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HomeMy WebLinkAbout03 - Approving Koll Center Newport Planned Community Dev. Plan and a DA for the Residences at 4400 Von Karman ProjectQ �EwPpRT CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report February 9, 2021 Agenda Item No. 3 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Rosalinh Ung, Principal Planner, rung@newportbeachca.gov PHONE: 949-644-3208 TITLE: Ordinance Nos. 2021-1 and 2021-2: Approving Koll Center Newport Planned Community Development Plan Amendment and a Development Agreement for the Residences at 4400 Von Karman Project (PA2020-061) ABSTRACT: For the City Council's consideration is the adoption of Ordinance No. 2021-1 which approves the Koll Center Newport Planning Community Plan Amendment and Ordinance No. 2021-2 which approves a development agreement for The Residences at 4400 Von Karman project located at 4400 Von Karman Avenue. RECOMMENDATION: a) Find that Environmental Impact Report Addendum No. ER2020-003 for the Residences at 4400 Von Karman Project certified by the City Council on January 26, 2021 was prepared in compliance with California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K-3; b) Conduct a second reading and adopt Ordinance No. 2021-1, An Ordinance of the City Council of the City of Newport Beach, California, Approving Planned Community Development Plan Amendment No. PD2020-001 for the Residences at 4400 Von Karman Project Located at 4400 Von Karman Avenue (PA2020-061) (Attachment A); and c) Conduct a second reading and adopt Ordinance No. 2021-2, An Ordinance of the City Council of the City of Newport Beach, California, Approving Development Agreement No. DA2020-002 for the Residences at 4400 Von Karman Project Located at 4400 Von Karman Avenue (PA2020-061) (Attachment B). FUNDING REQUIREMENTS: The applicant is required to reimburse the City of Newport Beach (City) for all costs associated with the review of the application. The applicant has agreed to the terms of the Development Agreement that requires the payment of $8,000,000. 3-1 Ordinance Nos. 2021-1 and 2021-2: Approving Koll Center Newport Planned Community Development Plan Amendment and a Development Agreement for the Residences at 4400 Von Karman Project (PA2020-061) February 9, 2021 Page 2 DISCUSSION: On January 26, 2021, the City Council conducted a public hearing on the proposed project and applications. At the conclusion of the hearing, the City Council voted unanimously to take actions related to the California Environmental Quality Act and to approve the project. The City Council introduced and passed to a second reading Ordinance No. 2021-01, amending the Koll Center Newport Planned Community Regulations; and Ordinance No. 2021-02, approving a development agreement between the City and the applicant related to project development. ENVIRONMENTAL REVIEW: The Environmental Impact Report Addendum No. ER2020-003, including written responses to comments, has been prepared for the project in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K-3, which included analysis of the proposed Planned Community Development Plan Amendment and the development agreement. The City Council adopted the addendum at the January 26, 2021, meeting by Resolution No. 2021-02. �[0��[�I1rev The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Ordinance No. 2021-1 to Approve PD2020-001 Attachment B — Ordinance No. 2021-2 to Approve DA2020-002 3-2 ATTACHMENT A ORDINANCE NO. 2021-1 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PD2020-001 FOR THE RESIDENCES AT 4400 VON KARMAN PROJECT LOCATED AT 4400 VON KARMAN AVENUE (PA2020-061) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, an application was filed by TPG (KCN) Acquisition, LLC ("Applicant") with respect to property located at 4400 Von Karman Avenue, generally bounded by Birch Street and Von Karman Avenue, and legally described in Exhibit "A" which is attached hereto and incorporated herein by reference ("Property"), WHEREAS, the Applicant is requesting approval for the development of 312 apartment units atop an 825 -space parking structure, a 284 -space free-standing parking structure, one -acre public park, and reconfiguration of existing surface parking lots serving existing office buildings ("Project") which require the following approvals from the City: • Planned Community Development Plan Amendment (PD2020-001) ("PCDP Amendment") - An amendment to Planned Community Development Plan #15 (Koll Center Newport Planned Community) for the creation of a residential overlay zone and park overlay zone to allow for residential uses and a public park within the Koll Center Newport Professional and Business Office Site B ("Office Site B"); • Major Site Development Review (SD2020-006) ("SD") - A site development review in accordance with the amended Koll Center Newport Planned Community and Section 20.52.080 (Site Development Reviews) of the Newport Beach Municipal Code ("NBMC") for the construction of the Project; • Traffic Study (TS2020-001) ("TS") - A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the NBMC which is required for projects that generate in excess of 300 