIR and responses to those comments, August 2000; and C. All attachments, incorporations, and references to the documents delineated in items a and b above. The City is the Lead Agency with respect to the project pursuant to State CEQA Guidelines Section 15367. As a Lead Agency, the City is required by CEQA to make findings with respect to each significant effect of the Project. The City has reviewed the EIR. The following sections make detailed findings with respect to the potential effects of the Koll Center Newport project and refer, where appropriate, to the mitigation measures set forth in the Final EIR. The Final EIR and the administrative record concerning the Koll Center Newport project provide additional facts in support of the findings herein. The Final EIR (which includes, among other components, the Draft EIR, and the Response to Comments on the Draft EIR) is hereby incorporated into these Findings in its entirety. Furthermore, the mitigation measures set forth in the Mitigation Monitoring Program are incorporated by reference in these Findings. The Mitigation Monitoring and Reporting Program was developed in compliance with Public Resources Code Section 21061.6 and is contained in a separate document. Without limitation, these incorporation are intended to elaborate on the scope and nature of mitigation measures, the basis for determining the significance of impacts, the comparative analysis of alternatives, and the reasons for approving the Koll Center Newport project in spite of associated significant unavoidable adverse impacts. Final EIR SCH No. 99091120 for General Plan Amendment and Amendment to the Koll Center Planned Community and related discretionary actions, identified significant environmental impacts prior to mitigation that may occur as a result of implementing the project. Thus, in accordance with the provisions of CEQA, the Newport Beach City Council hereby adopts these findings as part of its action to certify Final EIR SCH No. 99091120 and approve the General Plan Amendment and Amendment to the Koll Center Planned Community District Regulations. 11 Findings regarding significant adverse environmental impacts are included below and addressed in more detail in the Statement of Overriding Considerations. II. DESCRIPTION OF THE PROJECT PROPOSED FOR APPROVAL Consistent with the intent of CEQA, the State CEQA Guidelines, and relevant judicial interpretations of CEQA, the "project' addressed in the Final EIR is defined to include the approval of a general plan amendment, amendment to the existing planned community district regulations, and a traffic phasing ordinance study that would allow the development of a 10 -story, 250,000 square feet professional office building; a 1,200 -car, 6 -level parking structure to replace an existing 2 -level parking structure; and a 500 -car, 2 -level parking structure to replace an existing surface parking area. The proposed project is intended to provide for additional professional office space within Office Site B of the Koll Center Newport Planned Community (PC), and to provide for an enhanced professional office campus environment and facilitate connectivity to the existing Conexant facilities to the north. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a development agreement for the proposed project. The development agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items in return for assurances to the developer that development will be able to proceed without future changes to development parameters or City- caused increases in development costs. Although this discretionary action was not identified in the project description contained in the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and /or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the development agreement. The project includes the following elements: General Plan Amendment The General Plan Amendment is proposed to eliminate the restaurant and retail uses currently designated for the subject property and increases in the allowable office use for Office Site B. Planned Community (PC) District Amendment (Zone Change) The amendment to the Koll Center Newport Planned Community District Regulations dated May 5, 1972 (Amended August 10, 1998) is proposed to increase the amount of office space within Office Site B by 250,000 (gross) square feet. Development Agreement The development agreement between the City and the developer provides for the payment of special impact fees related to traffic and public services not required of other projects in return for assurances that the project can proceed. In addition to providing the developer a vested right to develop the property under the provisions of the general plan and zoning amendments approved by the City for a term of twenty-five years, several benefits will accrue to the City, including additional development fees intended to fund long -range traffic improvements, fees to fund a planning study for the airport area, and a fire suppression impact fee that will contribute to site acquisition, construction, and/or equipment and staffing of a new, permanent fire station to serve the area. 3 Traffic Phasing Ordinance Under the City's Traffic Phasing Ordinance (TPO), the project's additional traffic contribution beyond that which is included as a "committed project" must be analyzed and the requirements of the TPO must be satisfied before City action. These activities are under the jurisdiction of the City of Newport Beach as the Lead Agency, including the approval of discretionary planning actions and issuance of permits (e.g., grading permit, building permit, etc.) necessary for project implementation. III. IMPACTS DETERMINED TO BE LESS THAN SIGNIFICANT The following describes impacts of the Koll Center Newport (Office Site B) project found to be less than significant in the preparation of the Initial Study and the Draft EIR. The Initial Study, provided in Appendix A of the Draft EIR, was used to focus the scope of the Draft EIR. INITIAL STUDY Land Use Planning Implementation of the proposed project would not affect agricultural resources or operations. 2. Implementation of the proposed project would not disrupt or divide the physical arrangement of the established community including the land uses and circulation patterns within and adjacent to the project site. Population and Housing Implementation of the proposed project would not displace existing housing, especially affordable housing. Geologic Issues 1. Implementation of the proposed project is not anticipated to expose people on structures to fault rupture during a seismic event. 2. Although implementation of the proposed project has the potential to result in the exposure of people and structures to ground shaking during a seismic event, this exposure is no greater than exposure present in other areas throughout the Southern California region. No significant impact would occur. 3. Implementation of the proposed project is not anticipated to expose people to structures to ground failure due to liquefaction during a seismic event. 4. Implementation of the proposed project would not expose people or structures to seiche, tsunami, or volcanic hazards. 5. The project site and vicinity are not identified as areas with the potential for landslides or mudflows. 6. Implementation of the proposed project would not require significant alteration of the existing topography on the project site. In the event that unstable soil conditions occur on the project site due to previous grading, excavation, or placement of fill materials, these conditions would be reduced by the Citys required submittal of site - specific geotechnical evaluations to address specific design and construction measures for each building site prior to issuance of grading permits. No significant impact related to changes in topography or unstable soil conditions would occur. 4 ,� 3 The project site has not been identified as an area with the potential for subsidence. In addition, withdrawal of groundwater, oil, or other mineral resources would not occur as part of the proposed project. 8. Upon compliance with the City's grading and building permit requirements, no significant impact related to expansive soil conditions would be anticipated to occur. 9. Implementation of the proposed project would not disturb unique geologic or physical features. Water With implementation of the proposed project, the drainage patterns, absorption rates, and the rate and amount of surface runoff would not significantly change relative to the existing conditions. In addition, runoff from the project site would continue to be accommodated by the existing on -site and off -site drainage facilities. 2. Implementation of the proposed project would not increase the exposure of people or property to flood hazards. 3. Development of the additional building areas for the proposed project would not significantly alter the amount of impervious surfaces on the project site and the potential for erosion to result in changes to surface water quality would not significantly increase relative to the existing conditions. The proposed project would replace surface parking lots with buildings and parking structures resulting in a reduction in the amount of exposed surface parking areas that contain oil and other vehicle - related pollutants that degrade surface water quality. The proposed project would not impact surface water quality. 4. Development of the proposed project would not result in changes in the amount of surface water in any natural water body. 5. Implementation of the proposed project would not affect the course or direction of water movements in any natural water body. 6. No groundwater extraction or additions would occur as part of the proposed project. In addition, the proposed project would not result in interception of an aquifer by cuts or excavation during grading or construction. 7. Implementation of the proposed project would not alter the direction or rate of flow of groundwater. 8. Throughout the permitting process for the project site, no regulatory thresholds have been exceeded for groundwater which would require Koll Center Newport to conduct health effect studies. The implementation of the proposed project would not result in the addition of activities to the project site that would exceed these regulatory thresholds. 9. Groundwater use or extraction would not occur as part of the proposed project and no impact on public water supplies would occur. Air Quality Development of the additional building area for the proposed project would not alter air movements, moisture, or temperature, or cause any change in the climate since the proposed structural additions would not be of sufficient size or density to influence meteorology either locally or regionally. Additionally, no operational changes that could cause any change in climate would occur on the project site. �l 2. The emission of significant odors would not be anticipated during construction. The operation of the proposed project would not emit new objectionable odors on the project site and in the vicinity Transportation/Circulation 1. The proposed project would not introduce hazardous design features such as sharp curves or dangerous intersections or provide for the use of incompatible equipment on the project site or adjacent roadways. 2. The proposed project would not result in inadequate emergency access to the project site or affect access to nearby uses. 3. The proposed project is not anticipated to create hazards or barriers for pedestrians and bicyclists utilizing Jamboree Road and Birch Street. 4. Implementation of the proposed project is not anticipated to result in conflicts with adopted policies supporting alternative transportation. 5. No impacts would occur with respect to rail, waterborne, or air traffic. Biological Resources 1. The proposed project would not result in an impact to either plant or animal species. 2. The proposed project would not result in the removal of any locally designated plant or wildlife species. 3. No locally designated natural communities are known to exist on the project site. 4. The project site does not contain open space utilized for wildlife migration or dispersal. Energy and Mineral Resources 1. It is not anticipated that the proposed project would require excessive energy consumption or conflict with adopted energy conservation plans. 2. Although non - renewable resources would be utilized in the construction and operation of the proposed project, these resources would not be used in a wasteful or inefficient manner. 3. Implementation of the proposed project would not result in the loss of the availability of a known mineral resource that would be of future value to the region. Hazards 1. The construction and operation of the proposed project would not result in an increase in the risk of an explosion or the release of a hazardous substance relative to the existing conditions. The proposed project would not result in the creation of any new health hazard or potential new health hazard relative to the existing conditions. In addition, the proposed project would not result in the exposure of people to existing sources of potential health hazards. 2. Construction and operation of the additional building area for the proposed project would not interfere with emergency response or emergency evacuation plans on -site and in the local area. 3. Development on the project site as a result of the proposed project would comply with the applicable fire and safety provisions of the City's Uniform Building Code and would not result in an increased fire hazard. �5 Public Services As there are no residential land uses provided with the proposed project, school services would not be directly impacted. Potential demand for housing and the associated increase for school services would be within regional levels accounted for by regional and local population projections. 2. Implementation of the proposed project would not result in the need for additional maintenance of local roadways. 3. The proposed project would not result in an increased need with respect to governmental services such as libraries. Utilities and Service Systems Any potential expansion of telephone or cable networks required to serve the proposed project would be anticipated to be within the capabilities of the respective service providers. 2. With implementation of the proposed project, runoff from the project site would continue to be accommodated by the existing on -site and off -site stormwater drainage facilities. No impact with respect to a scenic vista or scenic highway would occur. Cultural Resources 1. Although there is a possibility that paleontological resources exist at deep levels, the uncovering of such resources would be remote. Although implementation of the proposed project would not be anticipated to disturb paleontological resources, any potential effect would be reduced by compliance with conditions of approval. 2. Although implementation of the proposed project would not be anticipated to disturb archaeological resources, any potential effect would be reduced by compliance with conditions of approval. 3. The project site does not contain any historic monuments or historic resources. 4. No impact as a result of a physical change which would affect unique ethnic cultural values would occur. 5. There are no existing religious or sacred uses associated with the project site. No impact would occur. Recreation Implementation of the proposed project would not result in an increase in the use of existing neighborhood and regional parks or other recreational facilities such that physical deterioration of existing facilities would occur. In addition, the proposed project would not require the construction or expansion of recreational facilities. No significant impact would occur. 2. Implementation of the proposed project would not result in a significant increase in the demand for City recreation programs. No significant impact would occur. 3. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to recreation facilities and programs. ��O ENVIRONMENTAL IMPACT REPORT Additional analysis of the issues was undertaken and presented in the Draft EIR. Though that analysis, it was determined that potential impacts would be less than significant or potential impacts would be avoided or minimized (i.e., less than significant) through the incorporation of standard conditions of approval (e.g., implementation of UBC requirements, etc.). The standard conditions are identified below, were appropriate. Land Use and Planning 1. No impact due to incompatibility with the existing on -site land uses or surrounding land uses would occur. 2. With approval of the requested General Plan Amendment, implementation of the proposed project would not result in an impact related to consistency with the General Plan designation for the project site. 3. The proposed project is consistent with the applicable goals, policies, and objectives of the General Plan Elements. 4. With approval of the requested Amendment to the Koll Center Newport Planned Community text, implementation of the proposed project would not result in an impact related to the existing development regulations and standards for the project site. 5. The proposed project is compatible with the Urban and Industrial designation for the adjacent area within the City of Irvine and no impact would occur. 6. The proposed project is compatible with the University of California, Irvine (UCI) North Campus Mixed Use designation for the area directly to the east of the project site and no impact would occur. 7. The proposed project is consistent with the general land use policy of the Airport Environs Land Use Plan (AELUP) of the Airport Land Use Commission of Orange County (ALUC) and no impact would occur. 8. The proposed project would be consistent with the applicable policies within the Growth Management Chapter of the Regional Comprehensive Plan and Guide (RCPG) and no impact would occur. 9. The proposed project would be consistent with the applicable policies of the Regional Transportation Plan (RTP) and no impact would occur. 10. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects, would not result in a cumulative impact related to incompatible land uses or inconsistencies with land use plan and regulations. Standard Conditions SC 4.1 -1 Subsequent project approvals shall be reviewed for consistency with applicable General Plan and Zoning documents prior to development approval. SC 4.1 -2 All development shall be reviewed for consistency with applicable provisions of the Building Code prior to issuance of building permits. SC 4.1 -4 All subsequent project approvals shall be subject to the provisions of the California Environmental Quality Act. If changes are made to the project description or new information becomes available indicating that additional impacts could occur, the project may be subject to additional review and mitigation measures. 0 SC 4.1 -5 The applicant shall comply with FAA Federal Aviation Regulations (FAR) Part 77, requiring that the applicant file Form 7460 -1 for all buildings that would penetrate the airport's imaginary surfaces. In addition, any object which rises above the height of the surrounding development and all other structures will be clearly marked or lighted in accordance with FAA requirements. Population Implementation of the proposed project will not result in a significant impact related to the regional and local population. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact related to the regional or local population. Standard Conditions SC 4.2 -1 The applicant shall comply with the applicable provisions of the Newport Beach Growth Management Element to ensure that the project is consistent with the goals and policies of the City that address population, housing and employment. Water Quality Implementation of the proposed project would not result in a significant impact to water quality. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to water quality. Standard Conditions SC 4.3 -1 Prior to issuance of precise grading or building permits, whichever comes first, the applicant shall submit and obtain approval from Manager, Subdivision and Grading, of a Water Quality Management Plan (WQMP) specifically identifying Best Management Practices (BMPs) that will be used on -site to control predictable pollutant runoff. This WQMP shall identify, at a minimum, the routine, structural and non - structural measures specified in the Countywide NPDES Drainage Area Master Plan (DAMP) Appendix which details implementation of BMPs whenever they are applicable to a project, the assignment of long -term maintenance responsibilities (specifying the developer, parcel owner, maintenance association, lessee, etc.); and, shall reference the location(s) or structural BMPs. SC 4.3 -2 Prior to issuance of any grading permits, the applicant shall submit evidence to the Director, Public Works, that the applicant has obtained coverage under the NPDES statewide General Stormwater Permit from the State Water Resources Control Board. Consistent with the Orange County municipal NPDES permit, the proposed project shall include the incorporation of the following structural and non - structural BMPs into the additional development proposed for the site: Structural BMPs The landscape plan for the proposed project will address the requirements of the County Water Conservation Plan and include elements in the irrigation plan to save water and reduce runoff from vegetated areas. Routine inspection of the irrigation system will occur to prevent inadvertent discharge of water through parking lots. The landscape design will include plans with lower water requirements to reduce water use and excess irrigation runoff. 1 Trash containers and dumpsters will be sited to avoid drainage from adjoining roofs or pavements. Trash containers and dumpsters on the project site will be covered to reduce the potential for contamination of storm water runoff. If the area is uncovered, runoff will be required to flow through a water quality inlet prior to discharge into the storm drain system. All catch basins and inlets to storm drains on the project site will be stenciled to alert the public to the destination of pollutants discharged into storm water runoff. Trash racks will be installed and maintained in all inlets on the project site that discharge into the storm drain system. These racks will be designed to remove floatable debris. Water quality inlets (e.g., grease traps) are required in areas where the project would have outdoor storage of oils, solvents, or other materials, such as parking structures, where there would be potential flows from loading docks where solvents or oils are used, or where uncovered trash containers are stored. These inlets will be designed to remove free phase liquid petroleum products, grease, floatable debris, and settleable solids prior to discharge into the storm drain system. Non - Structural BMPs All employees will be provided with materials that document general procedures for the protection of surface water quality. Specific activities that could affect water quality will be restricted on the project site. A list of these activities will be developed, provided to all employees, and posted within common areas. These activities will include, but not be limited to, the repair and cleaning of private automobiles on the project site, discharge of any material into storm drains, and the use of water to flush exposed parking areas or the parking structures. The maintenance of landscaped areas on the project site will be conducted in accordance with the County of Orange Water Conservation Program and Management Guidelines for the Use of Fertilizers and Pesticides. All organic waste generated as a result of maintenance activities (e.g., grass clippings) will be disposed of at an appropriate location and care will be taken to keep material from entering the storm drains. The additional development on the project site will be incorporated into the trash management and litter control program. Normal maintenance procedures will be conducted to empty trash receptacles, remove litter, and clean the trash racks leading to the storm drains. The additional development on the project site will be incorporated into the existing street sweeping program to ensure that all internal roadways, parking lots, and parking structures will be swept on a regular basis. All BMPs will be subject to routine maintenance and training to ensure that all are operational and/or in place. The maintenance procedures will identify responsible parties and schedule inspections to ensure compliance. SC 4.3 -3 Site grading and construction shall comply with the drainage controls imposed by the Citys grading ordinance and all applicable local and State building codes. SC 4.3 -4 The applicant shall provide for weekly vacuum sweeping of all paved parking areas and drive upon completion of construction. 10 9 Air Quailri 1. Implementation of the proposed project would not result in a significant short-term impact to air quality due to construction - related emissions. 2. Implementation of the proposed project would not result in a significant localized air quality impact related to mobile source emissions. 3. The proposed project is consistent with the Air Quality Management Plan (AQMP) policies and no impact would occur. 4. As construction impacts associated with the "worst- case" assumptions related to the buildout of the proposed project would not exceed South Coast Air Quality Management District's (SCAQMD's) significance thresholds, the proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative short-term impact to air quality due to construction - related emissions. Standard Conditions SC 4.5 -1 SCAQMD Rule 403 which requires that "... every reasonable precaution (is taken) to minimize fugitive dust emissions . " from grading operations to control particulate emissions, shall be implemented during the grading and construction phase. SC 4.5 -2 Adherence to SCAQMD Rules 431.1 and 431.2 which require the use of low sulfur fuel for stationary construction equipment. SC 4.5 -3 The project shall comply with Title 24 energy- efficient design regulations as well as the provision of window glazing, wall insulation, and efficient ventilation methods in accordance with Uniform Building Code requirements. SC 4.5 -4 Water site and clean equipment morning and evening to comply with the AQMP Fugitive Dust Measure BCM -06. SC 4.5 -5 Trucks leaving the site shall be washed. SC 4.5 -6 Grading operations shall be suspended during first and second stage smog alerts. SC 4.5 -7 All grading operations shall be suspended when wind speeds (as instantaneous gusts) exceed 25 miles per hour. Tran sportation/Circu lation 1. Implementation of the proposed project would not result in an impact to site access. 2. Implementation of the proposed project would not result in an impact related to parking. 3. The proposed project in conjunction with other past, present, or reasonably foreseeable future projects would not result in a cumulative impact related to access and parking. Standard Conditions SC 4.4 -1 Prior to issuance of certificates of occupancy for the proposed project, the circulation system improvements contained in the Traffic Study shall have been constructed (unless subsequent project approval requires modification thereto). The circulation system improvements shall be subject to the approval of the City Traffic Engineer. 11 a SC 4.4 -2 Prior to issuance of the certificates of occupancy, the applicant shall contribute the projects fair share, as determined by the City, to the Circulation System Improvements for the affected intersections, described in the Traffic Study. SC 4.4 -3 If the applicant wishes to occupy the proposed development prior to the completion of the improvements identified in the Traffic Study, the applicant shall demonstrate to the satisfaction of the Planning Department and Public Works Department that trip generation reduction measures or measures equally effective as approved by the City Traffic Engineer have been implemented. These measures shall remain in effect until the improvements described in the Traffic Study have been completed. Noise 1. Implementation of the proposed project would not result in a significant short-term impact due to construction - related activities. 2. The increase in the noise levels as a result of the proposed project during the Near Term Traffic Conditions would not be perceptible and no significant impact would occur. 3. The increase in the noise levels as a result of the proposed project during the Long Range Traffic Conditions with Koll Center Newport would not be perceptible and no significant impact would occur. 4. The increase in the noise levels as a result of the proposed project during the Long Range Traffic Conditions without Koll Center Newport would not be perceptible and no significant impact would occur. 5. No significant noise increases as a result of the proposed project related to the mechanical equipment pad and central plant operation would be anticipated and no significant impact would occur. 6. No significant noise increases as a result of mechanical equipment for the new buildings associated with the proposed project would be anticipated and no significant impact would occur. 7. The proposed project in conjunction with other past, present, or reasonably foreseeable future projects would not result in a significant cumulative short-term noise impact due to construction activities. 