new average daily trips; • Lot Line Adjustment (LA2020-002) ("LA") - To adjust the lot lines of the two (2) underlying parcels that comprise the Project; 3-3 Ordinance No. 2021-1 Page 2 of 6 • Affordable Housing Implementation Plan (AH -2020-003) ("AHIP") - A program specifying how the Project meets the City's affordable housing requirements, in exchange for a request of 20 percent increase in density and meets the criteria for a development concession related to the mix of affordable units pursuant to Chapter 20.32 (Density Bonus) of the NBMC and Government Code Section 65915 et seq.; • Development Agreement (DA2020-002) ("Development Agreement") — A request for a development agreement between the Applicant and the City, which would provide vested rights to develop the Property, while also providing negotiated public benefits; and • Addendum No. ER2020-003 to the 2006 General Plan Update Environmental Impact Report and the 2008-2014 City of Newport Beach Housing Element Update Initial Study/Negative Declaration ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum will address reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated MU -H2 (Mixed -Use Horizontal 2) by the City of Newport Beach General Plan ("General Plan") Land Use Element and located within the Airport Business Area, and the Airport Business Area Integrated Conceptual Development Plan ("ICDP") which allocates a maximum of 260 residential units to be developed on the Property, WHEREAS, the Property is currently located within the PC -15 (Koll Center Newport Planned Community Office Site B) Zoning District; WHEREAS, the Project is not located in the coastal zone, therefore, amending the Local Coastal Program or a coastal development permit is not required; WHEREAS, a telephonic public hearing was held by the Planning Commission on November 5, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2020-040 by a unanimous vote of (4 ayes, 0 nays) recommending approval of the Project, and the land use entitlements referenced above, to the City Council; 3-4 Ordinance No. 2021-1 Page 3 of 6 WHEREAS, due to the proposed amendment to the Property's zoning regulations, California Public Utilities Code Section 21676(b) requires the City to refer the Project to the Orange County Airport Land Use Commission ("ALUC") for a determination of the Project's consistency with the Airport Environs Land Use Plan ("AELUP") for John Wayne Airport; WHEREAS, on November 19, 2020, the ALUC found the Project consistent with the AELUP for John Wayne Airport; WHEREAS, telephonic public meetings were held by the Parks, Beaches and Recreation ("PB&R") Commission on December 1, 2020 and January 25, 2021, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearings were given in accordance with the Ralph M. Brown Act and by providing written notice to property owners within a 300 foot radius of the Project; WHEREAS, the PB&R Commission determined that the proposed amenities to be provided within the proposed public park for the Project are practical, useable and feasible for the general public, and provided additional recommendations to the City Council; WHEREAS, at the January 12, 2021 City Council meeting, the City Council continued the public hearing to January 26, 2021. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act; and WHEREAS, the continued public hearing was held telephonically by the City Council on January 26, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing were given in accordance with California Public Utilities Code Section 21676(b), the Ralph M. Brown Act, and Chapters 15.40 (Traffic Phasing Ordinance), 15.45 (Development Agreements), 19.76 (Lot Line Adjustments), 20.56 (Planning Community District Procedures) and 20.62 (Public Hearings) of the NEMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: 3-5 Ordinance No. 2021-1 Page 4 of 6 Section 1: The City Council has considered the recommendation of the Planning Commission and the Parks, Beaches and Recreation Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to either commission for consideration and recommendation. Section 2: The City Council hereby approves Planned Community Development Plan Amendment No. PD2020-001, an amendment to Planned Community Development Plan #15 (Koll Center Newport Planned Community) as depicted in Exhibit "B", which is attached hereto and incorporated herein by reference and finds that Planned Community Development Plan Amendment No. PD2020-001 complies with the purpose set forth in Section 20.56. 010 (Purpose) of the NBMC. The amendment to the Planned Community Development Plan #15 (Koll Center Newport Planned Community) meets the intent and purpose of Section 20.56.010 in that the Residential Overlay Zone provides for the classification and development of 260 additive residential units consistent with the goals and policies of the MU -H2 (Mixed -Use Horizontal 2) land use designation and the ICDP along with a 20 percent density bonus of 52 units for a total 312 residential units, while maintaining the business and professional office park environment. The Residential Overlay Zone is tailored for the Project and includes density, intensity, and development standards such as building height, setbacks, and parking. It also includes general provisions for on-site circulation, loading, landscaping, signage, lighting, and recreation and open space requirements to ensure the Project will be compatible with the existing office developments within Office Site B; and Future development of the Property affected by the proposed amendment will be consistent with the goals and policies of the Land Use Element of the General Plan along with the purpose and intent of PCDP Amendment. Section 3: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 4: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 3-6 Ordinance No. 2021-1 Page 5 of 6 Section 5: Environmental Impact Report Addendum No. ER2020-03 was prepared for the Project in compliance with California Public Resources Code Section 21000 et seq. ("CEQA"); CEQA Guidelines as set forth in California Code of Regulations, Title 14, Division 6, Chapter 3; and City Council Policy K-3 (Implementation Procedures for California Environmental Quality Act). On the basis of the entire environmental record, the Project will not result in any new significant impacts that were not previously analyzed in the PEIR for the General Plan 2006 Update (SCH No. 2006011119) and the City of Newport Beach Housing Element Initial Study/Negative Declaration. The potential impacts associated with this Project would either be the same or less than those described in either the PEIR and the City of Newport Beach Housing Element Initial Study/Negative Declaration that have been appropriately mitigated. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the PEIR and the City of Newport Beach Housing Element Initial Study/Negative Declaration, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. In accordance with Section 15164 of the CEQA Guidelines, the City Council adopted Resolution No. 2021-2, thereby adopting an addendum to the previously adopted PEIR and the City of Newport Beach Housing Element Initial Study/Negative Declaration. Resolution No. 2021-2, including all findings contained therein, is hereby incorporated by reference. Section 6: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged and shall be in full force and effect. Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption. 3-7 Ordinance No. 2021-1 Page 6 of 6 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 26th day of January, 2021, and adopted on the 9th day of February, 2021, by the following vote, to -wit: AYES: NAYS: ABSENT: BRAD AVERY, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY TTORNEY'S OFFICE C. AAR N C. HARP, CITY ATTORNEY Attachments: Exhibit A -Legal Description Exhibit B - Planned Community Development Amendment No. PD2020- 001 3-8 Exhibit "A" Legal Description PARCEL 1: THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 91-155 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 266, PAGES 16 THROUGH 22 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING ATTHE NORTHEASTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 91-155; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 49021'34" WEST 584.54 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 4100502" WEST 54.87 FEET; THENCE SOUTH 04016'29" EAST 257.91 FEET; THENCE SOUTH 85°4331" WEST 685.70 FEET TO A LINE PARALLEL WITH AND 1.00 FEET EASTERLY OF THE EASTERLY RIGHT-OF-WAY LINE OF VON KARMAN AVENUE AS SHOWN ON SAID PARCEL MAP NO 91-155; THENCE ALONG SAID PARALLEL LINE NORTH 06°59'31" WEST 296.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 549.00 FEET; THENCE ALONG SAID CURVE NORTHEASTERLY 90.98 FEET THROUGH A CENTRAL ANGLE OF 09029'40" TO THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" WEST 204.00 FEET"; THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 274.72 FEET; THENCE NORTH 40°38'26" EAST 156.94 FEET TO THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" EAST 204.44 FEET"; THENCE ALONG SAID SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 166.34 FEET; THENCE NORTH 40°38'26" EAST 284.73 FEET TO SAID NORTHEASTERLY LINE OF PARCEL 2; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°21'34' EAST 157.28 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING: 4.51 ACRES, MORE OF LESS. 9 -Al 060 1wj THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 91-155 AS SHOWN ON A MAP THEREOF, FILED IN BOOK266, PAGES 16 THROUGH 22 OF PARCEL MAPS, TOGETHER WITH PARCEL 1 OF PARCEL MAP NO. 82-713 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 181, 3-9 PAGES 13 THROUGH 19 OF PARCEL MAPS, BOTH IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. EXCEPTING THEREFROM THAT CERTAIN PARCEL DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 91-155; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 49021'34" WEST 584.54 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 41005'02" WEST 54.87 FEET; THENCE SOUTH 04016'29" EAST 257.91 FEET; THENCE SOUTH 85043'31" WEST 685.70 FEET TO A LINE PARALLEL WITH AND 1.00 FEET EASTERLY OF THE EASTERLY RIGHT-OF-WAY LINE OF VON KARMAN AVENUE AS SHOWN ON SAID PARCEL MAP NO 91-155; THENCE ALONG SAID PARALLEL LINE NORTH 06059'31" WEST 296.