8. The proposed project in conjunction with other past, present, or reasonably foreseeable future projects would not result in a significant cumulative long -term noise impact related to mechanical equipment operation. Standard Conditions SC 4.6 -1 Construction activities shall be limited to 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; construction activities are prohibited on Sunday or any federal holiday. SC 4.6 -2 All construction activities will comply with applicable state and local construction noise regulations. Public Services 1. Implementation of the proposed project would not result in a significant impact to police protection services. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to police protection services. 12 Standard Conditions SC 4.7.1 -1 The proposed site plan will be subject to review by the Newport Beach Police Department. SC 4.7.1-2 The proposed project shall incorporate an internal security system (e.g., security guards, alarms, access limits after hours, etc.) that shall be reviewed by the Planning Department. SC 4.7.1-3 A lighting plan shall be submitted for review by the Police Department to ensure that adequate lighting of pedestrian walkways and parking areas is provided. SC 4.7.2 -1 All infrastructure improvements (i.e., fire hydrants, roadways, turn - arounds, etc.) shall be designed in accordance with City standards as outlined in Design Criteria, Standard Special Provisions and Standard Drawings for Public Works Construction. SC 4.7.2 -2 Prior to the issuance of a building permit, the NBFMD shall review the proposed plans and may require automatic fire sprinkler protection. SC 4.7.2 -3 The proposed project will be constructed to comply with all applicable Uniform Building and Fire Code requirements. SC 4.7.2 -4 The NBFMD shall review and approve fire department/emergency access plans. SC 4.7.2 -5 All structures shall be equipped with fire suppression systems approved by the NBFMD. Depending upon the connection of new structures to the existing buildings, the NBFMD may require fire sprinkler systems for all buildings to be interconnected. SC 4.7.2 -6 All on -site fire protection (i.e., hydrants and fire department connections) shall be approved by the NBFMD and Public Works Department. SC 4.7.2 -8 On -site water mains and fire hydrant locations shall be approved by the NBFMD and Public Works Department. SC 4.7.2 -9 The applicant shall ensure that all tenants are required to disclose to the NBFMD any hazardous or flammable chemicals or substances stored on the site. Further, any such materials shall be stored in accordance with all applicable requirements established by the NBFMD or other regulatory agency. Utilities and Service Systems 1. Implementation of the proposed project will not result in a significant impact to electrical and natural gas service. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a cumulative impact to the provision of electrical and natural gas service. 3. Implementation of the proposed project would not result in a significant impact on water facilities or supply. 4. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to water facilities and supply. 5. Implementation of the proposed project would not result in a significant impact on sewer service. 6. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to the provision of sewer service. 13 S. a Implementation of the proposed project would not result in a significant impact to solid waste disposal services. 8. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to solid waste disposal services. Standard Conditions SC 4.8.1 -1 The proposed project shall be designed to conform to Title 24, Paragraph 6, Division T -20, Chapter 2, Subchapter 4 of the California Administrative Code pertaining to energy conservation requirements. SC 4.8 -1 -2 The proposed project should investigate the use of alternative energy sources (e.g., solar) and, to the maximum extent economically feasible, incorporate the use of said energy sources into the design of the project. SC 4.8.1 -3 The Project Applicant will demonstrate that adequate facilities would be available to serve the proposed project including verification from SCE. SC 4.8.1 -4 The applicant shall provide energy- conserving street and parking lot lighting and minimize decorative or non - functional lighting in a manner acceptable to the Planning Director. SC 4.8.2 -1 The proposed project shall be designed to conform to Title 24, Paragraph 6, Division T -20, Chapter 2, Subchapter 4 of the California Administrative Code pertaining to energy conservation requirements. SC 4.8 -2 -2 The proposed project should investigate the use of alternative energy sources (e.g., solar) and, to the maximum extent economically feasible, incorporate the use of said energy sources into the design of the project. SC 4.8.2 -3 The Project Applicant will demonstrate that adequate facilities would be available to serve the proposed project including verification from SCG. SC 4.8.3 -1 Final design of the proposed project shall incorporate water - saving devices for project lavatories and other water -using facilities. SC 4.8.3-2 Where feasible, reclaimed water should be utilized for non - contact purposes such as irrigation. SC 4.8.3 -3 Efficient irrigation systems which minimize runoff and evaporation should be installed. Irrigation should be automatically timed during early morning hours to minimize waste and evaporation. SC 4.8.3 -4 The water system for the proposed project shall satisfy the requirements of the Irvine Ranch Water District. SC 4.8.4 -1 Prior to the issuance of the building permit, the applicant shall demonstrate that adequate sewer facilities would be available to serve the proposed project. This would include verifications of adequacy from the Utilities Department and the OCSD. SC 4.8.5 -1 The proposed project will be subject to all applicable goals and strategies of the SRRE adopted by the City of Newport Beach pertaining to the reduction of solid waste. SC 4.8.5 -2 Prior to the occupancy of the proposed project, a program for the sorting of recyclable material from other solid wastes shall be developed by the applicant and approved by the General Services Department. 14 3 i Aesthetics Implementation of the proposed project would not result in significant impacts related to aesthetics or light and glare. 2. The proposed project in conjunction with other past, present, and reasonably foreseeable future projects would not result in a significant cumulative impact to aesthetics and light/glare. Standard Conditions SC 4.9 -1 The lighting system shall be designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent areas. The plans shall be prepared and signed by a Licensed Electrical Engineer, with a letter from the Engineer stating that, in his or her opinion, this requirement has been met. SC 4.9 -2 Signage and exterior lighting shall be of similar design theme throughout the project and shall be approved by the Planning Department and Public Works Department. SC 4.9 -3 Lighting for the proposed professional office building and parking structures shall comply with all applicable FAA regulations regarding lighting and glare. FINDING The environmental effects listed above are found not to be significant with the incorporation of the standard conditions identified for each issue. FACTS IN SUPPORT OF FINDING A. The discussion and analysis in the Initial Study indicate that the environmental effects listed above are insignificant. B. The Draft EIR concluded that the environmental effects listed above are insignificant or would be avoided by the implementation of standard conditions of approval identified above. C. During the 45 -day public review period as mandated by CEQA, the Draft EIR was distributed to all responsible and trustee agencies and other interested parties and no comments were received which would modify the above finding. IV. FINDINGS ON SIGNIFICANT IMPACTS OF THE PROPOSED PROJECT A. TRANSPORTATION AND CIRCULATION IMPACT Short-Term Impacts: During construction of the two parking structures, existing surface and structural parking will be eliminated, resulting in short-term parking impacts. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Implementation of the following mitigation measure will reduce potential short-term project - related parking impacts resulting from the demolition of the existing parking structure to a less than significant level. 15 �i it MM 4.4 -1 Prior to issuance of the building permit for the first parking structure, the applicant shall prepare an interim parking relocation plan that will be implemented, subject to the review and approval of the City of Newport Beach, during the construction phases of the proposed parking structures and 10 -story office building. The interim parking plan will identify the various methods that will be employed during the construction phase of project implementation to meet the parking needs of the existing Office Site B (South) office buildings, including but not limited to: • Shuttle service to underutilized common area parking within Koll Center Newport. • Shuttle service to off -site parking locations. • Valet parking to increase efficiency (i.e., density) of parking in Office Site B (South). All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impacts will remain after implementation of the required mitigation measures. 2. IMPACT Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard /Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary, derived from the site specific traffic analysis prescribed in the measure listed below, will reduce potential long -term traffic and circulation conditions in the vicinity of the subject property; however, significant impacts at this intersection will remain. MM 4.4 -2a Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share as determined by the City, to implement the following improvements to the MacArthur Boulevard /Jamboree Road intersection: Add a second northbound left turn lane Add a second southbound left turn lane Add a northbound right turn lane The City of Newport Beach has previously contemplated these improvements, prior to the preparation of the KCN Traffic Impact Analysis. Alternative preliminary design concepts for improvements to this intersection have been prepared by the City's consultant. A cost estimate for the design was prepared and submitted to OCTA in an effort to receive Measure M funding. Improvements are planned for construction in 2002- 2003. 16 C 5 Finding: The measures prescribed above will significantly reduce long -term, project - related traffic impacts at the MacArthur Boulevard /Jamboree Road intersection. Although these measures will substantially reduce traffic impacts, they cannot be reduced to a less than significant levels. Specific economic, legal, social, technological, or other considerations relating to the implementation of the necessary roadway and circulation improvements make infeasible for the project to mitigate long- term impacts at this intersection. Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth above and below in the Statement of Overriding Considerations. 3. IMPACT Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the Jamboree Road /1 -405 NB Ramps in the City of Irvine during the a.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 1.03 ICU/LOS F) with the implementation of the proposed project and buildout of other projects. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary, derived from the site specific traffic analysis prescribed in the measure listed below, will ensure that future development adequately addresses the transportation and circulation conditions in the vicinity of the subject property. MM 4.4 -3 Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share as determined by the City of Irvine, to implement the 2020 model geometric improvements to the Jamboree Road /1 -405 NB Ramps. All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impacts will remain after implementation of the required mitigation measures. 4. IMPACT Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the Irvine Avenue /Mesa Drive intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 1.05 ICU /LOS F) with the implementation of the proposed project and buildout of other projects. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary, derived from the site specific traffic analysis prescribed in the measure listed below, will ensure that future development adequately addresses the transportation and circulation conditions in the vicinity of the subject property. MM 4.4 -4 Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's fair share as determined by the City for the circulation improvements for the Irvine Avenue /Mesa Drive intersection: 17 C� Add a third northbound through lane Add a third southbound through lane Add a southbound right turn lane All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impacts will remain after implementation of the required mitigation measures. 5. IMPACT Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative degradation of the Jamboree Road/Campus Drive intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.99 ICU /LOS E) with the implementation of the proposed project and buildout of other projects. No mitigation measures have been identified. The City of Newport Beach and the City of Irvine are evaluating the feasibility of implementing improvements to this intersection to mitigate this significant impact. Until the appropriate mitigation is identified, this impact is considered significant and unavoidable. Finding: Specific economic, legal, social, technological, or other considerations relating to the implementation of the necessary roadway and circulation improvements make infeasible for the project to mitigate long -term impacts at this intersection. In addition, any changes or alterations are shared with another public agency (i.e., City of Irvine) and have been, or can and should be, agreed to and adopted by that other agency. Facts in Support of the Finding: The unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth in the Statement of Overriding Considerations. B. AIR QUALITY IMPACT Short-Term Impacts from Construction: Project implementation will result in short-term construction emissions resulting from the use of construction equipment. Project - related emissions of oxides of nitrogen will exceed the significance threshold established by the SCAQMD. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.5 of the EIR. Facts in Support of the Finding: Incorporation of mitigation measures will reduce potential short-term impacts; however, significant impacts will remain. MM 4.5 -1a The applicant shall sweep streets if silt is carried over to adjacent public thoroughfares. MM 4.5 -1b Low emission on -site stationary equipment (e.g., clean fuels) shall be used during the construction activities. MM 4.5 -1c Traffic speeds on all unpaved road surfaces shall be reduced to 15 miles per hour or less during construction. (A reduction in travel speeds to 15 miles per hour on unpaved road surfaces normally reduces particulate emissions from this activity by approximately 40 percent to 70 percent.) MM 4.5 -1d The construction contractor shall maintain construction equipment engines by keeping them mechanically tuned. 18 Q 1 MM 4.5-le The construction contractor shall utilize existing power sources (e.g., power poles) or clean fuel generators rather than temporary power generators. MM 4.5 -1f The applicant shall provide on -site power sources during the early stages of the project. MM 4.5 -1g A construction parking plan shall be prepared by the applicant and /or contractor and submitted to the City for approval. The parking plan shall minimize traffic interference. MM 4.5 -1 h A flagperson shall be provided to properly guide traffic and ensure safety at construction sites. MM 4.5 -1i The applicant and /or contractor shall schedule operations affecting traffic for off -peak hours, where feasible. MM 4.5 -1j A traffic plan to minimize traffic flow interference from construction activities (the plan may include advance public notice of routing) shall be prepared and submitted to the City for approval. MM 4.5 -1k Truck deliveries and deliveries and the movement of goods shall be scheduled for off -peak hours when feasible. MM 4.5 -11 An urban tree planting program shall be incorporated into the landscape concept plan in order to offset the loss of existing trees at the construction site. Finding: The measures prescribed above will significantly reduce short-term, project - related construction impacts. Although these measures will substantially reduce air emissions during construction, the project site is located within the South Coast Air Basin (SCAB) which has been designated as a "non - attainment' area. Therefore, project implementation will result in unavoidable significant adverse impacts. Specific economic, legal, social, technological, or other considerations relating to the non - attainment status of the SCAB make infeasible for the project to mitigate construction - related air quality impacts. Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth above and below in the Statement of Overriding Considerations. 2. IMPACT Long -Term, Operational Impacts: Project implementation will result in long -term pollutant emissions resulting from mobile- and stationary sources. Project - related emissions of reactive organic gas and oxides of nitrogen will exceed the significance thresholds established by the SCAQMD. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.5 of the EIR. Facts in Support of the Finding: Potentially significant project - related operational air quality impacts can be substantially reduced by implementing the mitigation measures identified below, as contained in the EIR. MM 4.5 -2a Adequate ingress and egress shall be provided at all entrances to public facilities to minimize vehicle idling at curbsides. 19 0� MM 4.5 -2b Provide dedicated turn lanes as appropriate and provide roadway improvements at heavily congested roadways. MM 4.5 -2c Improve thermal integrity of the buildings and reduce thermal load with automated time clocks or occupant sensors. MM 4.5 -2d Install energy efficient parking lot lighting. MM 4.5 -2e Capture waste heat and re- employ it in nonresidential buildings. MM 4.5 -2f Landscape with native drought- resistant species to reduce water consumption and to provide passive solar benefits. MM 4.5 -2g Provide lighter color roofing and road materials and tree planning programs to comply with the AQMP Miscellaneous Sources MSC -01 measure. This measure reduces the need for cooling energy in the summer. MM 4.5 -2h Provide bicycle lanes, storage areas, and amenities, and ensure efficient parking management. MM 4.5 -2i Provide preferential parking to high occupancy vehicles and shuffle services. Also, designate additional car pool or vanpool parking. MM 4.5 -2j Encourage employers to provide variable work hours and telecommuting to employees to comply with Advanced Transportation Technology ATT -01. MM 4.5 -2k Provide dedicated parking spaces with electrical outlets for electrical vehicles. MM 4.5 -21 Develop a trip reduction plan to comply with SCAQMD Rule 2202. SCAQMD Rule 2202 has revamped the requirements for carpooling. In general, mandatory carpooling is no longer required. Compliance with Rule 2202 will be mandatory. MM 4.5 -2m Encourage employers to provide ridematching, guaranteed ride home, or car pool or vanpool to employees as a part of the TDM program and to comply with the AQMP Transportation Improvements TCM -01 measure. Finding: The measures prescribed above will significantly reduce long -term, project - related operational impacts. Although these measures will substantially reduce operational emissions, the site is located in a `non- attainment" area and the incremental increase constitutes an unavoidable significant adverse impact. Specific economic, legal, social, technological, or other considerations relating to the non - attainment status of the South Coast Air Basin make infeasible for the project to mitigate air quality impacts. Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when compared to, and balanced against the facts set forth in the Statement of Overriding Considerations. C. NOISE IMPACT Short-Term, Construction - Related Impacts: Short-term construction levels at Receptor Site 2 (UCI Child Development Center) may reach 69 dB, depending on the type of construction equipment used 20 S� at the site, resulting in an increase of 4 dB over the maximum noise threshold of the Citys Noise Element (i.e., 5.5 dB over the ambient noise levels at that location). Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.6 of the EIR. Facts in Support of the Finding: Construction noise sources are not strictly relatable to a noise standard because they occur only during selected times and the source strength varies sharply with time. In accordance with the Citys General Plan Noise Element, construction activities will be limited to within the hours specified by that Element to help minimize any potential nuisance to nearby sensitive receptors. Therefore, project - related construction noise impacts identified above can be substantially reduced by the mitigation measure listed below. MM 4.6 -1 All construction equipment will be muffled and will be maintained in good working order to reduce equipment related noise generation. All significant environmental effects have been substantially lessened by virtue of the measures described above. No significant, unavoidable impacts will remain after implementation of the required mitigation measures. D. PUBLIC SERVICES IMPACT Long -Term Impacts: Should closure of OCFA Station 27 occur prior to buildout of the proposed project, or other changes occur that affect the existing level of service provided by the NBFMD, significant impacts may occur to the current level of fire protection and emergency service to the site. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.7.2 of the EIR. Facts in Support of the Finding: Potentially significant project - related impacts to police and law enforcement services and facilities can be substantially reduced by implementing the mitigation measure identified below, as contained in the EIR. MM 4.7.2 -1a If the closure of OCFA Station 27 should occur prior to the buildout of the proposed project, the Applicant shall be required to assist in the cost of an evaluation of the current call loads, response times, and fire station deployment in order to provide a continued adequate level of service to the project site. If determined to be necessary by the evaluation, the Applicant shall be responsible for the project's proportional share of the required facilities, equipment, and staff resources identified. MM 4.7.2 -2b Should the proposed project be subject to a business excise tax (BET), a portion of that tax shall be directed to the NBFMD for public safety improvements. All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impact will remain after implementation of the required mitigation measure. 21 6 E. AESTHETICS IMPACT Long -Term Impacts: Introduction of the 2 -level parking structure in the southern portion of Office Site B may result in changes to the site that could adversely affect the visual character of the site by exposing portions of the parking structure and automobile parking surfaces that do not currently exist. Finding: Changes or alterations have been required in, or incorporated into the project, or are otherwise being implemented which substantially mitigate or avoid the significant effects on the environment as summarized above and described in detail in Chapter 4.0, Section 4.9 of the EIR. Facts in Support of the Finding: Potentially significant project - related visual impacts can be substantially reduced by implementing the mitigation measure identified below, as contained in the EIR. MM 4.9 -1a The concrete sides of the 2 -level parking structure shall be textured and colored for faced with brick or other material consistent with the structure's associated buildings. Exposed, uncolored concrete sides shall be avoided. MM 4.9 -1b Linear planters and /or trellises with shrubs and cascading vines shall be provided along the outside of the upper parking level to soften the visual appearance of the structure. All significant environmental effects have been substantially lessened by virtue of the measure described above. No significant, unavoidable adverse impact will remain after implementation of the required mitigation measure. The EIR analyzed the cumulative impacts of the project when considered together with other past, present and reasonably foreseeable future projects which were identified in the EIR. The EIR concluded that, with the exception of the cumulative impacts on traffic and circulation with respect to two intersections in the City and long -term, cumulative operational air quality impacts, all of the cumulative impacts of the project when considered together with the related projects were less than significant. For these two unavoidable, adverse cumulative impacts, specific economic legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible mitigation measures or alternatives which would avoid or substantially lessen the significant cumulative environmental effects identified in the EIR. Any remaining unavoidable, cumulative traffic and circulation impacts and long -term, cumulative air quality impacts are acceptable when compared to, and balanced against the facts set forth above and below in the Statement of Overriding Considerations. V. FINDINGS REGARDING ALTERNATIVES TO THE PROPOSED PROJECT CEQA requires that an EIR describe a range of reasonable alternatives to the project, or to the location of the project, which could feasibly attain most of the basic objectives of the project and to evaluate the comparative merits of the alternatives. Section 15126(d)(1) of the State CEQA Guidelines states that the "... discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly." The proposed project has been compared to several "feasible" alternative development scenarios, including the No Project alternative as prescribed by CEQA. These alternatives include: (1) No Project (i.e., Existing City General Plan and Koll Center Newport PC); (2) No Development (no additional development, including 15,000 square feet of allowable retail use); (3) Reduced Development Intensity (82,000 square feet of 22 91 professional office development); (4) Alternative Land Use (Industrial /Research and Development); and (5) Alternative Location. The analysis contained within the EIR concludes that, with the exception of the project - related cumulative traffic impacts, air emissions that contribute to and exacerbate the existing ambient conditions in the SCAB that has been identified as a "non- attainment" area, and cumulative solid waste impacts, the proposed project will not result in any other long -term project- specific adverse impacts that cannot be mitigated to a less than significant level. Further, the potential impacts of the proposed project itself have not been found to significantly impact any sensitive environmental resource which might be avoided by development at another location. The following discussion summarizes the potential environmental consequences and highlights the comparative merits associated with each alternative identified as "potentially feasible" and analyzed in the EIR as well as the "No Development" alternative. A. NO PROJECT (EXISTING GENERAL PLAN /KOLL CENTER NEWPORT PC) The No Project alternative would allow development of the subject property in accordance with the Koll Center Newport Planned Community land uses adopted by the City of Newport Beach for Office Site B. According to the Koll Center Newport PC, approximately 15,000 square feet of yet undeveloped retail (10,000 square feet) and restaurant (5,000 square feet) uses have been approved within Office Site B; however, these uses have not been implemented.. The No Project alternative analyzes the development of the remainder of the approved retail and restaurant uses approved for Office Site B. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Potential impacts identified in the Draft EIR that would be anticipated from implementation of the proposed project would also occur if the "No Project" alternative were approved by the City; however, some of the most significant impacts (e.g., traffic, noise, aesthetics, etc.) would be reduced proportionately with the elimination of the 250,000 square feet of office development that would be replaced with the 15,000 square feet of retail space and restaurant uses permitted by the adopted Koll Center Newport Planned Community. Proiect Obiectives: Although implementation of this alternative would be consistent with the adopted plans for the site, it is inconsistent with the desired major project objectives. In particular, this alternative would not achieve the goal of facilitating connectivity with the existing and future Conexant development located adjacent to the subject property. Feasibili :This alternative is feasible and can be implemented pursuant to the adopted plans for the site. Elimination /Reduction of Significant Impacts: This project is effective at reducing potential traffic and (long- term) air quality impacts; however, other impacts will be similar as described for the proposed project. Comparative Merits: With the exception of the No Development alternative, this alternative, along with the reduced development intensity alternative would reduce project - related impacts and is comparatively superior to the proposed project. B. NO DEVELOPMENT (NO ADDITIONAL EXPANSION) This alternative would allow the continuation of the existing professional office and parking facilities that currently occupy the site. Although the KCN Planned Community has been approved for additional 15,000 square feet of retail and restaurant uses (refer to the description of the No Project alternative), this alternative assumes that such development would not occur, even though permitted by the Koll Center Newport PC land use allocations. No additional land use entitlements would be requested or required. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS The same environmental consequences identified in the City's General Plan EIR would also be anticipated under this alternative; however, they would most likely occur at a slower rate than those anticipated as a 23 n n result of implementing the proposed project. This is due, primarily, to the limited activities undertaken by the Community Development Commission pursuant to the Central City Redevelopment Plan. Project Objectives: Without additional professional office development as proposed, none of the applicant/City objectives would be achieved. IN particular, facilitating connectivity with the adjacent Conexant project and providing additional jobs in the City of Newport Beach 'would not occur. Feasibili : Although the No Development alternative is considered to be "environmentally superior' to the other alternatives, it is not feasible when considering the current demand for additional office space in the City of Newport Beach and the availability of land currently designated for professional office and administrative uses. Implementation of this alternative may have the effect of placing development pressures for professional office development in other areas of the City (or subregion) that are currently not designated fur use uses. Elimination /Reduction of Significant Impacts: By eliminating all of the project - related impacts, this alternative is considered to be the "environmentally superior" alternative when compared to the other alternatives. Comparative Merits: Implementation of this alternative would effectively reduce all of the project - related impacts, including those resulting from increased traffic, short- and long -term air quality emissions, short-term noise increases, and potential impacts to fire protection. C. REDUCED DEVELOPMENT INTENSITY This alternative includes the same land use (i.e., professional office); however, the intensity of development has been reduced to yield only 82,000 square feet of gross leasable area in order to eliminate the proposed project's potential traffic and circulation impacts. Based on this figure, the proposed building would be approximately four stories in height and occupy the same location as the proposed project. In addition, rather than requiring two parking structures (i.e., a 6 -level structure to replace the existing 2 -level structure and an additional 2 -level structure), this alternative would require either increasing the capacity of the existing 2 -level structure (i.e., demolish the 2 -level and replace it with a 3- or 4 -level structure) or constructing a 2 -level structure as currently proposed in the southern parking lot to accommodate the additional, 235 parking spaces that would be required for the 82,000 square foot addition. While less intense than the proposed project, this alternative would still necessitate the approval of a General Plan Amendment and amendment to the PC District regulations, as well as a TPO approval and other related approvals similar to the proposed project. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Implementation of this alternative will generally result in the similar, but proportionately reduced environmental consequences described for the proposed project. Specifically, project - related traffic resulting from this alternative will not reach the "significance thresholds" established by the City's TPO and Orange County CMP criteria. Further, when receiving credit for the retail and restaurant development, no significant traffic impacts would occur. Therefore, the significant, unavoidable traffic impacts would be avoided. Other long -term air quality and noise impacts would be reduced proportionately. As a result, impacts to the City's sewer, water, storm drain and circulation system could be exacerbated. Project Objectives: Although the project and City objectives of creating connectivity with the adjacent Conexant project and providing additional jobs in the City of Newport Beach would occur, it would do so to a limited degree and may not be adequate to meet the current demands for additional office space in the area by Conexant or other potential tenants of the project. Elimination /Reduction of Significant Impacts: Similarly to the No Project alternative, implementation of this alternative would effectively reduce all of the significant project - related impacts, including those resulting from increased traffic (e.g., noise, air quality). 24 1' Feasibili : Although this alternative may be feasible, it is not a completely efficient use of the site for the proposed use in order to meet the current demand for professional office development in the City of Newport Beach. Comparative Merits: This alternative is considered to the comparatively "superior,' along with the No Project alternative, when compared to the proposed project and other alternatives. As indicated above, project - related impacts would be reduced and no significant unavoidable impacts would occur. D. ALTERNATIVE LAND USE (INDUSTRIAL/RESEARCH AND DEVELOPMENT) Given the proximity to Industrial Site 1 within Koll Center Newport as well as the type and character of development in the area surrounding the subject property, light industrial/research and development uses could be reasonably developed on the subject property. This alternative although similar in intensity as the proposed project, would comprise light industrial development, similar in nature to the adjacent Conexant facility located within Industrial Site 1, also in the KCN Planned Community. Up to 250,000 (gross) square feet of laboratory and office support facilities could be developed on within Office Site B. In addition to this expansion, site development would also necessitate similar facilities as the proposed parking structure, including the likely demolition of the 2 -level parking structure and replacement with a 6 -level facility as well as an additional 2 -level parking structure. SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Implementation of the Alternative Land Use will result in virtually the same impacts as the proposed project. The 250,000 square feet of industrial /research and development space on the subject property would generate cumulative degradation of several intersections in the City of Newport Beach, resulting in projected unacceptable levels of service in the long -term. Similarly, air quality impacts would also be commensurate with the proposed project and would be significant. Both unavoidable traffic and air quality impacts would be the same as described for the proposed project. Other impacts, including those to water quality, noise, and aesthetics would be similar to the proposed project as well. Proiect Objectives: Due to the similarity of this alternative with the proposed project, virtually all of the applicant/City objectives would be achieved. Most importantly, connectivity with the adjacent Conexant project would occur, as with the proposed project, and additional jobs would be created in the City of Newport Beach. Elimination /Reduction of Significant Impacts: Implementation of this alternative would generally result in all of the impacts that were described for the project, including increases in traffic, short- and long- term air quality emissions, short-term noise increases, etc.). Feasibili : This alternative is feasible and, as indicated above, would allow the applicant to achieve all of the project objectives. Comparative Merits: When comparing this alternative to the other alternatives, its impacts are similar to those of the proposed project and are greater than most of the alternatives. E. ALTERNATIVE SITE The State CEQA Guidelines require, where feasible alternative locations exist, that an EIR analyze such an alternative location if potential project impacts would be lessened by implementing the project in another location. Such a potential site exists within the Koll Center Newport PC north of the proposed location within Office Site B. This alternative includes development of the proposed project at a site located north of the subject property and west of Industrial Site 1, also within Office Site B. The project parameters are the same as the proposed project and include the development of 250,000 (gross) square feet of professional office space. In addition to the office space, adequate parking would also be required to serve the site. This parking could be in the form of parking structures, surface parking or a combination of these two forms. 25 G \.J SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS Implementation of the Alternative Site will result in virtually the same impacts as the proposed project. The 250,000 square feet of industrial /research and development space on the subject property would generate cumulative degradation of several intersections in the City of Newport Beach, resulting in projected unacceptable levels of service in the long -term. Similarly, air quality impacts would also be commensurate with the proposed project and would be significant. Both unavoidable traffic and air quality impacts would be the same as described for the proposed project. Other impacts, including those to water quality, noise, and aesthetics would be similar to the proposed project as well. Project Objectives: Due to the similarity of this alternative to the proposed project, all of the project objectives would be achieved, including those that would benefit the City of Newport Beach. Most importantly, connectivity with the adjacent Conexant project could occur, as with the proposed project, and the City of Newport Beach would receive the benefit of additional jobs that would be created to satisfy the local demand. Elimination /Reduction of Significant Impacts: Implementation of this alternative would generally result in all of the impacts that were described for the proposed project, including those resulting from increased traffic (i.e., short- and long -term air quality emissions and short-term noise increases). In addition, traffic impacts will remain significant, as identified and described for the proposed project. Feasibili :As indicated above, this project is not only similar to the proposed project but it would also achieve the stated project objectives and is feasible to implement. Further, the development would be provided on a site that is currently designated to accommodate the proposed use. Comparative Merits: When comparing this alternative to the proposed project and the other alternatives, its impacts are similar to those of the proposed project and are greater than the other alternatives. VI. GENERAL FINDINGS 1. The plans for the project have been prepared and analyzed so as to provide for public involvement in the planning and CEQA processes. 2. The degree that any impacts described in the EIR are perceived to have a significant effect on the environment, or such impacts appear ambiguous as to their effect on the environment, any significant effect of such impacts has been substantially lessened or avoided by the standard conditions and mitigation measures set forth in the Final EIR or is outweighed by the facts set forth in the Statement of Overriding Considerations. 3. Comments regarding the Draft EIR received during the public review period have been adequately responded to in written Responses to Comments attached to the Final EIR. Any significant effects described in such comments were avoided or substantially lessened by the standard conditions mitigation measures described in the Draft EIR or are outweighed by the facts set forth in the Statement of Overriding Considerations. 4. The analysis contained in the Draft EIR of the environmental effects and mitigation measures represent the independent judgment and analysis of the City of Newport Beach. 26 p 17 EXIHIBIT EIR -4: STATEMENT OF OVERRIDING CONSIDERATIONS I� STATEMENT OF OVERRIDING CONSIDERATIONS OFFICE SITE B EXPANSION — KOLL CENTER NEWPORT PC I. INTRODUCTION This City Council adopts and makes this Statement of Overriding Considerations concerning the Koll Center Newport project's unavoidable significant impacts in order to explain why the project's benefits override and outweigh its unavoidable impacts. The project will bring substantial benefits to the City of Newport Beach, including but not limited to, the provision of jobs for highly - trained workers, the provision of additional professional office development in close proximity to existing and proposed residential sectors, the realization of a net annual recurring revenue surplus of approximately $52,000, the payment of a traffic mitigation fee of $8.00 per square foot of the allowed additional building entitlement, or $2 million, the payment of $0.45 per square foot of the allowed additional building entitlement, or $112,500, for the purpose of funding a Planning Study for the John Wayne Airport area, and the payment of a $60,000 "fair share" fee to contribute to the cost of a new fire station to serve the Koll Center Newport Planned Community and other nearby areas of the City. The City Council finds that the project's unavoidable impacts are acceptable in light of the project's benefits. Each benefit set forth in this Statement constitutes an overriding consideration warranting approval of the project, independent of the other benefits, despite each and every unavoidable impact. II. UNAVOIDABLE ADVERSE IMPACTS The Environmental Impact Report and City staff review identified the following impacts that could not be mitigated to a less than significant level. Transportation and Circulation At two intersections where significant cumulative traffic impacts are forecast as a result of project - related traffic, i.e. MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, no feasible mitigation measures have been identified. The feasibility of implementing improvements to these intersections that will mitigate the significant impacts are being evaluated. However, until the appropriate improvements are identified, these impacts are considered significant and unavoidable: Impact 4.4 -2: Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour, which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. [note: above ICU number is correction of typographical error in Draft EIR] 1 Impact 4.4 -5: Traffic generated by the proposed project will contribute to the cumulative degradation of the Jamboree Road/Campus Drive intersection in the City of Newport Beach during the p.m. peak hour, which is forecast to operate at an unacceptable level of service (i.e., 0.99 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. Air Quality Because an individual development cannot carry out measures that would substantially reduce vehicle trips (VT) generated or vehicles miles traveled (VMT), effective programs that reduce single- occupant vehicle trips must be more regional in nature. Transit availability, bicycle paths, park -and -ride facilities, HOV lanes, etc., as important elements of any VT/VMT reduction programs, can only be integrated on a City- or county- or basin -wide basis rather than through the efforts of any single residential subdivision. The ability of any developer to effect pollution reducing travel mode choices by future occupants is small. As a result, the project - related air quality impacts and cumulative impacts will remain significant and unavoidable. These significant unavoidable air quality impacts include: Impact4.5 -1: Project implementation will result in short-term construction emissions resulting from the use of construction equipment. Project - related emissions of oxides of nitrogen (NOx) will exceed the significance threshold established by the SCAQMD. Impact 4.5 -2: Project implementation will result in long -term pollutant emissions resulting from mobile and stationary sources. Project - related emissions of reactive organic gas ROG) and oxides of nitrogen (NOx) will exceed the significance thresholds established by the SCAQMD. In addition to the impacts of the project described above, the project, in conjunction with other past, present, and reasonably foreseeable future projects will result in significant cumulative impacts related to several intersections within the City for which no feasible mitigation measures have been identified. Additionally, the project, in conjunction with other past, present and foreseeable future projects will exacerbate the currently degraded regional ambient air quality and will have an unavoidable significant long -term cumulative impact on air quality, even after implementation of mitigation. III. OVERRIDING CONSIDERATIONS The proposed project consists of the adoption of a General Plan Amendment, an Amendment to the Planned Community District Regulations adopted for the Koll Center Newport Planned Community, a development agreement, and related actions. Analysis in the Environmental Impact Report (EIR) for this project has concluded that implementation of the proposed project will result in long -term, project - related and cumulative impacts that cannot be mitigated to a less than significant level. Impacts in these and other cases have been mitigated to the extent considered feasible. All significant adverse impacts are identified in the EIR and are addressed in the Statement 2 q I of Findings for the project. The Newport Beach City Council determines that the residual unavoidable adverse air quality and traffic impacts identified in Section II which will remain after mitigation are outweighed by specific economic, legal, social, technological, or other benefits of the project. In making this determination, the following factors and public benefits were considered as overriding considerations that apply to each unavoidable impact. 1. The project provides short-term construction jobs and will also foster the provision of jobs for highly- trained workers that will strengthen the City's existing general employment base. 2. The project provides additional professional office development in close proximity to existing and proposed residential sectors of the City and County, thereby providing the opportunity to reduce commute distances and reduce traffic and air emissions. 3. The proposed development is designed and landscaped so as to provide an aesthetically pleasing business environment that is compatible with the surrounding professional office and commercial areas within the John Wayne Airport complex. 4. Project implementation will result in a net annual recurring revenue surplus of approximately $52,000, based on the fiscal impact analysis prepared for the project. As a result, the project will pay for itself and will not require City funds or resources to provide needed public facilities and services. 5. The Project will provide resources to the Newport-Mesa Unified School District via payment of a floor area development fee assessed to new commercial development under state law. 6. The Project will pay transportation fees to the San Joaquin Hills Transportation Corridor Joint Powers Authority and/or Transportation Corridor Agencies for improvements to regional transportation facilities, including the San Joaquin Hills Transportation Corridor. 7. The Project will pay "Fair Share Traffic Fees" in the amount of $235,570 for circulation improvements that will be constructed in the City of Newport Beach. These improvements will be undertaken by the City to alleviate unacceptable service levels at intersections and along roadway segments both in the project area and in the City of Newport Beach. 8. The Project will pay a Traffic Phasing Ordinance fee of $70,000 to contribute to the improvements identified for the MacArthur Boulevard/Jamboree Road intersection. These improvements include the construction of a second northbound left turn lane on MacArthur Boulevard, a second southbound left -turn lane on MacArthur Boulevard, and a second northbound right -turn lane on MacArthur Boulevard. 3 C C� Implementation of these improvements will fully mitigate the short-range impacts of project trips at that intersection. 9. The Project will pay a mitigation fee of $8.00 per square foot of the allowed 250,000 gross square feet of additional entitlement, or $2 million. Those funds will be used to pay for mitigating the long -range traffic impacts at intersections in the area of the project. 10. The Project will pay a fee of $0.45 per square foot for the allowed 250,000 gross square feet of additional entitlement, or $112,500, to the City of Newport Beach to be used by the City solely for the purpose of funding a Planning Study for the John Wayne Airport area. The planning study will determine the type and intensity of further development which should be permitted in the area and the road and other infrastructure improvements which will be needed to accommodate existing and future development. 11. The Project will pay a $60,000 "fair share" fee of the estimated $2,000,000 needed to construct and equip a new fire station in the City of Newport Beach that will serve, not only the Koll Center Newport Planned Community, but also a larger service area identified by the City. The $60,000 paid by the project applicant will be used solely to fund the acquisition of a new fire station site, the construction of a new fire station, and/or the equipment/staffing of the station. 12. The proposed project will help to achieve several goals and policies articulated in the Newport Beach General Plan, including the following: a. The City shall provide for sufficient diversity of land uses so that schools, employment, recreation areas, public facilities, churches and neighborhood shopping centers are in close proximity to each resident of the community: The project consists of the intensification of office development on a project site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. Since the project site is located in proximity to residential areas, the additional employment opportunities resulting from construction of a new 250,000 square -foot office tower on the site would contribute to a more desirable jobs- housing balance in the area. b. The siting of new buildings and structures shall be controlled and regulated to insure, to the extent practical, the preservation of public views, the preservation of unique natural resources, and to minimize the alteration of natural land forms along bluffs and cliffs: The site of the new office tower is set back substantially from both MacArthur Boulevard and Jamboree Road in order to mitigate visual impacts from public streets. One of the new parking structures will be located close to the intersection of MacArthur and Jamboree. However, this two -level structure will be depressed partially below grade and the perimeter of the structure will be heavily landscaped in order to soften public views. Additionally, 4 166 the existing two -level parking structure just north of the existing twin ten -story office towers will be replaced with a new six -level structure located 200 feet further back from Jamboree and 50 feet further back from MacArthur than the existing structure. Per design standards added to the PC text, both new parking structures will be textured and landscaped to soften their visual impacts. c. The City shall develop and maintain suitable and adequate standards for landscaping, sign control, site and building design, parking and undergrounding of utilities and other development standards to insure that the beauty and charm of existing residential neighborhoods is maintained, that commercial and office projects are aesthetically pleasing and compatible with surrounding land uses and that the appearance of, and activities conducted within, industrial developments are also compatible with surrounding land uses and consistent with the public health, safety and welfare: The PC District Plan, i.e. the KCN Planned Community text, contains extensive landscaping standards for different building heights. In the case of the proposed ten -story building, substantial landscaping will be required within Office Site B to soften and mitigate the development. The PC text also contains detailed standards for parking, signs and other development standards. 5 101 EXHIBIT EIR -5: MITIGATION MONITORING AND REPORTING PROGRAM 16 MITIGATION MONITORING AND REPORTING PROGRAM KOLL CENTER NEWPORT INTRODUCTION The California Public Resources code Section 2108.16 requires that a lead or responsible agency adopt a mitigation monitoring and reporting program (MMRP) when approving or carrying out a project where an environmental document, either an environmental impact report (EIR) or a mitigated negative declaration, has identified measures to reduce potential adverse environmental impacts to levels that are less than significant. An EIR has been prepared for this project which addresses the potential environmental impacts and, where appropriate, recommends measures to mitigate these impacts. An MMRP is, therefore, required to ensure that adopted mitigation measures are successfully implemented. The City of Newport Beach is the lead agency for the Koll Center Newport Planned Community (PC) project and, therefore, is responsible for implementation of the MMRP. This report describes the MMRP for the Koll Center Newport PC project and identifies the department in the City of Newport Beach that will be responsible for monitoring implementation of the MMRP. MITIGATION MONITORING AND REPORTING PROGRAM MANAGEMENT The MMRP for the Koll Center Newport PC project will be active through all phases of the project, including design, construction, and operation. The proposed project will be developed in phases and will include building permits, occupancy permits and other permits required for implementation of the project components. There are mitigation measures that must be continuously implemented throughout the development of the project site. For example, mitigation measures implemented "prior to building permits" must be implemented prior to the issuance of each building permit issued for the project. The enforcement of the MMRP is also the responsibility of the City of Newport Beach. The City personnel responsible for verifying compliance with the mitigation measures are identified in the MMRP and include the Planning Director, the Director of Public Works, Utilities Director, and the City Engineer, and City Traffic Engineer (or their designees). These department heads are responsible for ensuring that the mitigation measures are implemented by the project applicant. If an adopted mitigation measures is not being properly implemented, the designated monitoring personnel shall require corrective actions to ensure adequate implementation. MITIGATION MONITORING AND REPORTING PROGRAM The attached table identifies the mitigation program required to be implemented by the project applicant for the Koll Center Newport PC project. The mitigation program includes the following components: (1) standards conditions (SCs); and (2) mitigation measures (MMs). The table identifies the timing of implementation, the respective measure (i.e. SC or MM) required, and the individual responsible for monitoring compliance. The MMRP also includes columns that will be used by the compliance monitor to document when implementation of the measure is completed. Mitigation Monitoring and Reporting Program Koll Center Newport PC - Office Site e Page t X03 O U) LU cc CC L13 M cr § a§ § P L) §k 20 w§_ z Z� }§ \0) kCC 2k %2 2E z2 z2 m 2S Z ECC § p\ ■� IB/ B k k LU r e§ , = sz �?)� k, 2 )2 � a ]k \ )» \ �K I \!� � § i § / &§ $ \� { §$ r)� ))) \\� §$ - — -_ _ / _ !« 3« ! 0 cc .$ �k bk a 2 24 o ` )}_ a. \\ < ; -- ) -- � \ ƒ ) ) 0- ` § 9| !g 'M _ }! 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Cc oma )o,0 rnmY 0mm a�`m @ —E @ @ p ay o@ c@'g0 @m @ m ._ @ w5E FZ a£H£ F£m ad@ FE —Z6 U)nm Fp@ tea@ m y « « u m a m m v m v> « cN m rn m co ec m m ci d, 2 2 v v v a v v v �I� EXHIBIT EIR -6: ERRATA CORRECTIONS TO DRAFT EIR )N ERRATA CORRECTIONS TO DRAFT ENVIRONMENTAL IMPACT REPORT KOLL CENTER NEWPORT OFFICE SITE B 1. Table 1 -1, (Transportation and Circulation), Page 1 -8 Delete entry in last row of table related to Jamboree Road/Bristol Street North (Potential Impacts, Mitigation Measures and Level of Significance after Mitigation. 2. Table 3 -1, Page 3 -5 Revise column 5 (P.C. Text - Square feet) in line 2 (Office Site B) to read: 963,849 square feet. Revise column 5 (P.C. Text - Square feet) in line 8 (Sub -Total Office) to read: 2,385,600 square feet Revise column 5 (P.C. Text - Square Feet) in line 12 (Total) to read: 2,981,485 square feet 3. Section 3.4.1, Page 3 -6 Delete the third paragraph and replace it with the following text: "The General Plan Amendment proposes a 250,000 square -foot increase in the Land Use Element's maximum gross floor area for Office Site B. In addition to this General Plan Amendment, the KCN Planned Community District Plan (PC text) must also be amended to increase the amount of office square footage allocated to Office Site B. "The General Plan Land Use Element specifies building square footage as gross floor area. By contrast, the PC text lists square footage as net floor area. Per the Zoning Code, gross floor area includes all floor area within the exterior wall surface of a building while net floor area excludes non - habitable space, such as equipment rooms, elevator shafts, stairwells, etc. "As used by the City, net floor area is considered to be 95 percent of gross floor area. Therefore, the proposed General Plan increase in gross floor area of 250,000 square feet corresponds to an increase in net floor area in the PC text of 237,500 square feet. Currently, 963,849 net square feet of office development is permitted within Office Site B. Approval of the proposed PC text amendment would bring the total amount of professional and business office use in Office Site B to 1,201,349 net square feet (i.e., 963,849 net square feet + 237,500 net square feet). "In addition to the PC's allocated office use, there are separate unused allocations for 5,000 square feet of restaurant space and 10,000 square feet of retail /service space in Office Site B. The PC text provides that these 15,000 square feet, if not used, will automatically revert to office use. Therefore, the proposal includes 0 this "reverted" restaurant/retail space within the 237,500 square feet of new office use. (Thus, the total increase in net square footage will actually be 222,500 (i.e., 237,500 net square feet - 15,000 net square feet). For purposes of clarity, the PC text amendment will explicitly convert the above restaurant/retail space to office use." 4. Section 3.4.2, Page 3 -7 Change Zone Change (Koll Center Newport Planned Community District Regulations "bullet' to read: Approval of an amendment to the Koll Center Newport Planned Community District Regulations dated May 5, 1972 (Amended August 10, 1988) to increase the amount of office space within Office Site B. In addition, the PC text will be revised as necessary to permit the proposed 250,000 (gross) square feet (i.e., 237,500 net square feet, based on 95 percent of gross) of additional professional office development, including the elimination of the currently approved but not developed restaurant and retail area remaining within Office Site B. As a result, a total of 222,500 net square feet of office space (237,500 net square feet - 15,000 net square feet of restaurant/retail space) will be added to the PC text for Office Site B. Amendment No. 26, as currently proposed, is included as Appendix C. 5. Section 1.5, Page 1 -7 (Row 2, Column 1) and Section 4.4.5, Page 4.4 -25 Replace Impact 4.4 -2 with the following: Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. 6. Section 4.4.5, Page 4.4 -26 Delete Impact 4.4 -6 and MM 4.4 -6. Section 4.4.6, Page 4.4 -27 Add the following impact as a significant, unavoidable impact before Impact 4.4 -5: Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. �I� 8. Chapter 9.0, Section 4.4 (Transportation and Circulation), Page 9 -5 Delete MM 4.4 -6. 9. Chapter 10.0, Section 4.4 (Transportation and Circulation), Page 10 -1 Add the following impact before Impact 4.4 -5: Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E) with the implementation of the proposed project and buildout of other projects. III ATTACHMENT 5: DRAFT DEVELOPMENT AGREEMENT ORDINANCE 1l ORDINANCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A DEVELOPMENT AGREEMENT FOR KOLL CENTER NEWPORT OFFICE SITE B [DEVELOPMENT AGREEMENT NO. 161 WHEREAS, Koll Center Newport Number A ('Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit "DA -1" ; and WHEREAS, the Development Agreement provides for certain rights, obligations, and assurances on the parts of both the City and the Developer; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Development Agreement; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Development Agreement, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: dal SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the project addressed by the Development Agreement. Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of Newport Beach and the project applicant mutually agreed to enter into a Development Agreement for the proposed project. The Development Agreement provides additional mitigation for project impacts in the form of fees for road improvements and other items. Although this discretionary action was not identified in the project description contained in the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those related to the approval and implementation of the Development Agreement. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: DEVELOPMENT AGREEMENT. a. The Development Agreement is consistent with the objectives, policies, general land uses, and programs of the General Plan of the City in that it supports and implements the project and its associated General Plan Amendment and Zoning Amendment, which provide for land use designations and other components which are consistent with the General Plan, as amended. b. The City Council hereby approves and adopts the Development Agreement, attached hereto as Exhibit "DA -1 ". The Mayor is hereby authorized to execute the Amendment and, following such execution, the City Clerk shall cause a copy thereof to be recorded with the Orange County Recorder. 2 l�Z SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on June 26, 2001 and adopted on July 10, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK 3 � � 0 EXHIBIT DA -1: DEVELOPMENT AGREEMENT Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH ► 1, KOLL CENTER NEWPORT NUMBER A Approved , 2000 Ordinance No. 00- 0 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is executed as of 2000, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and KOLL CENTER NEWPORT NUMBER A ( "OWNER "). 1. RECITALS. 1.1 Property/Ownership Status. OWNER owns all of the real property ( "Property") described on Exhibit "A" and depicted on Exhibit "B," consisting of approximately five (5) acres. 1.2 Planning Status. The Property comprises a portion of Office Site B" known as "Professional and Business Office Site B" of the Koll Center Newport Planned Community, which is currently entitled with approximately one million (1,000,000) square feet of office development. 1.3 Project. OWNER has asked CITY to approve a general plan amendment, zoning amendment and related permits that would authorize the construction of approximately two hundred and thirty -five thousand (235,000) square feet of additional office use on the Property. 1.4 Hearings. The Newport Beach Planning Commission and the Newport Beach City Council have conducted all required public hearings on the Project and certified an Environmental Impact Report for the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance with applicable provisions of State law and the Newport Beach Municipal Code. 1.5 General Findings. The Planning Commission and City Council have determined that the Project and all Project Approvals are consistent with all elements of the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the CEQA Guidelines. The Project and all Project Approvals are also consistent with all other relevant plans, policies, ordinances, resolutions and regulations of the CITY. 1.6 Affordable Housing. The CITY and OWNER have determined that the Project does not constitute a residential development subject to the terms and conditions of the CITY's Housing Element. Accordingly, no present or subsequently enacted affordable housing requirement or housing in lieu fee shall be required of OWNER. 1.7 Purpose of Agreement. The purposes of this Agreement are as follows: (a) To provide for the orderly completion of development of the Property consistent with the Project Approvals, Project Conditions and this Agreement. ia� (b) To provide the CITY and OWNER with certainty that the Project will be developed and maintained as contemplated by the Project Approvals, Project Conditions and the Development Plan. (c) To provide assurance to OWNER that OWNER may proceed with the Project, subject to compliance with Project Conditions, in accordance with the laws, policies, rules, ordinances, resolutions and regulations of the CITY in effect as of the Approval Date. (d) To strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic cost of development, mitigate the impacts of development, and provide public benefits in excess of those normally secured through the planning process. 1.8 Authorization. This Agreement is authorized by, and is consistent with, the provisions of §§ 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.9 Police Power. The City Council has determined that this Agreement: (a) Is in the best interests of the health, safety and general welfare of the CITY, its residents and the public; (b) Was entered into pursuant to, and is a valid exercise of, the CITY's police power; and (c) Has been approved in accordance with the provisions of State and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On 2000, after giving appropriate notice and holding all appropriate public hearings, the City Council conducted the first reading of Ordinance No. authorizing the CITY to enter into this Agreement. The City Council approved the Adopting Ordinance on , 2000, after giving appropriate notice and holding all appropriate public hearings. The Adopting Ordinance shall be considered effective as specified in Section 8.1. 1.11 CEQA Review. The City Council has independently reviewed, approved and certified the EIR for the Project. In so doing, the City Council determined, among other things, that the EIR was prepared in full compliance with CEQA and the CEQA Guidelines. The City Council also adopted all feasible mitigation measures, made appropriate findings and adopted a statement of overriding considerations with respect to any significant effect that could not be mitigated to a level of insignificance. The City 2 Council also adopted a Mitigation Monitoring Program for the Project as required by CEQA and the CEQA Guidelines. 2. DEFINITIONS. 2.1. "Adopting Ordinances" refers to: (a) Ordinance No. 2000- adopted by the City Council on , 2000, approving Zoning Amendment No. 905 and this Agreement; (b) Resolution No. 2000- adopted by the City Council on 2000, approving GPA 97 -3(B); (c) Resolution No. 2000- adopted by the City Council on 2000, approving Traffic study No. 119 and making findings pursuant to Chapter 15.40 of the Code; (d) Resolution No. 2000- adopted by the City Council on 2000 certifying the EIR as fully compliant with CEQA and the CEQA Guidelines, adopting all feasible mitigation measures, and containing the statement of overriding considerations. 2.2. "Agreement" refers to this Development Agreement. 2.3. "Annual Review" refers to the review of OWNER's and CITY's good faith compliance with this Agreement, as set forth in Section 7. 2.4. "Approval Date" means 2000, the date on which the City Council approved the Adopting Ordinances. 2.5. "Assign" means all forms of use of the verb "assign" and the nouns "assignment" and "Assignee" shall include all contexts of hypothecation, sales, conveyances, transfers, leases, and assignments. 2.6. "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California. 2.7. "CITY" refers to the City of Newport Beach, California. 2.8. "Cure Period" refers to the period of time during which a Default may be cured pursuant to Article 10. 3 2.9. "City Council' refers to the City Council of the CITY. 2.10. "Day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11. "Default' refers to any material default, breach, or violation of the provisions of this Agreement. A "CITY Default' refers to a Default by the CITY, while an "OWNER Default" refers to a Default by OWNER. 2.12. "Develop" means all forms of use of the verb "develop" and the noun "Development", whether or not capitalized, means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and parking facilities and improvements. "Develop" or "Development' also includes the maintenance, repair, alteration, reconstruction or redevelopment of any building, structure, improvement, landscaping or facility after the initial construction and completion so long as consistent with the Project Approvals, the Development Plan and this Agreement. "Develop" or "Development' also includes the use of the Property in a manner consistent with the permitted general, primary, and secondary uses as set forth in the PC Text and the Development Plan. 2.13. "Development Plan" means and constitutes the plan for the development of the Property, as embodied and stated in the Project Approvals, Project Conditions and this Agreement. 2.14. "Effective Date" shall be the date this Agreement becomes effective as specified in Section 8.1. 2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No. 99091120) prepared for the Project and certified as fully compliant with CEQA and the CEQA Guidelines by the CITY Council on the Approval Date. 2.16. "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 7.4. 2.17. "Exhibit' refers to an Exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are as follows: Exhibit: Description: A Legal Description of the Property B Map depicting the Property C Project Approvals comprising the Development Plan D List of Project Conditions 2.18. "Existing General Regulations" means those General Regulations approved by the CITY on or before the Approval Date (irrespective of their Effective Date) and not rescinded or superseded by CITY action taken on or before the Approval Date. 2.19. "Future General Regulations" means those General Regulations adopted or approved by the CITY in any way, after the Approval Date. 2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the CITY on or before the Approval Date as part of the Project Approvals, Project Conditions or the Development Plan. 2.21. "General Plan Amendment" or "GPA" means General Plan Amendment 97 -3(B) amending the General Plan of the CITY as approved by the City Council on , 2000. 2.22. "General Regulations" means all laws, ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and permitted uses of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property and provisions relating to applicable fees, charges, assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO), the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water and sewer connection fee ordinances. General Regulations do not include any CITY ordinance, resolution, code, rule, regulation or official policy identified in or governing the following ( "Governmental Exceptions "): (a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 (except Chapters 15.38 and 15.40) and of the Newport Beach Municipal Code; (b) Property taxes and assessments; (c) The control and abatement of Nuisances (subject to the provisions of Section 3.4); (d) The exercise of the power of eminent domain; 5 1 1i (e) The provision of, or charges for, water, sewer, refuse, police, fire and other municipal services that are generally applicable to all owners or lessees of commercial property in the CITY; and (f) The manner in which property is used that are related to the amount and time of noise from permitted activities, the use of alcohol, and the nature and timing of special events. 2.23. "Governmental Reservations" refers to those actions that CITY may take that may affect the Project or the operation of the Project, as follows: (a) Enforcement of the specific provisions, limitations and restrictions contained in the Project, Project Approvals, Development Plan and Project Conditions; (b) Enforcement of the provisions and conditions of this Agreement; (c) Enforcement of, or pursuant to, Governmental Exceptions or Governmental Reservations; and (d) Enforcement of Existing General Regulations 2.24. "Include" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.25. "OWNER" refers to Koll Center Newport Number A, a California general partnership. 2.26. "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all or a portion of OWNER's interest in the Property is used as security. 2.27. "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY or OWNER. 2.29. "PC Text" refers to the "Koll Center Newport Planned Community Development Plan" as amended by the City Council on the Approval date and any subsequent modification of the PC Text with respect to the Property that are approved by the City Council and to which OWNER consents. Except for the modifications expressly permitted by the terms of this Agreement, OWNER shall be under no obligation to consent to modifications of the PC Text s � 2.30. "Planning Commission" refers to the Planning Commission of the CITY. 2.31. "Project" refers to the existing and proposed development of the Property pursuant to, and consistent with the Project Approvals, consistent with and subject to Project Conditions, and as described in the Development Plan. The Project includes those improvements existing on the Property as of the Approval Date. 2.32. "Project Approvals" refers to all approvals, amendments, permits, licenses, consents, rights and privileges, and other actions required or authorized to be approved, issued or taken by CITY in connection with development of the Property, including but not limited to the following discretionary actions: (a) General Plan Amendment No. 97 -3(B); (b) Zoning Code Amendment No. 898 (Koll Center Newport Planned Community Development Plan); (c) Traffic Study No. 119; and (d) Environmental Impact Report No. 158 (State Clearinghouse No. 99091120). Project Approvals also means any grants of easements, vacations, subdivisions, resubdivisions, lot line adjustments or other actions necessary to the implementation of the Project. Project Approvals also include any and all discretionary or ministerial permits related to construction of the Project including grading permits, building permits, and occupancy permits. 2.33. "Project Conditions" means all conditions to OWNER's right to proceed with Development pursuant to the Project Approvals, including the provisions of this Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by the City Council, conditions to approval of the Traffic Study, conditions to Project Approvals, Existing General Regulations and Governmental Reservations. The Project Conditions are generally described in Exhibit D. 2.34. "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B ". 2.35. "Subsequent Development Permits" means all Project Approvals granted or issued by the CITY subsequent to the Approval Date in connection with development of the Property. 7 2.36. "Vested Entitlement" or "Entitlement" refers to the development rights granted OWNER pursuant to this Agreement and the Project Approvals that are subject to Project Conditions. 3. DEVELOPMENT OF THE PROPERTY 3.1 Development Program. This Agreement vests OWNER's right to proceed with the development described in the Project Approvals and Development Plan. OWNER acknowledges that its right to proceed with the Vested Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants no assurance that OWNER will receive necessary permits or approvals from any other public agency with jurisdiction over the Project or that Project Approvals will not be subject to and affected by legal or other challenges or procedures initiated by third parties. (a) Permitted Uses. The Property shall be used and developed only in the manner provided in the Project Approvals and the Development Plan. CITY acknowledges that, from time to time, OWNER may seek and obtain, in accordance with applicable provisions of State and local law, minor amendments to the Development Plan and the Project Approvals. The Planning Director of the CITY ( "Planning Director') shall determine, subject to appeal by OWNER to the Planning Commission, whether a proposed amendment is a "minor amendment" for purposes of this Agreement. A minor amendment is one that does not increase vehicular trips or other environmental impacts associated with Project Approvals or the Development Plan. (b) Permitted Density of Development. OWNER shall have the vested right to develop the Property and receive the CITY's approval of all Project Approvals consistent with the permitted density and level of intensity authorized by the Project Approvals and as described in the Development Plan. The CITY shall not impose any condition on any Project Approval that reduces the permitted density and level of intensity allowed in the Development Plan and discretionary Project Approvals. CITY acknowledges that the boundaries of the parcels shown on the Development Plan and the Project Approvals are approximate and are subject to minor variation prior to recordation of final map(s) for the Project, provided OWNER complies with the applicable procedures for subdivision maps. CITY may impose standard conditions of approval on any subdivision or resubdivision requested by OWNER so long as the condition(s) do not reduce the permitted density or intensity, or substantially increase the cost of the development, a 133 allowed in the Project Approvals and described in the Development Plan. (c) Maximum Height and Size of Structures. OWNER shall have the vested right to develop the Property with the maximum height and size of structures as set forth in the Development Plan and the Project Approvals. 3.2 Compliance with Project Conditions. OWNER acknowledges that City Council approval of the Project Approvals, the Development Plan and this Agreement is subject to compliance with the Project Conditions. The Project Conditions are, among other things, designed to minimize or eliminate any adverse impacts of the Project and protect and enhance the environment. In certain instances, the Project Conditions exceed those that might otherwise be appropriate under "nexus" and "rough proportionality" tests recently articulated by the courts. By entering into this Agreement, OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any Project Conditions imposed by the CITY after the Effective Date shall be consistent with the Project Approvals, Development Plan and this Agreement. 3.3 Compliance with General Regulations. OWNER shall comply with the Existing General Regulations. Except as otherwise specified in this Agreement, OWNER shall not be obligated to comply with any Future General Regulations that are in conflict with the Development Plan or this Agreement. Any Future General Regulation(s) that are inconsistent with this Agreement and /or the Development Plan and which do not fall within the definition of Governmental Reservations or Governmental Exceptions shall not be applicable to the development or use of the Property. With respect to Existing General Regulations that require the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect on the Approval Date subject to any automatic increases or decreases mandated by the text of the Existing General Regulation as of the Approval Date. OWNER shall, however, comply with: (a) any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan or increase OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether adopted before or after the Approval Date by the CITY, which are in effect at the time applications for specific Project Approvals are submitted. 3.4 Public Health and Safety /Uniform Codes. This Agreement shall not prevent the CITY from adopting, and applying to the Project, Future General Regulations, including Uniform Codes (as referred to above), that are based on recommendations of a multi -state professional organization relating to the specifications for the constructions of improvements ( "Building Codes ") and become applicable throughout CITY. This Agreement shall not prevent the CITY from adopting, and applying to the Project, conditions inconsistent with the Development Plan or Project Approvals, when the conditions are adopted by the City Council after a noticed public hearing and pursuant to a determination by the City Council that the conditions are necessary to abate a public 9 t 1 i nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a determination of Nuisance unless the OWNER has been given notice of, and the right to present evidence at, a public hearing. Any determination of Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must be supported by substantial evidence in the record of the hearing. 4. BENEFITS TO OWNER. 4.1 Right to Develop. During the term of this Agreement, OWNER shall have a vested right to develop, and receive building and occupancy permits for construction on the Property to the full extent permitted by the Project Approvals and the Development Plan subject to the Project Conditions. CITY shall only take action with respect to the Property that complies and is consistent with the Project Approvals and the Development Plan unless OWNER gives its written consent to the action or CITY is permitted to take the action pursuant to this Agreement. OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY shall not impose or increase any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of and, or any other type of exaction) on the Project, except as expressly permitted by this Agreement, Existing General Regulations, Governmental Reservations or Governmental Exceptions. However, CITY may impose or increase a condition or requirement when such action is required (as opposed to permitted) by State or federal law and then only to the minimum extent and duration necessary to comply with State or federal law. Except as otherwise provided by this Agreement, the ordinances, plans, resolutions, and policies governing the permitted use and development of the Property shall be those described in the Project Approvals and the Development Plan. 4.2 Reservations or Dedications of Land. No dedication or reservation of any portion of the Property shall be required of OWNER in conjunction with the application or issuance of any Project Approval except as may be provided in the Project Approvals, Project Conditions, Development Plan or this Agreement. 4.3 No Additional Traffic Related Fees or Conditions. OWNER's satisfaction of the provisions of Article 5 shall be deemed full compliance with all Existing General Regulations, Future General Regulations and CEQA relative to traffic impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or increase the amount of any traffic - related fee, charge, dedication, or improvement relative to, or as a condition to, development of the Project. 4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior boundaries of the Property to the extent, and subject to the same conditions, that capacity is provided to similarly situated commercial property in the CITY. OWNER agrees to accept, during the term of this Agreement, all storm drain inflow from facilities in place as of the Effective Date. 10 13J 4.5 Park Fees. OWNER and CITY acknowledge that the Project may generate some incidental demand for, and usage of, park and open space land within the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter 19.50 of the Newport Beach Municipal Code) and any Existing General Regulation relating to the dedication of land for park or open space purposes or the payment of park or open space fees. 4.6 Future Impact Fees, Conditions, and Exactions. So long as OWNER is not in default under this Agreement, CITY will not impose, or increase the amount of, any impact fee, condition, mitigation measure, or exaction other than as expressly required by the Project Approvals, Project Conditions, Existing General Regulations, the Development Plan, or this Agreement. CITY shall not, without the written consent of OWNER, form, or cause the formation of, any new governmental entity for the purpose of imposing fees, conditions or exactions the CITY could not directly impose pursuant to this Section. CITY may form or cause the formation of an assessment district (or similar vehicle) comprised of the Property and other property in the area for the purpose of funding public improvements that provide a special benefit to the Property. However, CITY may not include the Property in any assessment district formed to fund construction of public improvements that CITY is prohibited from imposing on OWNER because of this Agreement. 4.7 Time for Construction and Completion of Project. OWNER shall have the right to develop the Project in the manner and at the time that OWNER deems appropriate in the exercise of its business judgment. The Parties acknowledge that OWNER cannot predict the timing of the development of the Project because of numerous factors not within the control of OWNER, such as market demand, economic conditions, interest rates and competition. Subject to compliance with the provisions of this Agreement and Project Conditions, OWNER shall, at any time during the term of this Agreement, be entitled to apply for, and receive, Project Approvals consistent with the Development Plan. 4.8 Development Standards. Because the Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the Existing General Regulations and Future General Regulations is neither necessary nor appropriate. The terms and provisions of the Project Approvals, Development Plan or this Agreement shall prevail in the event of any conflict with Existing General Regulations or Future General Regulations. 4.9 Tentative Maps. (a) Improvement Security. As a condition of approving a final subdivision map or any future resubdivision for all or a portion of the Property, the CITY may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to the Municipal Code and the Subdivision Map Act. Nothing in this Agreement shall be construed as altering or relieving OWNER of tt l �U any obligation imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement requirements, exactions or other conditions of approval of a subdivision map, parcel map or lot line adjustment shall be consistent with this Agreement but CITY may impose standard conditions of approval generally applicable to similar projects subject to the provisions Section 3.1(b). (b) Expiration. Any current or future tentative maps for resubdivision of the Property shall expire concurrently with the termination of this Agreement or after the maximum period for the expiration of tentative maps authorized by Government Code § 66452.6, whichever is later. Should the time periods authorized by Government Code § 66452.6 be lengthened after the execution of this Agreement, OWNER shall be entitled to further extensions of any tentative subdivision map applicable to the Property, to the maximum extent authorized by law. (c) Resubdivisions. The Parties acknowledge that resubdivisions, lot line adjustments, or similar modifications may be necessary to develop the Project and are contemplated by this Agreement. These modifications or adjustments shall be approved provided they are in substantial conformance with the Development Plan and the Project Approvals. 4.10 Processing and Issuance of Permits. (a) Processing of Permits. As a material term of this Agreement benefiting OWNER, the CITY shall promptly accept for processing /review, and expeditiously approve, permit applications for the development and use of the Property that are in substantial conformance with the Project Approvals, Development Plan, Existing General Regulations, and this Agreement. (b) Issuance of Ministerial Project Approvals. CITY shall issue to OWNER all necessary use, building, occupancy, and other permits and approvals upon request, provided that applications are submitted in accordance with the Existing General Regulations and are in substantial conformance with the Project Approvals, Development Plan and this Agreement. (c) Vesting of Project Approvals. Any permit, license or approval issued pursuant to this Agreement shall be vested and deemed a Project Approval when granted. 4.11 Future Approvals. The future approval or issuance of any Project Approval that is consistent with the Development Plan, including any permit, license or 12 authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations and similar actions shall not require an amendment of this Agreement 5. PUBLIC IMPROVEMENTS 5.1 Regional Transportation Facilities Fees. OWNER acknowledges that CITY is bound by provisions of ordinances, agreements, rules and regulations related to the financing, construction and operation of major transportation improvements that benefit large areas of Orange County including the Property. OWNER shall comply with the provisions of all such ordinances, agreements, rules and regulations, including the payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers Agreement and /or the Transportation Corridor Agency (collectively, the "TCA "). OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition and /or amount of fees through any procedure adopted or used by the TCA for that purpose. OWNER shall also have the right to commence litigation relative to the amount, method of calculating or timing of any fees or the procedure utilized by the TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless with respect to any loss, damage claim or liability arising out of any litigation commenced by OWNER that is related to this Section. OWNER agrees that satisfaction of the provisions of this Section is a condition to any discretionary or ministerial Project Approval. CITY shall not be required to issue any discretionary or ministerial Project Approval until OWNER provides proof that all fees required to be paid to the TCA, whether pursuant to ordinance, settlement or judgment, have been paid. 5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are based on the one thousand seven hundred and seventy (1770) additional average daily trips generated by the Project multiplied by the current per trip fee of one hundred thirty three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the time specified in Chapter 15.38 of the Code. 5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY for the construction of the circulation system improvements identified in Traffic Study 119 (TPO Improvements). OWNER's contributions to the funding of the TPO Improvements equal or exceed the requirements of the TPO and OWNER's contributions to the funding of the TPO Improvements is in addition to all other fees, charges or contributions required by this Agreement and /or existing General Regulations. OWNER's contribution to the TPO Improvements shall be the sum of seventy thousand dollars ($70,000) to fund construction of a second northbound (MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn lane and the construction of a second northbound (MacArthur) right turn lane at the MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary plans, specifications and cost estimates for the MacArthur Project. The MacArthur 13 Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree intersection as required by the TPO. The MacArthur Project is anticipated to cost one million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution to the MacArthur Project represents four percent (4 %) of the cost of the TPO improvements and has been calculated as specified in the TPO. CITY agrees to provide any supplemental funds necessary to ensure that construction of the MacArthur Project is complete no later than one year after occupancy of any development authorized by the Project Approvals. 5.4 Long Range Traffic Improvements. (a) Introduction. The EIR evaluated the "long term" impacts of the Project on major intersections in Newport Beach and Irvine (Long -range Analysis). The Long -range Analysis assumed construction of all entitlement and all circulation system improvements authorized in the Land Use and Circulation Elements of the Newport Beach General Plan (including the TPO Improvements). The Long -range Analysis also assumed the construction of entitlement and circulation system improvements contemplated for the year 2020 in the Land Use and Circulation Elements of the Irvine General Plan. The Long- range Analysis concluded that the Project would, depending on the construction of the J5 Ramp, have significant long -range adverse traffic impacts on four (4) or five (5) major intersections. The potential cost of mitigating the long -range impacts of the Project on intersections in the airport area could be significant. For example, mitigation of the impact of Project trips on service levels may require the construction of a grade separation and access ramps at the MacArthur /Jamboree intersection. The CITY has prepared conceptual plans for a grade separation at the Jamboree /MacArthur intersection and very preliminary cost estimates indicate that improvement costs, exclusive of right -of -way, could be in the range of fifteen million dollars ($15,000,000) to twenty million dollars ($20,000,000). Moreover, the approval of the Project will result in an increase in average daily trips in the vicinity of the Project that may require other property owners to make improvements pursuant to the TPO that would not be necessary but for the Project. (b) OWNER Commitments. OWNER agrees to do the following: (i) Pay the CITY, within sixty (60) days after the Effective Date, forty -five cents ($.45) per square foot of additional entitlement granted pursuant to the Project Approvals to be used by the CITY solely for the purpose of funding a Planning Study for the Airport Area. (ii) Pay the CITY the sum of eight dollars ($8.00) per square foot of additional entitlement authorized by the Project Approvals 14�� (Mitigation Fee). In the event a building permit is not issued within twelve (12) months after the Effective Date, the amount of the Mitigation Fee shall be increased by fifty cents ($.50) every twelve months after the Effective Date. (c) Payment. OWNER shall pay the Mitigation Fee prior to the issuance of any building permit for the Project. (d) Compliance. OWNER's compliance with the provisions of this Section shall relieve OWNER of any obligation to participate in any circulation system funding program developed and implemented by the CITY including a specific area plan or major thoroughfare program for the airport area. OWNER's compliance with the provisions of this Article shall constitute full and complete satisfaction of any obligation to make or fund, in whole or in part, any CITY circulation system improvement as a condition to development of the Project. 5.5 Fire Station Fee. The EIR concludes that fire suppression service to the Project will not meet CITY response time standards in the event of the closure of OCFA Station 27. CITY has conducted studies of fire service needs in the airport area and options for providing fire suppression and paramedic services consistent with CITY standards. The options for providing fire suppression and paramedic services include the construction, equipping and staffing of a new fire station in the airport area or immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current estimated cost of constructing and equipping a New Fire Station is two million dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site, the construction of the New Fire Station, and /or the equipping /staffing of the station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading or construction on the Property pursuant to this Agreement or any Project Approval. Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire suppression facility impact fee program (Program) for area served by the New Fire Station. 6. SPECIAL PROVISIONS 6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley Bums Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales (Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER directly pays the Tax on all Eligible Transactions. 6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and Use Tax Program (Program) that, at a minimum, has the following components: 15 ) 0 (a) OWNER's commitment to, during the term of this Agreement, maintain a direct pay permit or similar authorization to directly pay Tax on all Eligible Transactions; (b) Procedures that Owner will implement to maximize the amount of Tax paid to the City with respect to construction of the Project; (c) Procedures pursuant to which OWNER will provide City with information identifying all buyers and sellers with whom OWNER and /or OWNER's contractors do business. The Program shall also contain other information relevant to OWNER's compliance with the terms and conditions of this Agreement pertaining to the direct payment of Tax. OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the Revenue Manager of CITY for approval. OWNER shall modify the Program in accordance with any and all reasonable recommendations of the Revenue Manager that are consistent with the intent of this Section. OWNER shall, during the term of this Agreement, fully implement the Program approved by the Revenue Manager. 7. ANNUAL REVIEW. 7.1 CITY and OWNER Responsibilities. Each Party shall review the other Party's good faith substantial compliance with this Agreement once each year (the "Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an annual review statement describing its actions in compliance with this Agreement and the Development Plan. 7.2 Procedure. In connection with the Annual Review, each Party shall have a reasonable opportunity to advise the other of alleged or potential breaches of this Agreement or the Development Plan, to explain the basis for that Party's position, and to receive from the other Party a statement of its position. A Party may issue a written "Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of the Annual Review, that Party concludes that the other Party has not complied in good faith with the terms of this Agreement or the Development Plan. The Party receiving a Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the sixty (60) day period, the Party alleging the non - compliance may pursue the remedies provided in this Agreement. 7.3 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures related to the Project. 16 �-,I1 7.4 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature of the Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign an Estoppel Certificate on behalf of the CITY. 7.5 Failure to Conduct Annual Review. The failure to conduct an Annual Review shall not constitute a Default of either Party or be asserted as a Default by either Party. 8. GENERAL PROVISIONS 8.1 Effective Date. This Agreement shall bind the Parties as of the Approval Date subject to the Adopting Ordinance becoming effective. The Adopting Ordinance shall be deemed effective when ordinances are generally effective pursuant to provisions of the Newport Beach City Charter. 8.2 Term of Agreement. The term of this Agreement (the "Term ") shall begin on the Effective Date and continue for a term of twenty -five (25) years unless otherwise terminated or modified pursuant to this Agreement, or extended pursuant to the provisions and conditions of Section 11. 8.3 Assignment. OWNER has the absolute right to assign its rights and /or delegate its obligations under this Agreement and the Development Plan as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as OWNER owns /leases any part of the Property, OWNER may (at its election) assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by OWNER of the corresponding obligations. Upon any assignment of all or a portion of the Property, OWNER shall be released from all obligations under this Agreement that relate to the portion of the Property being transferred as of the date the assignment is effective. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the Assignee. If an Assignee is in Default, 17 11 � then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii) be a basis for an enforcement action against them. 8.4 Amendment of Agreement. (a) Consent. Subject to the provisions of Subsection 8.4(b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code, the Newport Beach Municipal Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) Amendments. The Parties acknowledge that OWNER may determine that amendments to the Development Plan and /or Project Approvals are appropriate and desirable. In such event, OWNER may apply in writing for an amendment to prior Project Approvals or the Development Plan. CITY shall process and act on the application. CITY shall have no obligation to grant any application that amends the permitted land uses, the overall intensity or density of the Project, or otherwise is an amendment of the Development Plan that could have one or more significant adverse environmental impacts. Any approved amendment shall be incorporated into this Agreement by reference and may be further amended from time to time as provided in this Section. 8.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns, provided, however, in the event of a Default the remedies shall be limited to those specified in Section 10.7. 8.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the term in accordance with Section 8.2; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the CITY to set aside, withdraw, or abrogate the CITY's approval of this Agreement or any material part of the Project or Project Approvals; or (c) The effective date of a Party's election to terminate the Agreement as provided in Section 10.3 of this Agreement. 8.7 Right to Terminate Upon Specified Events. Notwithstanding any other provision of this Agreement, OWNER retains the right to terminate this Agreement upon thirty (30) days written notice to CITY in the event that OWNER reasonably determines that continued development of the Project consistent with the Development Plan has 18 ) �13 become economically infeasible due to changed market conditions, increased development costs, burdens imposed by the CITY or other governmental entity as conditions to future discretionary approvals of the Project consistent with this Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by OWNER to be inconsistent with the Development Plan, or similar factors. 9. CONFLICTS OF LAW. 9.1 Conflict with State and Federal Laws and Regulations. Where State or federal law or regulation prevents compliance with one or more provisions of this Agreement, those provisions shall be modified to the minimum extent necessary to comply with the State or federal laws or regulations, and the modified Agreement shall remain in effect, subject to the following: (a) The CITY shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding, based on substantial evidence in the record of a public hearing where OWNER has notice and an opportunity to present evidence, that the modification is required (as opposed to permitted) by State and federal law or regulation; (b) The modifications must be limited to those required (as opposed to permitted) by the State or federal law or regulation; (c) The modified Agreement must be consistent with the State or federal law or regulation requiring the modification; (d) The intended material benefits of this Agreement must still be received by each of the Parties after modification; and (e) The modification and any applicable local, State, or federal law or regulation does not render the modified Agreement impractical to enforce; 9.2 Controlling Law. This Agreement shall be governed by the laws of the State of California. 10. DEFAULT, REMEDIES AND TERMINATION. 10.1 General Provisions. In the event of a Default the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period then a Default shall be deemed not to 19 )�l exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question is not susceptible of cure within the applicable Cure Period, and the Defaulting Party commences its cure within the Cure Period and diligently pursues the cure to completion. 10.2 Option to Institute Legal Proceedings or to Terminate. The noticing Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the noticing Party intends to terminate the Agreement and the alleged Default is not cured within the Cure Period. The City Council shall, no later than forty -five (45) days after a Notice of intent is served on either Party, hold a public hearing in the manner specified in the Government Code and /or the Municipal Code to consider and review the alleged Default. 10.3 Notice of Termination. After the public hearing described in Section 10.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party. The Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council at the public hearing establishes the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 12.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 10.5 Default by OWNER. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have no obligation to perform any of CITY's obligations under this Agreement (as opposed to the CITY's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of competent jurisdiction. The CITY's election not to perform as permitted by this provision shall not constitute a Default. 10.6 Default by the CITY. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have no obligation to perform any of OWNER's obligations under this Agreement, unless otherwise ordered by a court of law. However, OWNER shall not be entitled to receive Project Approvals or take any other action inconsistent with provisions of the Development Plan, the Newport Beach General Plan, or relevant zoning ordinances unless otherwise permitted by law. OWNER's election not to perform as permitted by this provision shall not constitute a Default. 10.7 Specific Performance. 20 J� 5 (a) The Parties agree that, except as provided in Subsection 9.7.b., the loss by either of them of their respective rights under this Agreement would not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and /or injunctive relief. (b) Notwithstanding the foregoing, in the event any development fees or taxes are imposed on development of the Property other than those authorized pursuant to this Agreement or the Development Plan, OWNER shall be entitled to recover from CITY restitution of all improperly assessed fees or taxes, together with interest thereon at the maximum allowable non - usurious rate from the date such sums were paid to CITY to the date of restitution. 10.8 Effect of Termination. The termination of this Agreement shall not affect the rights, duties and obligations of the any successor to OWNER to comply with the provisions of Section 5.3. 11. ENCUMBRANCES AND RELEASES ON PROPERTY. 11.1 Discretion to Encumber. This Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvements. 11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon written request to CITY, be entitled to receive from CITY written notification of any default by Owner of the performance of OWNER's obligations under this Agreement which has not been cured within thirty (30) days following the date of the Notice of such default. (a) Notwithstanding OWNER's default, this Agreement shall not be terminated by CITY as to any Mortgagee to whom Notice is to be given and to which either of the following is true: (i) The Mortgagee cures any default by OWNER involving the payment of money within sixty (60) days after the Notice of default; provided, however, that if any such default cannot, with diligence, be cured within the sixty (60) day period, then the Mortgagee shall have additional time as may be reasonably necessary to cure the default if the Mortgagee commences the cure within the sixty (60) day period and diligently pursues the cure to completion. 21 ) �1 (ii) As to defaults requiring title or possession of all or a portion of the Property to cure: (i) the Mortgagee agrees in writing, within sixty (60) days after receipt from CITY of the written Notice of default, to perform the proportionate share of OWNER's obligations under this Agreement allocable to that part of Property in which the Mortgagee has an interest conditioned upon the Mortgagee's acquisition of the required portion of the Property by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the Mortgagee commences foreclosure proceedings to reacquire title to the Property or applicable portion thereof within the sixty (30) days and thereafter diligently pursues foreclosure to completion; and (iii) the Mortgagee promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event of any Mortgagee records a Notice of default as to its mortgage or deed of trust, CITY shall consent to the assignment of all of OWNER's rights and obligations under this Agreement to the Mortgagee or to any purchaser of OWNER's interest at a foreclosure or trustee sale and OWNER shall remain liable for such obligations unless released by CITY or unless the applicable portion of OWNER's Property is transferred. (b) Notwithstanding Subsection 11.2.a. of this Agreement, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving OWNER, the times specified in Subsection 11.2.a of this Agreement for commencing or prosecuting foreclosure or other proceedings shall be tolled during the period of the prohibition. (c) OWNER's execution or breach of this Agreement shall not defeat, render invalid, diminish or impair the lien of any existing or future mortgage or deed of trust on OWNER's Property made in good faith and for value. 11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no Mortgagee shall have an obligation or duty under this Agreement to perform the obligations of OWNER or other affirmative covenants of OWNER or to guarantee such performance. No Mortgagee shall be liable for any Default or monetary obligations of OWNER arising prior to acquisition of title to the Property by the Mortgagee or their respective successors or assigns. However, to the extent any covenant to be performed by OWNER is a condition to the performance of a covenant by CITY, the performance shall continue to be a condition precedent to CITY's performance. In the event a Mortgagee elects to develop the Property in accordance with the Development Plan, the Mortgagee shall be required to assume and perform the obligations or other affirmative covenants of OWNER under this Agreement. 22 ��� 12. MISCELLANEOUS PROVISIONS. 12.1 Notices. All Notices shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; and, (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt. Notices shall be addressed as follows: To the CITY: City Manager - City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Manager To OWNER: Koll Center Newport Number A 4343 Von Karman Ave. Newport Beach, CA 92660 Attn: Don Koll CC: Starpointe Ventures Either party may give the other a "Notice of a New Address" to modify this Subsection. 12.2 Enforcement Delay; Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non - performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities other than CITY, suspension of rights in accordance with the existence of unforeseen circumstances, governmental moratorium other than a moratorium enacted by CITY, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon, but in no case shall the extension of time for performance exceed six (6) months. 12.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the prior intent of the Parties and the Party substantially benefited by the material provision does not waive its rights under the unenforceable 23 1 �� J provisions, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 5 are deemed "material ". 12.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter. This Agreement supersedes all negotiations and previous offers and understandings between the Parties regarding the subject matter. 12.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything that has the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to obtain any permits from other public agencies that may be required for development of the Project. OWNER may challenge any ordinance, measure, moratorium, or other limitation in a court of law if litigation is necessary to protect the development rights vested in the Property pursuant to this Agreement. 12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably be relying on CITY's performance of its covenants in this Agreement when OWNER invests money and effort in construction of the Project. 12.10 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute documents, with acknowledgment or affidavit if reasonably required, and take any other action reasonably necessary to implement the terms and conditions of this Agreement or permit development of the Project in accordance with the Development Plan. 12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and assigns of the Parties. 12.12 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the Sections and Subsections are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement does not, and is not intended to, impermissibly contract away the police power, legislative authority or governmental functions of the CITY in general or with respect to the Property. 24 11 d 12.13 Authority to Execute. The person executing this Agreement on behalf of OWNER warrants and represents that he /she has the authority to do so and the authority to bind OWNER to the performance of OWNER's obligations under this Agreement. 12.14 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not be unreasonably withheld. 12.15 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 12.16 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the CITY and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement s is a ministerial act and the failure of the CITY to record the Agreement as required by this Section and Government Code § 65868.5 does not make the Agreement void or ineffective. 12.17 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California. 12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 12.19 Relationship of the Parties. The contractual relationship between CITY and OWNER arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of any legal action filed and prosecuted by any person or entity other than the Parties that challenges the validity or manner of approval of this Agreement, the Project Approvals or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and hold harmless the CITY and its officers and employees with respect to any costs, expenses, judgment, damages or award, including an award of attorney fees and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER acknowledges and agrees that CITY has fully complied with all applicable statutes, ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and Existing 25 ) 50 General Regulations in the initiation, processing, evaluation and approval of all Project Approvals. OWNER's obligations pursuant to this Section shall commence as of the Approval Date and continue for the period specified in Section 8.2 or until this Agreement terminates, whichever occurs first. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of the CITY or its officers or employees that occurred on or before the Approval Date. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud, willful misconduct or violation of law by the CITY or its officers and employees that occurs after the Approval Date. 12.21 Payments. Any payment due pursuant to this Agreement shall bear interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date due until paid with interest compounded monthly. Dated: 2000 CITY OF NEWPORT BEACH In Mayor Dated: 2000 KOLL CENTER NEWPORT NUMBER A am 26 1 5l ATTACHMENT G: DRAFT GENERAL PLAN AMENDMENT RESOLUTION RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A GENERAL PLAN AMENDMENT TO INCREASE THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [GPA 97 -3(B)] WHEREAS, pursuant to Section 65300 of the California Government Code, the City of Newport Beach has adopted a comprehensive, long -term General Plan for the physical development of the City; and WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet; and WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with the California Environmental Quality Act (CEQA) to address the environmental impacts of the subject amendments. The EIR, comments on the EIR, and responses to those comments were reviewed by the City Council and certified as complete, reflecting the independent judgment of the City of Newport Beach; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the General Plan Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the General Plan Amendment was considered. A notice of time, place and purpose of the public i �7 hearing was duly given and testimony was presented to and considered by the City Council at the public hearing; and WHEREAS, the City Council of the City of Newport Beach hereby finds as follows with regard to GPA 97 -3(B): 1. The project consists of the intensification of office development on a project site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. Since the project site is located in proximity to residential areas, the additional employment opportunities resulting from construction of a new 250,000 square -foot office tower on the site would contribute to a more desirable jobs - housing balance in the area. Therefore, the project is consistent with Policy A of the General Plan Land Use Element. 2. The intent of Policy B of the Land Use Element is to establish limits on land use intensity in order to insure that the City's circulation system operates at an acceptable level of service. Provisions to implement this policy, such as the Traffic Phasing Ordinance and development limits, have been incorporated into the Municipal Code. The proposed project is subject to these provisions and has been reviewed under them in the EIR. The EIR traffic study indicates that the proposed project will generate a significant increase in the number of vehicle trips through major intersections, including MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, where no feasible mitigation measures have yet been identified. However, the project will provide for both direct intersection improvements and the payment of traffic mitigation fees. Such fees will be available for the mitigation of impacts at the above intersections when feasible improvements are identified. Therefore, the project is consistent with Policy B. 3. The site of the new office tower is set back substantially from both MacArthur Boulevard and Jamboree Road in order to mitigate visual impacts from public streets. One of the new parking structures will be located close to the intersection of MacArthur and Jamboree. However, this two -level structure will be depressed partially below grade and the perimeter of the structure will be heavily landscaped in order to soften public views. Additionally, the existing two -level parking structure just north of the existing twin ten -story office towers will be replaced with a new six -level structure located 200 2 feet further back from Jamboree and 50 feet further back from MacArthur than the existing structure. Per design standards added to the PC text, both new parking structures will be textured and landscaped to soften their visual impacts. Therefore, the project is consistent with Policy D of the Land Use Element. 4. The PC District Plan, i.e. the KCN Planned Community text, contains extensive landscaping standards for different building heights. The PC text also contains detailed standards for parking, signs and other development standards. Therefore, the project is consistent with Policy F of the Land Use Element. 5. The amendment will retain compatibility between land uses in that it will allow intensification of office development on a site that is already designated for and substantially developed in Administrative, Professional and Financial Commercial use. NOW THEREFORE BE IT RESOLVED, that: 1. The City Council hereby adopts, by reference, the CEQA- required "Statement of Findings ", attached as Exhibit "EIR -3" to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations ", attached as Exhibit "EIR -4" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby finds that the benefits override the identified adverse environmental impacts. 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -5" to the resolution certifying 1�1 3 the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MMRP. 4. In light of the preceding findings and actions, the City Council hereby approves GPA 97 -3(B), consisting of the increase in gross building square footage allowable in Office Site B as specified in Exhibit "GP -1 ", attached hereto. ADOPTED this 26`h day of June, 2001 by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS fu /.Wel 7 ATTEST: CITY CLERK 4 �� EXHIBIT GP -1: REVISIONS TO LAND USE ELEMENT TEXT (GENERAL PLAN AMENDMENT 97 -3(B)) IN THE SECTION OF THE LAND USE ELEMENT TEXT ENTITLED "AIRPORT AREA (STATISTICAL AREA L4) ". Amend Paragraph 1 -2, "Office Site B ", to read as follows (deletions area): "This site is designated for Administrative, Professional and Financial Commercial land use and is allowed 1,060, 99 1,310,898 sq.ft. Support retail commercial uses are allowed within this allocation. [GPA 97- 3(B)]" 2. Amend the table entitled "Estimated Growth FOR STATISTICAL AREA LA" to reflect the preceding increase in gross floor area for KCN Office Site B. 7 c, ATTACHMENT 7: DRAFT ZONING AMENDMENT ORDINANCE 1�� ORDINANCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING A ZONING AMENDMENT INCREASING THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [ZONING AMENDMENT 9051 WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan Amendment and a Zoning Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B to a total of 1,201,349 net square feet while eliminating restaurant and retail- service uses; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after considering the evidence and arguments submitted by the City staff, Developer, and all interested parties, adopted a resolution recommending that the City Council approve the Zoning Amendment; and WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the Zoning Amendment, the recommendation of the Planning Commission, and the evidence and arguments submitted by the City staff, Developer, and all interested parties A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After reviewing the EIR, all comments received during the public review process, and all responses to those comments, the City Council has certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. All records pertaining to preparation, review, and comment on the EIR are retained in the Planning Department of the City of Newport Beach. SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning Amendment 905: 1. The amendment is consistent with the General Plan in that it provides for an increase in square footage commensurate with that allowed by the accompanying General Plan Amendment. 2. The internal consistency of the Planned Community text will be retained in that all development square footages and open space acreages have been adjusted to retain appropriate development and open space percentages. SECTION 3: ZONING AMENDMENT. 1. The City Council hereby adopts, by reference, the CEQA - required "Statement of Findings ", attached as Exhibit "EIR -Y to the resolution certifying the project Environmental Impact Report (EIR). The Statement of Findings constitutes a set of binding obligations effective upon this project approval. Pursuant to Section 15091 of the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the project, the mitigation measures required to avoid or substantially lessen each of those impacts, and the "substantial evidence in the record" supporting the finding of each such impact which will be avoided or substantially lessened. 2. The City Council hereby adopts, by reference, the "Statement of Overriding Considerations ", attached as Exhibit "EIR -4" to the resolution certifying the project Environmental Impact Report. The EIR identifies certain environmental impacts of the project which cannot be avoided or substantially lessened. The City Council has balanced these significant adverse environmental impacts against environmental benefits and other benefits resulting from approval of the proposed Project, which are identified in the Statement of Overriding Considerations, and hereby finds that the benefits override the identified adverse environmental impacts. 2 0 1 3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and Reporting Program" (MMRP), attached as Exhibit "EIR -5" to the resolution certifying the project Environmental Impact Report, and directs that mitigation measures be implemented in accordance with the MMRP. 4. In light of the preceding findings and actions, the City Council hereby approves Zoning Amendment 905, consisting of the amendments to the Koll Center Newport Planned Community Development Standards specified in Exhibit "ZA -1 ", attached hereto, subject to the mitigation measures identified in the Environmental Impact Report and listed in Exhibit "EIR -5" as conditions of approval of the Zoning Amendment, as stipulated in Exhibit "ZA -1 ". SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on June 26, 2001 and adopted on July 10, 2001 by the following vote, to wit: 3 I( J AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CFrY CLERK 0 1 (o u< EXHIBIT ZA -1: KOLL CENTER NEWPORT PLANNED COMMUNITY TEXT AMENDMENT (AMENDMENT NO. 905) The Planned Community Development Standards for Koll Center Newport is amended as set forth following, with deletions shown stRickove. and additions shown double underlined ( "TBD" = amendment footnote number to be determined): Page 1: DEVELOPMENT CONSIDERATIONS First Two Paragraphs: [No changes] Insert New Third Paragraph: "All development and land use within the Kell Center Newport Planned Community shall be subject to implementation of the mitigation measures specified in the applicable Environmental Impact Report Mitigation Monitoring and Reporting Program (MMRP) for that project and/or land use (including, but not limited to, the MMRP related to EIR No. 158 for the Kell Office Site B expansion project)" (TBD) Remainder of Section on [No changes] "DEVELOPMENT CONSIDERATIONS" Pages 14 -16: PART II. COMMERCIAL Section I. Site Area and Building Area Interior noise shall be mitigated to the levels prescribed in the Airport Environs Land Use Plan and the City of Newport Beach General Plan Noise Element. Also, rooftop obstruction lighting shall be provided for buildings ten stories or higher in accordance with Federal Aviation Administration standards. Group I. PROFESSIONAL & BUSINESS OFFICES Acreages shown are net buildable land area, including landscape setbacks with property lines. (4) A. Building Sites [No changes] B. Allowable Building Area i1,01 C. Note: Building areas shown in this Part II are net floor areas, excluding non - habitable space such as equipment rooms, elevator shafts, stairwells, etc. (Net floor areas shall generally be taken as 95 percent of gross floor area.) Site A: 340,002 square feet (16) Site B: 903,549 1,201,349 square feet (13)(16) (TBD) Site C: 674,800 square feet (10)(15) Site D: 240,149 square feet (8)(13) Site E: 32,500 square feet (4) Site F: 24,300 square feet (4) Site G: 45,000 square feet (8) '',', 2,558,100 square feet (15) (TBD) Statistical Analysis (4) The following statistics are for information only. Development may include but shall not be limited to the following: Story heights shown are average heights for possible development. The buildings within each parcel may vary. Assumed Parking Criteria: a. [No changes] b. lieu (1) ....ee Per 300 S,,..,._„ Coot of not building area n 120 e for cite, n n and C. For Sites A, B and C, the Parking Pool Exception of Part III, Section I -B shall apply: (11) (TBD) For the first 125,000 square feet, parking shall be provided at one space per 250 square feet of net floor area. For the next 300,000 square feet, parking shall be provided at one space per 300 square feet of net floor area. For any additional floor area, parking shall be provided at one space per 350 square feet of net floor area. C. Parking structures within commercial and office sites shall incorporate the following design features in order to soften their visual impacts: • The sides of parking structures open to public view shall be textured and colored or faced with brick or other material consistent with the structure's associated buildings Exposed uncolored concrete sides shall be avoided C 2 �� Site A 2. Site B • Linear planters and/or trellises with shrubs and cascading vines shall be provided along the outside of parking levels visible from public roadways. For the two -level parking structure in Office Site B nearest the intersection of MacArthur boulevard and Jamboree Road. trees within planters and/or trellis structures with trailine vines shall be provided within the interior of the too narking level. Also, the finish evade of the top level of this parking structure shall substantially match and follow the pre - existing surface evade and shall not extend more than two feet above the pre - existing surface grade at any point In Office Site B. in order to ensure implementation of the preceding design features, site, grading, landscape, and architectural plans for both parking structures in that Site shall be submitted by the developer to the Planning Commission for review and approval prior to the issuance of any building permits. These plans shall conform to the preceding design requirements and the applicable development agreement. [No changes] Allowable Building Area: 963,849 1,201,349 net square feet (13)(16) (TBD) Site Area: 43.703 acres (4)(11) a. Building Height Land Coverage (16) (TBD) Two story development ............ 11 06 13.93 acres Three story development ...............738 9.29 acres Four story development ............... 6.97 acres Five story development ............... 5.57 acres Six story development .............. 3-.W 4.64 acres Seven story development .............. 3 --- 1.6 3.98 acres Eight story development ............... 3.48 acres Nine story development .............. 2.46 3.10 acres Ten story development .............. . 2.79 acres Eleven story development .............. ..8� 2.53 acres Twelve story development .............. 4-54 2.32 acres b. Parking Land Coverage (I 1)(13)(16)(TBD) 3,719 cars ................ 19.35 acres 1 V 1� Group V c. Landscaped Open Space Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development 1) Land Coverage (11)(13)(16)(TBD) ............... 10.42 acres .............. 9.35 15.06 acres ............ 1 1,49 17.38 acres ............ 13 59 18.78 acres ............ 13.24 19.71 acres ............ 114:7 20.37 acres ............ 14.16 20.873 acres ............4447 21.25 acres ............ 14 72 21.56 acres ............ 44:42 21.82 acres ............ 13 99 22.03 acres [No changes in remainder of Paragraph C] Pages 2I -24. RESTAURANTS (1)(4) A. Building Sites Maximum acreages for Site 2 shall not exceed 1.25 (18) acres. Maximum acreage for Site 3: 1.765 acres. Maximum acreages for Sites 4 and 5 shall not exceed 3.0 acres. Maximum acreage for Sites 6 and 7 shall not exceed 2.2 acres. (8) (The following acreages are for information only.) Site 1 Deleted (see Group VII) (18) Site 2 1.25 aeres transferred to office use (TBD) Site 3 1.765 acres Site 4 1.50 acres Site 5 1.50 acres Site 6 1.50 acres (8) Site 7 0.70 acres (8) 8.215 6.965 acres (TBD) Site 1 Deleted see Group VII Private Club (18) Site 3 located within Office Site "F". (4) Sites 2, 4 and 5 located within Office Site "B ". (4) (16) (TBD) Sites 6 and 7 located within Office Site "G ". (8) Any portion or all of the restaurant, bar, theater /nightclub acreage for Sites 2, 4, 5, 6, or 7 not utilized for that purpose shall revert to professional and business office use. Any portion or all of the restaurant acreage for Site 3 not utilized for that purpose shall revert to either professional and business office use or service station use.(4)(8) (18) The following statistics are for information only. Development may include but shall not be limited to the following: 4 B. Building Area (4) Site 2 3,998 sq. ft. 0. 11 0.22 acres Site 3 10,000 sq. ft. Site 4 7,000 sq. ft. 0.16 acres Site 5 7,000 sq. ft. 0.16 acres Site 6 (8) 7,000 sq. ft. 0.16 acres Site 7 (8) 3,000 sq. ft. 0.07 acres 39,999 sq. ft. 34,000 sq. ft. 9.88 aeres 0.78 acres(8)(18)(TBD) C. Parking Criteria: 300 occupants/ 10,000 sq. ft. 1 space /3 occupants and 120 cars per acre. Site 2 38 0.42 -aeres 0.84 acres Site 3 ears 100 cars Site 4 70 cars 0.58 acres Site 5 70 cars 0.58 acres Site 6 (8) 70 cars 0.58 acres Site 7 (8) 30 cars 0.25 acres 340 cars 2.83 acres(8)(18)(TBD) D. Landscaped Open Space (4) Site 2 0.72 aeres acres Site 3 0.70 Site 4 0.76 acres Site 5 0.76 acres Site 6 (8) 0.76 acres Site 7 (8) 0.38 acres 4.98 3.36 acres (8)(18)(TBD) E. Building Height Building height of structures shall be limited to a height of thirty -five (35) feet. Group VI. RETAIL & SERVICE CENTER A. Building Sites (4) (5) (TBD) Site 1: 5.026 acres Site 2: 1,389 aeres 6.526 5.026 acres 5 1 B. Allowable Building Area (5) (TBD) *Retail Site No.1 (sq. ft.) 102,110 sq. ft. (14) %ef$i1 -9 N 0.2 (S q. ft.) 19,090 sq. ft [No changes in remainder of Paragraph B.] C. Landscape Area (5) Twenty -five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 shall be developed as landscape area. If twenty -five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 is not developed as landscape area, a specific site plan shall be submitted to the City of Newport Beach Planning Commission for approval prior to the issuing of a building permit. D. Statistical Analysis (5) The following statistics are for information only. Development may include but shall not be limited to the following. Assumed parking criteria: One (1) space per 200 square feet of net building area at 120 cars per acre. Site 1 [No change] 2. Site 2 (TBD) E. Building Height Building height of structures shall be limited to a height of thirty -five (35) feet above mean existing grade as shown on Exhibit `B ". (5) M )ja Page 52: [In PART VI, Add the following amendment footnote.] (TBD) Planned Community Text revisions (Amendment No.905, adopted Ordinance ) including the following changes: a. Increase the allowable building area in Professional and Business Office Site `B" by 237,500 net square feet. b. Convert Restaurant Site 2 (5,000 net square feet) to professional and business office use within Office Site `B ". C. Convert Retail and Service Center Site 2 (10,000 net square feet) to professional and business office use within Office Site `B ". 7 rl� ATTACHMENT 8: FISCAL IMPACT ANALYSIS [Distributed separately due to bulk. Available for public review at the City's Planning Department] ni 1'J ATTACHMENT 9: RESOLUTION FOR PROJECT DENIAL 1�� RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING GENERAL PLAN AND ZONING AMENDMENTS TO INCREASE THE MAXIMUM ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL CENTER NEWPORT PLANNED COMMUNITY [GPA NO. 97 -3(B) AND ZONING AMENDMENT NO. 9051 WHEREAS, pursuant to Section 65300 of the California Government Code, the City of Newport Beach has adopted a comprehensive, long -term General Plan for the physical development of the City; and WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine, California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22- 24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and WHEREAS, the proposed General Plan Amendment would increase the allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross square feet. The proposed Amendment to the Koll Center Newport Planned Community text would increase the maximum allowable building floor area in KCN Office Site B; and WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with the California Environmental Quality Act (CEQA) to address the environmental impacts of the subject amendments, which EIR was reviewed by the Planning Commission and, by separate resolution, forwarded to the City Council with a recommendation for certification as complete; and WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning Commission held a public hearing, at which time the proposed amendments were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the Planning Commission at the public hearing; and 11� WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the proposed amendments were considered. A notice of time, place and purpose of the public hearing was duly given and testimony was presented to and considered by the City Council at the public hearing; NOW THEREFORE BE IT RESOLVED, the City Council of the City of Newport Beach finds, based upon the entire record including the findings contained within the Environmental Impact Report, that the increased development intensity of the proposed project will create environmental impacts, some of which cannot be mitigated to a less than significant level. NOW THEREFORE BE IT FURTHER RESOLVED, that the City Council hereby denies General Plan Amendment No. 97(3) -B and Zoning Amendment No. 905. ADOPTED this 26th day of June, 2001 by the following vote, to wit: AYES: NOES: ABSENT MAYOR ATTEST: CITY CLERK 0 Igb Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH _►1 KOLL CENTER NEWPORT NUMBER A Approved ,2001 Ordinance No. 00- F: \users \cat\ shared \Burnham \Koll \DA062601.doc DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is executed as of 2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and KOLL CENTER NEWPORT NUMBER A ( "OWNER "). 1. RECITALS. 1.1 Property /Ownership Status. OWNER owns all of the real property ( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of approximately five (5) acres. 1.2 Planning Status. The Property comprises a portion of Office Site B" known as "Professional and Business Office Site B" of the Koll Center Newport Planned Community, which is currently entitled with approximately one million (1,000,000) square feet of office development. 1.3 Proiect. OWNER has asked CITY to approve a general plan amendment, zoning amendment and related permits that would authorize the construction of approximately two hundred and thirty -five thousand (235,000) square feet of additional office use on the Property. 1.4 Hearings. The Newport Beach Planning Commission (Planning Commission) and the Newport Beach City Council_ (City Council) have conducted all required public hearings on the Project and certified an Environmental Impact Report for the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance with applicable provisions of State law and the Newport Beach Municipal Code. 1.5 General Findings. The Planning Commission and City Council have determined that the Project and all Project Approvals are consistent with all elements of the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the CEQA Guidelines. The Project and all Project Approvals are also consistent with all other relevant plans, policies, ordinances, resolutions and regulations of the CITY. 1.6 Affordable Housing. The CITY and OWNER have determined that the Project does not constitute a residential development subject to the terms and conditions of the CITY's Housing Element. Accordingly, no present or subsequently enacted affordable housing requirement or housing in lieu fee shall be required of OWNER. 1.7 Purpose of Agreement. The purposes of this Agreement are as follows: F:\users\cat\shared\Burnham\Koll\DA062601.doc (a) To provide for the orderly completion of development of the Property consistent with the Project Approvals, Project Conditions and this Agreement. (b) To provide the CITY and OWNER with certainty that the Project will be developed and maintained as contemplated by the Project Approvals, Project Conditions and the Development Plan. (c) To provide assurance to OWNER that OWNER may proceed with the Project, subject to compliance with Project Conditions, in accordance with the laws, policies, rules, ordinances, resolutions and regulations of the CITY in effect as of the Approval Date. (d) To strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic cost of development, mitigate the impacts of development, and provide public benefits in excess of those normally secured through the planning process. 1.8 Authorization. This Agreement is authorized by, and is consistent with, the provisions of §§ 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.9 Police Power. The City Council has determined that this Agreement: (a) Is in the best interests of the health, safety and general welfare of the CITY, its residents and the public; (b) Was entered into pursuant to, and is a valid exercise of, the CITY's police power; and (c) Has been approved in accordance with the provisions of State and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On , 2001, after giving appropriate notice and holding all appropriate public hearings, the City Council conducted the first reading of Ordinance No. authorizing the CITY to enter into this Agreement. The City Council approved the Adopting Ordinance on , 2001, after giving appropriate notice and holding all appropriate public hearings. The Adopting Ordinance shall be considered effective as specified in Section 8.1. 1.11 CEQA Review. The City Council has independently reviewed, approved and certified the EIR for the Project. In so doing, the City Council determined, among other things, that the EIR was prepared in full compliance with CEQA and the CEQA Guidelines. The City Council also adopted all feasible mitigation measures, made 3 appropriate findings and adopted a statement of overriding considerations with respect to any significant effect that could not be mitigated to a level of insignificance. The City Council also adopted a Mitigation Monitoring Program for the Project as required by CEQA and the CEQA Guidelines. 2. DEFINITIONS. 2.1. "Adopting Ordinances" refers to: (a) Ordinance No. 2001- adopted by the City Council on 2001, approving Zoning Amendment No. 905 and this Agreement; (b) Resolution No. 2001- adopted by the City Council on 2001, approving GPA 97 -3(B); (c) Resolution No. 2001- adopted by the City Council on , 2001, approving Traffic study No. 119 and making findings pursuant to Chapter 15.40 of the Code; (d) Resolution No. 2001- adopted by the City Council on , 2001 certifying the EIR as fully compliant with CEQA and the CEQA Guidelines, adopting all feasible mitigation measures, and containing the statement of overriding considerations. 2.2. "Agreement" refers to this Development Agreement. 2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith compliance with this Agreement, as set forth in Section 7. 2.4 "Approval Date" means 2001, the date on which the City Council approved the Adopting Ordinances. 2.5 "Assign" means all forms of use of the verb "assign" and the nouns "assignment" and "Assignee" shall include all contexts of hypothecation, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California. 2.7 "CITY" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the CITY. 0 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Article 10. 2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while an "OWNER Default" refers to a Default by OWNER. 2.12. "Develop" means all forms of use of the verb "develop" and the noun "Development ", whether or not capitalized, means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and parking facilities and improvements. "Develop" or "Development" also includes the maintenance, repair, alteration, reconstruction or redevelopment of any building, structure, improvement, landscaping or facility after the initial construction and completion so long as consistent with the Project Approvals, the Development Plan and this Agreement. "Develop" or "Development" also includes the use of the Property in a manner consistent with the permitted general, primary, and secondary uses as set forth in the PC Text and the Development Plan. 2.13. "Development Plan" means and constitutes the plan for the development of the Property, as embodied and stated in the Project Approvals, Project Conditions and this Agreement. 2.14. "Effective Date" shall be the date this Agreement becomes effective as specified in Section 8.1. 2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No. 99091120) prepared for the Project and certified as fully compliant with CEQA and the CEQA Guidelines by the CITY Council on the Approval Date. 2.16. "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 7.4. 2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are as follows: Exhibit: Description: A Legal Description of the Property B Map depicting the Property 5 C Project Approvals comprising the Development Plan D List of Project Conditions 2.18. "Existing General Regulations" means those General Regulations approved by the CITY on or before the Approval Date (irrespective of their Effective Date) and not rescinded or superseded by CITY action taken on or before the Approval Date. 2.19. "Future General Regulations" means those General Regulations adopted or approved by the CITY in any way, after the Approval Date. 2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the CITY on or before the Approval Date as part of the Project Approvals, Project Conditions or the Development Plan. 2.21. "General Plan Amendment" or "GPA" means General Plan Amendment 97 -3(B) amending the General Plan of the CITY as approved by the City Council on , 2001 if and when approved by the voters pursuant to Section 423 of the City Charter. 2.22. "General Regulations "means all laws, ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and permitted uses of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property and provisions relating to applicable fees, charges, assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO), the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water and sewer connection fee ordinances. General Regulations do not include any CITY ordinance, resolution, code, rule, regulation or official policy identified in or governing the following ( "Governmental Exceptions "): (a� The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 (except Chapters 15.38 and 15.40) and of the Newport Beach Municipal Code; (b) Property taxes and assessments; (c) The control and abatement of Nuisances (subject to the provisions of Section 3.4); (d) The exercise of the power of eminent domain; (e) The provision of, or charges for, water, sewer, refuse, police, fire and other municipal services that are generally applicable to all owners or lessees of commercial property in the CITY; and (f) The manner in which property is used that are related to the amount and time of noise from permitted activities, the use of alcohol, and the nature and timing of special events. 2.23. "Governmental Reservations" refers to those actions that CITY may take that may affect the Project or the operation of the Project, as follows: (a) Enforcement of the specific provisions, limitations and restrictions contained in the Project, Project Approvals, Development Plan and Project Conditions; (b) Enforcement of the provisions and conditions of this Agreement; (c) Enforcement of, or pursuant to, Governmental Exceptions or Governmental Reservations; and (d) Enforcement of Existing General Regulations 2.24. "Include" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.25. "OWNER" refers to Koll Center Newport Number A, a California general partnership. 2.26. "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all or a portion of OWNER's interest in the Property is used as security. 2.27. "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY or OWNER. 2.29. "PC Text" refers to the "Koll Center Newport Planned Community Development Plan" as amended by the City Council on the Approval date and any subsequent modification of the PC Text with respect to the Property that are approved by the City Council and to which OWNER consents. Except for the modifications expressly permitted by the terms of this Agreement, OWNER shall be under no obligation to consent to modifications of the PC Text 2.30. "Planning Commission" refers to the Planning Commission of the CITY. 7 2.31. "Project" refers to the existing and proposed development of the Property pursuant to, and consistent with the Project Approvals, consistent with and subject to Project Conditions, and as described in the Development Plan. The Project includes those improvements existing on the Property as of the Approval Date. 2.32. "Project Approvals" refers to all approvals, amendments, permits, licenses, consents, rights and privileges, and other actions required or authorized to be approved, issued or taken by CITY in connection with development of the Property, including but not limited to the following discretionary actions: (a) General Plan Amendment No. 97 -3(B); (b) Zoning Code Amendment No. 898 (Koll Center Newport Planned Community Development Plan); (c) Traffic Study No. 119; and (d) Environmental Impact Report No. 158 (State Clearinghouse No. 99091120). Project Approvals also means any grants of easements, vacations, subdivisions, resubdivisions, lot line adjustments or other actions necessary to the implementation of the Project. Project Approvals also include any and all discretionary or ministerial permits related to construction of the Project including grading permits, building permits, and occupancy permits. 2.33. "Project Conditions" means all conditions to OWNER's right to proceed with Development pursuant to the Project Approvals, including the provisions of this Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by the City Council, conditions to approval of the Traffic Study, conditions to Project Approvals, Existing General Regulations and Governmental Reservations. The Project Conditions are generally described in Exhibit D. The term Project Conditions does not included the requirement for voter approval pursuant to Section 423 of the City Charter. 2.34. "Pro a refers to the real property described on Exhibit "A" and depicted on Exhibit "B ". 2.35. "Subsequent Development Permits" means all Project Approvals granted or issued by the CITY subsequent to the Approval Date in connection with development of the Property. 2.36. "Vested Entitlement" or "Entitlement" refers to the development rights granted OWNER pursuant to this Agreement and the Project Approvals that are subject to Project Conditions. M 3. DEVELOPMENT OF THE PROPERTY 3.1 Development Program. Upon the Effective Date, this Agreement vests OWNER's right to proceed with the development described in the Project Approvals and Development Plan. OWNER acknowledges that its right to proceed with the Vested Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants no assurance that OWNER will receive necessary permits or approvals from any other public agency with jurisdiction over the Project or that Project Approvals will not be subject to and affected by legal or other challenges or procedures initiated by third parties. (a) Permitted Uses. The Property shall be used and developed only in the manner provided in the Project Approvals and the Development Plan. CITY acknowledges that, from time to time, OWNER may seek and obtain, in accordance with applicable provisions of State and local law, minor amendments to the Development Plan and the Project Approvals. The Planning Director of the CITY ( "Planning Director ") shall determine, subject to appeal by OWNER to the Planning Commission, whether a proposed amendment is a "minor amendment" for purposes of this Agreement. A minor amendment is one that does not increase vehicular trips or other environmental impacts associated with Project Approvals or the Development Plan. (b) Permitted Density of Development. OWNER shall have the vested right to develop the Property and receive the CITY's approval of all Project Approvals consistent with the permitted density and level of intensity authorized by the Project Approvals and as described in the Development Plan. The CITY shall not impose any condition on any Project Approval that reduces the permitted density and level of intensity allowed in the Development Plan and discretionary Project Approvals. CITY acknowledges that the boundaries of the parcels shown on the Development Plan and the Project Approvals are approximate and are subject to minor variation prior to recordation of final map(s) for the Project, provided OWNER complies with the applicable procedures for subdivision maps. CITY may impose standard conditions of approval on any subdivision or resubdivision requested by OWNER so long as the condition(s) do not reduce the permitted density or intensity, or substantially increase the cost of the development, allowed in the Project Approvals and described in the Development Plan. (c) Maximum Height and Size of Structures. OWNER shall have the vested right to develop the Property with the maximum height and size of structures as set forth in the Development Plan and the Project Approvals. 3.2 Compliance with Project Conditions. OWNER acknowledges that City Council approval of the Project Approvals, the Development Plan and this Agreement is subject to compliance with the Project Conditions. The Project Conditions are, among other things, designed to minimize or eliminate any adverse impacts of the Project and protect and enhance the environment. In certain instances, the Project Conditions exceed those that might otherwise be appropriate under "nexus" and "rough proportionality" tests recently articulated by the courts. By entering into this Agreement, OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any Project Conditions imposed by the CITY after the Effective Date shall be consistent with the Project Approvals, Development Plan and this Agreement. Owner also agrees to abide by any conditions or modifications to the design of the Project resulting from Project Conditions that authorize review by the City subsequent to the Approval Date. 3.3 Compliance with General Regulations. OWNER shall comply with the Existing General Regulations. Except as otherwise specified in this Agreement, OWNER shall not be obligated to comply with any Future General Regulations that are in conflict with the Development Plan or this Agreement. Any Future General Regulation(s) that are inconsistent with this Agreement and /or the Development Plan and which do not fall within the definition of Governmental Reservations or Governmental Exceptions shall not be applicable to the development or use of the Property. With respect to Existing General Regulations that require the payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect on the Approval Date subject to any automatic increases or decreases mandated by the text of the Existing General Regulation as of the Approval Date. OWNER shall, however, comply with: (a) any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan or increase OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether adopted before or after the Approval Date by the CITY, which are in effect at the time applications for specific Project Approvals are submitted. 3.4 Public Health and Safety /Uniform Codes. This Agreement shall not prevent the CITY from adopting, and applying to the Project, Future General Regulations, including Uniform Codes (as referred to above), that are based on recommendations of a multi -state professional organization relating to the specifications for the constructions of improvements ( "Building Codes ") and become applicable throughout CITY. This Agreement shall not prevent the CITY from adopting, and applying to the Project, conditions inconsistent with the Development Plan or Project Approvals, when the conditions are adopted by the City Council after a noticed public hearing and pursuant to a determination by the City Council that the conditions are necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a determination of Nuisance unless the OWNER has been given notice of, and the right to present evidence at, a public hearing. Any 10 determination of Nuisance, and the rational relationship between the Nuisance and the conditions imposed, must be supported by substantial evidence in the record of the hearing. 4. BENEFITS TO OWNER. 4.1 Right to Develop. During the term of this Agreement, upon the Effective Date, OWNER shall have a vested right to develop, and receive building and occupancy permits for construction on, the Property to the full extent permitted by the Project Approvals and the Development Plan subject to the Project Conditions. CITY shall only take action with respect to the Property that complies and is consistent with the Project Approvals and the Development Plan unless OWNER gives its written consent to the action or CITY is permitted to take the action pursuant to this Agreement. OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY shall not impose or increase any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of and, or any other type of exaction) on the Project, except as expressly permitted by this Agreement, Existing General Regulations, Governmental Reservations or Governmental Exceptions. However, CITY may impose or increase a condition or requirement when such action is required (as opposed to permitted) by State or federal law and then only to the minimum extent and duration necessary to comply with State or federal law. Except as otherwise provided by this Agreement, the ordinances, plans, resolutions, and policies governing the permitted use and development of the Property shall be those described in the Project Approvals and the Development Plan. 4.2 Reservations or Dedications of Land. No dedication or reservation of any portion of the Property shall be required of OWNER in conjunction with the application or issuance of any Project Approval except as may be provided in the Project Approvals, Project Conditions, Development Plan or this Agreement. 4.3 No Additional Traffic Related Fees or Conditions. OWNER's satisfaction of the provisions of Article 5 shall be deemed full compliance with all Existing General Regulations, Future General Regulations and CEQA relative to traffic impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or increase the amount of any traffic- related fee, charge, dedication, or improvement relative to, or as a condition to, development of the Project. 4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior boundaries of the Property to the extent, and subject to the same conditions, that capacity is provided to similarly situated commercial property in the CITY. OWNER agrees to accept, during the term of this Agreement, all storm drain inflow from facilities in place as of the Effective Date. 4.5 Park Fees. OWNER and CITY acknowledge that the Project may :generate - .some incidental demand for, and usage of, park and open space land within 11 the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter 19.50 of the Newport Beach Municipal Code) and any Existing General Regulation relating to the dedication of land for park or open space purposes or the payment of park or open space fees. 4.6 Future Impact Fees, Conditions, and Exactions. So long as OWNER is not in default under this Agreement, CITY will not impose, or increase the amount of, any impact fee, condition, mitigation measure, or exaction other than as expressly required by the Project Approvals, Project Conditions, Existing General Regulations, the Development Plan, or this Agreement. CITY shall not, without the written consent of OWNER, form, or cause the formation of, any new governmental entity for the purpose of imposing fees, conditions or exactions the CITY could not directly impose pursuant to this Section. CITY may form or cause the formation of an assessment district (or similar vehicle) comprised of the Property and other property in the area for the purpose of funding public improvements that provide a special benefit to the Property. However, CITY may not include the Property in any assessment district formed to fund construction of public improvements that CITY is prohibited from imposing on OWNER because of this Agreement. 4.7 Time for Construction and Completion of Project. OWNER shall have the right to develop the Project in the manner and at the time that OWNER deems appropriate in the exercise of its business judgment. The Parties acknowledge that OWNER cannot predict the timing of the development of the Project because of numerous factors not within the control of OWNER, such as market demand, economic conditions, interest rates and competition. Subject to compliance with the provisions of this Agreement and Project Conditions, OWNER shall, at any time during the term of this Agreement, be entitled to apply for, and receive, Project Approvals consistent with the Development Plan. 4.8 Development Standards. Because the Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the Existing General Regulations and Future General Regulations is neither necessary nor appropriate. The terms and provisions of the Project Approvals, Development Plan or this Agreement shall prevail in the event of any conflict with Existing General Regulations or Future General Regulations. 4.9 Tentative Maps. (a) Improvement Security. As a condition of approving a final subdivision map or any future resubdivision for all or a portion of the Property, the CITY may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to the Municipal Code and the Subdivision Map Act. Nothing in this Agreement shall be construed as altering or relieving OWNER of any obligation imposed pursuant to the Municipal Code or the Subdivision Map Act. The improvement requirements, exactions or 12 other conditions of approval of a subdivision map, parcel map or lot line adjustment shall be consistent with this Agreement but CITY may impose standard conditions of approval generally applicable to similar projects subject to the provisions Section 3.1(b). (b) Expiration. Any current or future tentative maps for resubdivision of the Property shall expire concurrently with the termination of this Agreement or after the maximum period for the expiration of tentative maps authorized by Government Code § 66452.6, whichever is later. Should the time periods authorized by Government Code § 66452.6 be lengthened after the execution of this Agreement, OWNER shall be entitled to further extensions of any tentative subdivision map applicable to the Property, to the maximum extent authorized by law. (c) Resubdivisions. The Parties acknowledge that resubdivisions, lot line adjustments, or similar modifications may be necessary to develop the Project and are contemplated by this Agreement. These modifications or adjustments shall be approved provided they are in substantial conformance with the Development Plan and the Project Approvals. 4.10 Processing and Issuance of Permits. (a) Processing of Permits. As a material term of this Agreement benefiting OWNER, the CITY shall promptly accept for processing /review, and expeditiously approve, permit applications for the development and use of the Property that are in substantial conformance with the Project Approvals, Development Plan, Existing General Regulations, and this Agreement. (b) Issuance of Ministerial Project Approvals. CITY shall issue to OWNER all necessary use, building, occupancy, and other permits and approvals upon request, provided that applications are submitted in accordance with the Existing General Regulations and are in substantial conformance with the Project Approvals, Development Plan and this Agreement. (c) Vesting of Project Approvals. Any permit, license or approval issued pursuant to this Agreement shall be vested and deemed a Project Approval when granted. 4.11 Future Approvals. The future approval or issuance of any Project Approval that is consistent with the Development Plan, including any permit, license or authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations and similar actions shall not require an amendment of this Agreement 13 5. PUBLIC IMPROVEMENTS 5.1 Regional Transportation Facilities Fees. OWNER acknowledges that CITY is bound by provisions of ordinances, agreements, rules and regulations related to the financing, construction and operation of major transportation improvements that benefit large areas of Orange County including the Property. OWNER shall comply with the provisions of all such ordinances, agreements, rules and regulations, including the payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers Agreement and /or the Transportation Corridor Agency (collectively, the "TCA "). OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition and /or amount of fees through any procedure adopted or used by the TCA for that purpose. OWNER shall also have the right to commence litigation relative to the amount, method of calculating or timing of any fees or the procedure utilized by the TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless with respect to any loss, damage claim or liability arising out of any litigation commenced by OWNER that is related to this Section. OWNER agrees that satisfaction of the provisions of this Section is a condition to any discretionary or ministerial Project Approval. CITY shall not be required to issue any discretionary or ministerial Project Approval until OWNER provides proof that all fees required to be paid to the TCA, whether pursuant to ordinance, settlement or judgment, have been paid. 5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are based on the one thousand seven hundred and seventy (1770) additional average daily trips generated by the Project multiplied by the current per trip fee of one hundred thirty three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the time specified in Chapter 15.38 of the Code. 5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY for the construction of the circulation system improvements identified in Traffic Study 119 (TPO Improvements). OWNER's contributions to the funding of the TPO Improvements equal or exceed the requirements of the TPO and OWNER's contributions to the funding of the TPO Improvements is in addition to all other fees, charges or contributions required by this Agreement and /or existing General Regulations. OWNER's contribution to the TPO Improvements shall be the sum of seventy thousand dollars ($70,000) to fund construction of a second northbound (MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn lane and the construction of a second northbound (MacArthur) right turn lane at the MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary iL! plans, specifications and cost estimates for the MacArthur Project. The MacArthur Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree intersection as required by the TPO. The MacArthur Project is anticipated to cost one million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution to the MacArthur Project represents four percent (4 %) of the cost of the TPO improvements and has been calculated as specified in the TPO. CITY agrees to provide any supplemental funds necessary to ensure that construction of the MacArthur Project is complete no later than one year after occupancy of any development authorized by the Project Approvals. 5.4 Long Range Traffic Improvements. (a) Introduction. The EIR evaluated the "long term" impacts of the Project on major intersections in Newport Beach and Irvine (Long -range Analysis). The Long -range Analysis assumed construction of all entitlement and all circulation system improvements authorized in the Land Use and Circulation Elements of the Newport Beach General Plan (including the TPO Improvements). The Long -range Analysis also assumed the construction of entitlement and circulation system improvements contemplated for the year 2020 in the Land Use and Circulation Elements of the Irvine General Plan. The Long- range Analysis concluded that the Project would, depending on the construction of the J5 Ramp, have significant long -range adverse traffic impacts on four (4) or five (5) major intersections. The potential cost of mitigating the long - range impacts of the Project on intersections in the airport area could be significant. For example, mitigation of the impact of Project trips on service levels may require the construction of a grade separation and access ramps at the MacArthur /Jamboree intersection. The CITY has prepared conceptual plans for a grade separation at the Jamboree /MacArthur intersection and very preliminary cost estimates indicate that improvement costs, exclusive of right -of -way could be in the range of fifteen million dollars ($15,000,000) to twenty million dollars ($20,000,000). Moreover, the approval of the Project will result in an increase in average daily trips in the vicinity of the Project that may require other property owners to make improvements pursuant to the TPO that would not be necessary but for the Project. (b) OWNER Commitments. OWNER agrees to do the following: (i) Pay the CITY, within sixty (60) days after the Effective Date, forty -five cents ($.45) per square foot of additional entitlement granted pursuant to the Project Approvals to be used by the CITY solely for the purpose of funding a Planning Study for the Airport Area. 15 (ii) Pay the CITY the sum of eight dollars ($8.00) per square foot of additional entitlement authorized by the Project Approvals (Mitigation Fee). In the event a building permit is not issued within twelve (12) months after the Effective Date, the amount of the Mitigation Fee shall be increased by fifty cents ($.50) every twelve months after the Effective Date. (c) Payment. OWNER shall pay the Mitigation Fee prior to the issuance of any building permit for the Project. (d) Compliance. OWNER's compliance with the provisions of this Section shall relieve OWNER of any obligation to participate in any circulation system funding program developed and implemented by the CITY including a specific area plan or major thoroughfare program for the airport area. OWNER's compliance with the provisions of this Article shall constitute full and complete satisfaction of any obligation to make or fund, in whole or in part, any CITY circulation system improvement as a condition to development of the Project. 5.5 Fire Station Fee. 5.6 Fire Station. The EIR concludes that fire suppression service to the Project will not meet CITY response time standards in the event of the closure of OCFA Station 27. CITY has conducted studies of fire service needs in the airport area and options for providing fire suppression and paramedic services consistent with CITY standards. The options for providing fire suppression and paramedic services include the construction, equipping and staffing a new fire station in the airport area or immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current estimated cost of constructing and equipping a New Fire Station is two million dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site, the construction of the New Fire Station, and /or the equipping /staffing of the station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading or construction on the Property pursuant to this Agreement. Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire suppression facility impact fee program (Program) for area served by the New Fire Station. 6. SPECIAL PROVISIONS 6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley Burns Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales (Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER directly pays the Tax on all Eligible Transactions. iR 6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and Use Tax Program (Program) that, at a minimum, has the following components: (a) OWNER's commitment to, during the term of this Agreement, maintain a direct pay permit or similar authorization to directly pay Tax on all Eligible Transactions; (b) procedures that Owner will implement to maximize the amount of Tax paid to the City with respect to construction of the Project. (c) procedures pursuant to which OWNER will provide City with information identifying all buyers and sellers with whom OWNER and /or OWNER's contractors do business. The Program shall also contain other information relevant to OWNER's compliance with the terms and conditions of this Agreement pertaining to the direct payment of Tax. OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the Revenue Manager of CITY for approval. OWNER shall modify the Program in accordance with any and all reasonable recommendations of the Revenue Manager that are consistent with the intent of this Section. OWNER shall, during the term of this Agreement, fully implement the Program approved by the Revenue Manager. 7. ANNUAL REVIEW. 7.1 CITY and OWNER Responsibilities. Each Party shall review the other Party's good faith substantial compliance with this Agreement once each year (the "Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an annual review statement describing its actions in compliance with this Agreement and the Development Plan. 7.2 Procedure. In connection with the Annual Review, each Party shall have a reasonable opportunity to advise the other of alleged or potential breaches of this Agreement or the Development Plan, to explain the basis for that Party's position, and to receive from the other Party a statement of its position. A Party may issue a written "Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of the Annual Review, that Party concludes that the other Party has not complied in good faith with the terms of this Agreement or the Development Plan. The Party receiving a Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the sixty (60) day period, the Party alleging the non - compliance may pursue the remedies provided in this Agreement. 17 7.3 Mitigation Monitoring, The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures related to the Project. 7.4 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature of the Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign an Estoppel Certificate on behalf of the CITY. 7.5 Failure to Conduct Annual Review. The failure to conduct an Annual Review shall not constitute a Default of either Party or be asserted as a Default by either Party. 8. GENERAL PROVISIONS 8.1 Effective Date. This Agreement shall bind the Parties as of the Approval Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge and agree that none of the Project Approvals becomes effective unless the voters approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to the City Council the results of any election conducted pursuant to Section 423 of the City Charter. 8.2 Term of Agreement. The term of this Agreement (the "Term ") shall begin on the Effective Date and continue for a term of twenty -five (25) years unless otherwise terminated or modified pursuant to this Agreement, or extended pursuant to the provisions and conditions of Section 11. 8.3 Assignment. OWNER has the absolute right to assign its rights and /or delegate its obligations under this Agreement and the Development Plan as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as OWNER owns /leases any part of the Property, OWNER may (at its election) assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by OWNER of in the corresponding obligations. Upon any assignment of all or a portion of the Property, OWNER shall be released from all obligations under this Agreement that relate to the portion of the Property being transferred as of the date the assignment is effective. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the Assignee. If an Assignee is in Default, then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii) be a basis for an enforcement action against them. 8.4 Amendment of Agreement. (a) Consent. Subject to the provisions of Subsection 8.4(b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code, the Newport Beach Municipal Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) Amendments. The Parties acknowledge that OWNER may determine that amendments to the Development Plan and /or Project Approvals are appropriate and desirable. In such event, OWNER may apply in writing for an amendment to prior Project Approvals or the Development Plan. CITY shall process and act on the application. CITY shall have no obligation to grant any application that amends the permitted land uses, the overall intensity or density of the Project, or otherwise is an amendment of the Development Plan that could have one or more significant adverse environmental impacts. Any approved amendment shall be incorporated into this Agreement by reference and may be further amended from time to time as provided in this Section. 8.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns, provided, however, in the event of a Default the remedies shall be limited to those specified in Section 10.7. 8.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the term in accordance with Section 8.2; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the CITY to set aside, withdraw, or abrogate the CITY's approval of this Agreement or any material part of the Project or Project Approvals; or (c) The effective date of a Party's election to terminate the Agreement as provided in Section 10.3 of this Agreement. 19 8.7 Right to Terminate Upon Specified Events. Notwithstanding any other provision of this Agreement, OWNER retains the right to terminate this Agreement upon thirty (30) days written notice to CITY in the event that OWNER reasonably determines that continued development of the Project consistent with the Development Plan has become economically infeasible due to changed market conditions, increased development costs, burdens imposed by the CITY or other governmental entity as conditions to future discretionary approvals of the Project consistent with this Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by OWNER to be inconsistent with the Development Plan, or similar factors. 9. CONFLICTS OF LAW. 9.1 Conflict with State and Federal Laws and Regulations. Where State or federal law or regulation prevents compliance with one or more provisions of this Agreement, those provisions shall be modified to the minimum extent necessary to comply with the State or federal laws or regulations, and the modified Agreement shall remain in effect, subject to the following: (a) The CITY shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding, based on substantial evidence in the record of a public hearing where OWNER has notice and an opportunity to present evidence, that the modification is required (as opposed to permitted) by State and federal law or regulation; (b) The modifications must be limited to those required (as opposed to permitted) by the State or federal law or regulation; (c) The modified Agreement must be consistent with the State or federal law or regulation requiring the modification; (d) The intended material benefits of this Agreement must still be received by each of the Parties after modification; and (e) The modification and any applicable local, State, or federal law or regulation does not render the modified Agreement impractical to enforce; 9.2 Controlling Law. This Agreement shall be governed by the laws of the State of California. 10. DEFAULT, REMEDIES AND TERMINATION. 10.1 General Provisions. In the event of a Default the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time 20 (not less than thirty (30) days) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period then a Default shall be deemed not to exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question is not susceptible of cure within the applicable Cure Period, and the Defaulting Party commences its cure within the Cure Period and diligently pursues the cure to completion. 10.2 Option to Institute Legal Proceedings or to Terminate. The noticing Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the noticing Party intends to terminate the Agreement and the alleged Default is not cured within the Cure Period. The City Council shall, no later than forty -five (45) days after a Notice of intent is served on either Party, hold a public hearing in the manner specified in the Government Code and /or the Municipal Code to consider and review the alleged Default. 10.3 Notice of Termination. After the public hearing described in Section 10.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party. The Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council at the public hearing establishes the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 12.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 10.5 Default by OWNER. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have no obligation to perform any of CITY's obligations under this Agreement (as opposed to the CITY's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of competent jurisdiction. The CITY's election not to perform as permitted by this provision shall not constitute a Default. 10.6 Default by the CITY. Subject to and after termination of this Agreement in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have no obligation to perform any of OWNER's obligations under this Agreement, unless otherwise ordered by a court of law. However, OWNER shall not be entitled to receive Project Approvals or take any other action inconsistent with provisions of the Development Plan, the Newport Beach General Plan, or relevant zoning ordinances 21 unless otherwise permitted by law. OWNER's election not to perform as permitted by this provision shall not constitute a Default. 10.7 Specific Performance. (a) The Parties agree that, except as provided in Subsection 9.7.b., the loss by either of them of their respective rights under this Agreement would not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and /or injunctive relief. (b) Notwithstanding the foregoing, in the event any development fees or taxes are imposed on development of the Property other than those authorized pursuant to this Agreement or the Development Plan, OWNER shall be entitled to recover from CITY restitution of all improperly assessed fees or taxes, together with interest thereon at the maximum allowable non - usurious rate from the date such sums were paid to CITY to the date of restitution. 10.8 Effect of Termination. The termination of this Agreement shall not affect the rights, duties and obligations, if any, of any successor to OWNER to comply with the Project Approvals. . 11. ENCUMBRANCES AND RELEASES ON PROPERTY. 11.1 Discretion to Encumber. This Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvements. 11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon written request to CITY, be entitled to receive from CITY written notification of any default by Owner of the performance of OWNER's obligations under this Agreement which has not been cured within thirty (30) days following the date of the Notice of such default. (a) Notwithstanding OWNER's default, this Agreement shall not be terminated by CITY as to any Mortgagee to whom Notice is to be given and to which either of the following is true: (i) The Mortgagee cures any default by OWNER involving the payment of money within sixty (60) days after the Notice of default; provided, however, that if any such default cannot, with diligence, be cured within the sixty (60) day period, then the Mortgagee shall have additional time as may be reasonably necessary to cure the 22 default if the Mortgagee commences the cure within the sixty (60) day period and diligently pursues the cure to completion. (ii) As to defaults requiring title or possession of all or a portion of the Property to cure: (i) the Mortgagee agrees in writing, within sixty (60) days after receipt from CITY of the written Notice of default, to perform the proportionate share of OWNER's obligations under this Agreement allocable to that part of Property in which the Mortgagee has an interest conditioned upon the Mortgagee's acquisition of the required portion of the Property by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the Mortgagee commences foreclosure proceedings to reacquire title to the Property or applicable portion thereof within the sixty (30) days and thereafter diligently pursues foreclosure to completion; and (iii) the Mortgagee promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event of any Mortgagee records a Notice of default as to its mortgage or deed of trust, CITY shall consent to the assignment of all of OWNER's rights and obligations under this Agreement to the Mortgagee or to any purchaser of OWNER's interest at a foreclosure or trustee sale and OWNER shall remain liable for such obligations unless released by CITY or unless the applicable portion of OWNER's Property is transferred. (b) Notwithstanding Subsection 11.2.a. of this Agreement, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving OWNER, the times specified in Subsection 11.2.a of this Agreement for commencing or prosecuting foreclosure or other proceedings shall be tolled during the period of the prohibition. (c) OWNER's execution or breach of this Agreement shall not defeat, render invalid, diminish or impair the lien of any existing or future mortgage or deed of trust on OWNER's Property made in good faith and for value. 11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no Mortgagee shall have an obligation or duty under this Agreement to perform the obligations of OWNER or other affirmative covenants of OWNER or to guarantee such performance. No Mortgagee shall be liable for any Default or monetary obligations of OWNER arising prior to acquisition of title to the Property by the Mortgagee or their respective successors or assigns. However, to the extent any covenant to be performed by OWNER is a condition to the performance of a covenant by CITY, the performance shall continue to be a condition precedent to CITY's performance. In the 23 event a Mortgagee elects to develop the Property in accordance with the Development Plan, the Mortgagee shall be required to assume and perform the obligations or other affirmative covenants of OWNER under this Agreement. 12. MISCELLANEOUS PROVISIONS. 12.1 Notices. All Notices shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; and, (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt. Notices shall be addressed as follows: To the CITY: City Manager - City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Manager To OWNER: Koll Center Newport Number A 4343 Von Karman Ave. Newport Beach, CA 92660 Attn: Don Koll CC: Starpointe Ventures Either party may give the other a "Notice of a New Address" to modify this Subsection. 12.2 Enforcement Delay: Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non - performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities other than CITY, suspension of rights in accordance with the existence of unforeseen circumstances, governmental moratorium other than a moratorium enacted by CITY, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon, but in no case shall the extension of time for performance exceed six (6) months. 12.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot 24 be modified to implement the prior intent of the Parties and the Party substantially benefited by the material provision does not waive its rights under the unenforceable provisions, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 5 are deemed "material ". 12.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter. This Agreement supersedes all negotiations and previous offers and understandings between the Parties regarding the subject matter. 12.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this Agreement. 12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything that has the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to obtain any permits from other public agencies that may be required for development of the Project. OWNER may challenge any ordinance, measure, moratorium, or other limitation in a court of law if litigation is necessary to protect the development rights vested in the Property pursuant to this Agreement. 12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably be relying on CITY's performance of its covenants in this Agreement when OWNER invests money and effort in construction of the Project. 12.10 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute documents, with acknowledgment or affidavit if reasonably required, and take any other action reasonably necessary to implement the terms and conditions of this Agreement or permit development of the Project in accordance with the Development Plan. 12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and assigns of the Parties. 12.12 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the Sections and Subsections are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement does not, and is not intended to, 25 impermissibly contract away the police power, legislative authority or governmental functions of the CITY in general or with respect to the Property. 12.13 Authority to Execute. The person executing this Agreement on behalf of OWNER warrants and represents that he /she has the authority to do so and the authority to bind OWNER to the performance of OWNER's obligations under this Agreement. 12.14 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not be unreasonably withheld. 12.15 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 12.16 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the CITY and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement 6 is a ministerial act and the failure of the CITY to record the Agreement as required by this Section and Government Code § 65868.5 does not make the Agreement void or ineffective. 12.17 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California. 12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 12.19 Relationship of the Parties. The contractual relationship between CITY and OWNER arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of any legal action filed and prosecuted by any person or entity other than the Parties that challenges the validity or manner of approval of this Agreement, the Project Approvals or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and hold harmless the CITY and its officers and employees with respect to any costs, expenses, judgment, damages or award, including an award of attorney fees and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER P71P acknowledges and agrees that CITY has fully complied with all applicable statutes, ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and Existing General Regulations in the initiation, processing, evaluation and approval of all Project Approvals. OWNER's obligations pursuant to this Section shall commence as of the Approval Date and continue for the period specified in Section 8.2 or until this Agreement terminates, whichever occurs first. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of the CITY or its officers or employees that occurred on or before the Approval Date. The obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to the fraud, willful misconduct or violation of law by the CITY or its officers and employees that occurs after the Approval Date. 12.21 Payments. Any payment due pursuant to this Agreement shall bear interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date due until paid with interest compounded monthly. Dated: 2000 CITY OF NEWPORT BEACH By: Mayor Dated: 2000 KOLL CENTER NEWPORT NUMBER A f: \users \cat \sha red \bu rnham \kollda 102500.doc 27 Revised mitigation measure MM 4.4.1 Prior to the issuance of the building permit for the first parking structure, the applicant shall prepared an interim parking relocation plan that will be implemented, subject to the review and approval of the City of Newport Beach, during the construction of the proposed parking structures and 10 -story office building. The interim parking plan will identify the various methods and locations that will be employed during the construction phase of project implementation to meet the parking needs of the existing Office Site B (South) office buildings and other uses (based upon typical parking demand and building occupancies), including but not limited to: • Utilization of the parking in closest proximity and great utilitv for the service of the buildings and uses. These could include, but are not limited to Conexant, the Universitv of California and other parts of Koll Center Newport, including Office Site B. gh.ittle e p ar4iag • Shuttle service to off -site parking locations. • Valet parking to increase efficiency (i.e. density) of parking in Office Site B (South). Authorized to Publish Advertisements of all kinds including public notices by Decree of the Superior Court of Orange County, California. Number A -6214, September 29, 1961, and A -24D31 June 11, 1963. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. County of Orange ) I am a Citizen of the-United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the NEWPORT BEACH -COSTA MESA DAILY PILOT, a newspaper of general circulation printed published in I and the City-of Costa Mesa, County of- Orange, State attached Notice as was printed a following dates: of California, and that is a true and complete copy nd published on the June 16, 2001 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on _ ,y1 16 , 2001 at Costa Mesa, California. Signature kECEIVED '01 JJN 25 P 1 :48 OFFICE CF THE "ITY CLERK CITY OF NEWPORT BEACH NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on the application by Timothy Strad., represemirrg the Koll Center Newport Number A for the follow- ing project: GPA No. 97 -3(8), Zoning Amendment No. 905, and Development Agreement No. 16: Proposed General Plan Amendment, planned community zoning amendment, and de- velopment agreement to increase the maximum gross square footage al- lowed within Office Site B of Kell Center Newport by 250,000 square feet. The amendments and development agreement I would provide for future construction of a new ten -story - office tower and the payment of vad- ous traffic and other mitigation fees to the City to fund street in- tersection and other im- provements. The project application also includes review of Traffio Study No. 119, a traffic study and Traffic Phasing Or- dinance (TPO) analysis for the projeG. The project site is located at the comer of MacArthur Boulevard and Jamboree Road. NOTICE IS FURTHER GIVEN that an initial environmental assess- ment for the above project was processed and completed in ac- cordance with the Cali- fornia Environmental Quality Act. It was found that because the project could have a significant impact to the environ- ment, an environmental impact report was re- quired. That Draft Environmental Impact Report (DEIR) is on file and available for public inspection at the City of Newport Beach Plan- me. NOTICE IS FURTHER GIVEN that a public hearing has been sched- uled before the City Council on the 26th day of June, 2001 at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Bou- levard, California, - at which time and place any and all persons in- terested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing de- scribed in this notice or in written cor -, respondence delivered to the City at or prior to the public hearing. For information call Larry Lawrence, the City's project manager for the above project, at Vonne M. Herk- Ity Clerk Newport Beach red Newport Costa Mesa Pilot June 16, Sa526 0 0 AFFIDAVIT OF POSTING On U o-(' 2001, I posted the Notice of Public Hearing regarding: The application by Timothy Strader representing the Koll Center Newport Number A. Date of Hearing: June 26, 2001. 0 0 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on the application by Timothy Strader representing the Koll Center Newport Number A for the following project: GPA No. 97 -3(B), Zoning Amendment No. 905, and Development Agreement No. 16: Proposed General Plan Amendment, planned community zoning amendment, and development agreement to increase the maximum gross square footage allowed within Office Site B of Koll Center Newport by 250,000 square feet. The amendments and development agreement would provide for future construction of a new ten -story office tower and the payment of various traffic and other mitigation fees to the City to fund street intersection and other improvements. The project application also includes review of Traffic Study No. 119, a traffic study and Traffic Phasing Ordinance (TPO) analysis for the project. The project site is located at the comer of MacArthur Boulevard and Jamboree Road. NOTICE IS FURTHER GIVEN that an initial environmental assessment for the above project was processed and completed in accordance with the California Environmental Quality Act. It was found that because the project could have a significant impact on the environment, an environmental impact report was required. That Draft Environmental Impact Report (DEIR) is on file and available for public inspection at the City of Newport Beach Planning Department, 3300 Newport Boulevard, Newport Beach, California. NOTICE IS FURTHER GIVEN that a public hearing has been scheduled before the City Council on the 26`h day of June, 2001, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at or prior to the public hearing. For information call Larry Lawrence, the City's project manager for the above project, at 949 - 661 -8175. Kam" u , \ -3 \�- (- [y -Q 1 E A Qo' -A 0 ('0, k .G 1 Yn. LaVonne M. Harkless, City Clerk City of Newport Beach ( -1�, 0 0 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on the application by Timothy Strader representing the Koll Center Newport Number A for the following project: GPA No. 97 -3(B), Zoning Amendment No. 905, and Development Agreement No. 16: Proposed General Plan Amendment, planned community zoning amendment, and development agreement to increase the maximum gross square footage allowed within Office Site B of Koll Center Newport by 250,000 square feet. The amendments and development agreement would provide for future construction of a new ten -story office tower and the payment of various traffic and other mitigation fees to the City to fund street intersection and other improvements. The project application also includes review of Traffic Study No. 119, a traffic study and Traffic Phasing Ordinance (TPO) analysis for the project. The project site is located at the comer of MacArthur Boulevard and Jamboree Road. NOTICE IS FURTHER GIVEN that an initial environmental assessment for the above project was processed and completed in accordance with the California Environmental Quality Act. It was found that because the project could have a significant impact on the environment, an environmental impact report was required. That Draft Environmental Impact Report (DEIR) is on file and available for public inspection at the City of Newport Beach Planning Department, 3300 Newport Boulevard, Newport Beach, California. NOTICE IS FURTHER GIVEN that a public hearing has been scheduled before the City Council on the 26`" day of June, 2001, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at or prior to the public hearing. For information call Larry Lawrence, the City's project manager for the above project, at 949 - 661 -8175. 0118 �o . �?) . , 4&4_1,� LaVonne M. Harkless, City Clerk City of Newport Beach • SUSAN W. CASE, INC. • OWNERSHIP LISTING SERVICE 917 Glenneyre Street, Suite 7, Laguna Beach, CA 92651 PHONE (949) 494 -6105 • FAX (949) 494 -7418 CERTIFICATION OF PROPERTY OWNERS LIST THE ATTACHED LIST REPRESENTS THE NAMES AND ADDRESSES OF ALL PROPERTY OWNERS LOCATED WITHIN OD c�FEET OF THE XT.ERIOR BOUN'DnA'.RL9S IOQF TH-E�/� PROPERTY LOCATED AT X1V �J alt%d �/Wi off-Q- � /�7�,NYY�A�VV o THIS INFORMATION WAS OBTAINED THROUGH TRANSAMERICA INTELLITECH, A DATA SOURCE UTILIZING THE COUNTY ASSESSMENT ROLLS AND OTHER DATA SOURCES. THIS INFORMATION IS GENERALLY DEEMED RELIABLE, BUT IS NOT GUARANTEED. lwao'-- SUSAN W. CASE, INC. ROLL FILE #601711 CRNR JAMBOREE AND MACARTHUR BLVD NEWPORT BEACH CA 300' LISTING JUNE 15 2001 427 181 10 BANK OF AMERICA NT & SA 750 B ST SAN DIEGO CA 92101 427 222 01 HUNTER ACQUISITION CO 4041 MACARTHUR BLVD #350 NEWPORT BEACH CA 92660 427 - 223 -01 MAC ARTHUR BOULEVARD PA 1453 3RD PROMENADE ST 2 SANTA MONICA CA 90401 445 - 072 -14 REGENTS OF THE UNIVERSI 590 UNIVERSITY HALL 220 BERKELEY CA 94720 445 122 05 CAPITAL PACIFIC HOLDINGS 4100 MACARTHUR BLVD -M0 NEWPORT BEACH CA 92660 445 - 131 -02 SEMICONDUCTOR S ROCKWEL 625 LIBERTY AVE PITTSBURGH PA 15222 445 131 05 KOTO PROPERTIES LLC 1065 E HILLSDALE BLVD #215 FOSTER CITY CA 94404 427 181 12 JAMES GLIDEWELL PO BOX 8127 NEWPORT BEACH CA 92658 • 427 181 13 ADVENT REALTY LTD PTNSHP 4100 NEWPORT PLACE DR NEWPORT BEACH CA 92660 427 222 05 427 222 06 MALAGUENA PMC 1000 DOVE ST #100 4001 MACARTHUR BLVD #300 NEWPORT BEACH CA 92660 NEWPORT BEACH CA 92660 427 223 02 PARK MACARTHUR ASSOCIATE 3600 BIRCH ST #250 NEWPORT BEACH CA 92660 445 072 30 REGENTS OF THE UNIVERSIT 2200 UNIVERSITY BERKELEY CA 94704 445 122 15 PACIFIC CLUB 4110 MACARTHUR BLVD NEWPORT BEACH CA 92660 445- 131 -03 SEMICONDUCTOR S ROCKWEL 625 LIBERTY AVE PITTSBURGH PA 15222 445 131 13 PALMCO CORPORATION 5000 BIRCH ST #4700 NEWPORT BEACH CA 92660 445- 072 -13 REGENTS OF THE UNIVERSI 590 UNIVERSITY HALL 220 BERKELEY CA 94720 445 - 121 -OS IRVINE CO 550 NEWPORT CENTER DR NEWPORT BEACH CA 92660 445 122 16 AETNA LIFE INSURANCE CO PO BOX 131074 CARLSBAD CA 92013 445 131 04 AETNA LIFE INSURANCE CO PO BOX 131074 CARLSBAD CA 92013 445- 131 -15 BANK DEUTSCHE AG 35.W WACKER DR CHICAGO IL 60601 445 131 16 445 - 131 -23 445 131 25 HOLDINGS MBC PGP VON BARMAN PROPERTI AETNA LIFE INSURANCE CO 4320 VON KARMAN AVE 840 NEWPORT CTR DR 420 PO BOX 131074 NEWPORT BEACH CA 92660 NEWPORT BEACH CA 92660 CARLSBAD CA 92013 445 131 26 SANTA BARBARA BK PO BOX 3170 HONOLULU HI 96802 1445 132 06 SCHOLLE CORPORATION 19402 JAMBOREE RD IRVINE CA 92715 • 445 131 27 PRES REALTY VENTURE 18301 VON KARMAN AVE IRVINE CA 92612 445- 132 -09 SOUTH COAST THRIFT & 19752 MACARTHUR BLVD IRVINE CA 92612 0 445- 131 -28 AETNA LIFE INSURANCE CO PO BOX 131074 CARLSBAD CA 92013 445- 132 -11 LO BATES JOHNSON BUILDING 19742 MACARTHUR BLVD 24 IRVINE CA 92612 445 - 132 -16 445 - 132 -18 SUSAN CRAWFORD SPIEKER PROPERTIES LP 19762 MACARTHUR BLVD 19600 FAIRCHILD 285 IRVINE CA 92612 IRVINE CA 92612 Smooth Feed Sheets TM � � Use template for 5160 Tim Strada Starpoint Ventures 1900 Main St., # 350 Irvine, CA 92614 Bayview Court Homeowners Association ATTN: Lynne Shelton Jim Horian P.O. Box 4703 Irvine, CA 92616 Eastbluff Homeowner Comm. Assoc. ATTN: Scott Smith 17300 Redhill Avenue 210 Irvine, CA 92614 Newport Homeowners Association ATTN: Art Nakazoto 3037 Corte Portofino Newport Beach, CA 92660 Bayview Terrace Homeowners Assoc. ATTN: Sheryl Uggen Katrina Headle 16546 Von Karntan 200 Irvine, CA 92606 Newport North Townhomes Association ATTN: Gene Gatewood 29 Corsica Drive Newport Beach, CA 92660 SAVERY® Address Labels Laser 51600 9 0 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on the application by Timothy Strader representing the Koll Center Newport Number A for the following project: GPA No. 97 -3(B), Zoning Amendment No. 905, and Development Agreement No. 16: Proposed General Plan Amendment, planned community zoning amendment, and development agreement to increase the maximum gross square footage allowed within Office Site B of Koll Center Newport by 250,000 square feet. The amendments and development agreement would provide for future construction of a new ten -story office tower and the payment of various traffic and other mitigation fees to the City to fund street intersection and ofner improvements. The project application also includes review of Traffic Study No. 119, a traffic study and Traffic Phasing Ordinance (TPO) analysis for the project. The project site is located at the corner of MacArthur Boulevard and Jamboree Road. NOTICE IS FURTHER GIVEN that an initial environmental assessment for the above project was processed and completed in accordance with the California Environmental Quality Act. It was found that because the project could have a significant impact on the environment, an environmental impact report was required. That Draft Environmental Impact Report (DEIR) is on file and available for public inspection at the City of Newport Beach Planning Department, 3300 Newport Boulevard, Newport Beach, California. NOTICE IS FURTHER GIVEN that a public hearing has been scheduled before the City Council on the 260 day of June, 2001, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at or prior to the public hearing. For information call Larry Lawrence, the City's project manager for the above project, at 949 - 661 -8175. U�71/hQ 2'/.� LaVonne M. Harkless, City Clerk City of Newport Beach