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 549.00 FEET; THENCE ALONG SAID CURVE NORTHEASTERLY 90.98 FEET THROUGH A CENTRAL ANGLE OF 09029'40" TO THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" WEST 204.00 FEET"; THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 274.72 FEET; THENCE NORTH 40°38'26" EAST 156.94 FEET TO THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" EAST 204.44 FEET"; THENCE ALONG SAID SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 166.34 FEET; THENCE NORTH 40038'26" EAST 284.73 FEET TO SAID NORTHEASTERLY LINE OF PARCEL 2; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°21'34' EAST 157.28 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING: 20.09 ACRES, MORE OF LESS. SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-WAY AND EASEMENTS OF RECORD. 3-10 Exhibit "B" Planned Community Development Plan Amendment No. PD2020-001 Document Attached. 3-11 PLANNED COMMUNITY DEVELOPMENT REGULATIONS AND STANDARDS F,of Koll Center Newport Ordinance No. 1449, adopted by the City of Newport Beach August 14, 1972 (Amendment No. 313) Original draft May 5, 1972 Amendment (1) August 14, 1972 Amendment (2) August 14, 1972 Amendment (3) August 2, 1973 Amendment (4) February 7, 1974 Amendment (5) June 10, 1974 Amendment (6) May 15, 1975 Amendment (7) September 8, 1975 Amendment (8) June 28, 1976 Amendment (9) January 10, 1977 Amendment (10) July 11, 1978 Amendment (11) August 28, 1978 Amendment (12) October 19, 1978 Amendment (13) November 10, 1980 Amendment (14) March 23, 1981 Amendment (15) October 24, 1984 Amendment (16) May 14, 1984 Amendment (17) December 9, 1985 Amendment (18) July 14, 1986 Amendment (19) March 23, 1987 Amendment (20) July 27, 1987 Amendment (2 1) June 12, 1989 Amendment (22) April 25, 1994 Amendment (23) October 9, 1995 Amendment (24) February 23, 1998 Amendment (25) August 10, 1998 Amendment (26) January 11, 2000 Amendment (27) January 25, 2000 Amendment (28) August 9, 2005 Ordinance No. 2006-19(29) July 25, 2006 Ordinance No. 2006-21(30) October 24, 2006 Ordinance No. 2011-3(31) January 25, 2011 Ordinance No. 2011-8(32) March 8, 2011 Ordinance No. 2013-5(33) March 12, 2013 Ordinance No. (34) , 20 NOTE: See Footnotes beginning on Page 49 for description of amendments. 3-12 CONTENTS PAGE NO. PREFACE 1 DEVELOPMENT CONSIDERATIONS 2 GENERAL NOTES 6 DEFINITIONS 7 PART I. INDUSTRIAL — Deleted (33) PART II. COMMERCIAL Section I. 10 Site Area and Building Area Section II. 21 Permitted Uses Section III. 25 General Development Standards for Commercial Land PART III. GENERAL PARKING REQUIREMENTS Section I. 29 PART IV. GENERAL SIGN REQUIREMENTS Section I. 32 Sign Standards Section II. 35 Sign Area Section III. 35 Maintenance PART V. GENERAL LANDSCAPE STANDARDS Section I. 36 General Statement PART VI. RESIDENTIAL OVERLAY 41 3-13 PART VII. PART VIII. FOOTNOTES ATTACHED EXHIBITS (34) Composite.. Exhibit A ... Exhibit B.... Exhibit C.... Exhibit D ... For Information Only Land Use Grading and Roads Storm Drain Water & Sewer Exhibit E ............................................... Boundary and Topography Exhibit F .............................................. Residential Overlay Map — Office Site B Exhibit G ............................................. Pedestrian Connection Diagram 54 3-14 PREFACE It is the intent of this Planned Community Development to provide comprehensive zoning for what i now the Collins Radio pr -opo.., Koll Center Newport while including provisions allowing for residential development consistent with the City of Newport Beach General Plan and the Integrated Conceptual Development Plan approved by the City of Newport Beach on December 10, 2010, within the Residential Overlay zone of Professional and Business Office Site B. Residential uses are permitted in accordance with the provisions found in Part VI, herein. Existing and planned uses within this development a -r -e include a hotel with banquet and convention facilities, a small retail and service center, restaurants, a private club, the Orange County Courthouse with the balance of the acreage developed as a business and professional office park emphasizing open space. (34) 3-15 DEVELOPMENT CONSIDERATIONS (1) (34) This Planned Community Development is a project of The Koll Company. This area is most appropriate for commercial and light industrial uses, and residential where specifically permitted therefore we submit the enelosed air- tmffie atWysis, vebieular- analysis, land use analysis and mad,, -L4 analy is to substantiate this doe mens Attached drawings indicate land use, grading and roads, storm drains, water and sewer, topography and tfaffie analysis residential overlay zone, and pedestrian connection diagram to Uptown Newport mixed-use development. The site is comprised of approximately 154.0 acres and is generally bounded on the northeast by Campus Drive, on the southeast by Jamboree Road and on the west by MacArthur Boulevard. (10) (33) In order to ensure development consistent with the master plan concept, a review shall be required. Prior to the issuance of any building permits, a preeise site development plan review application shall be submitted by the developer to the Planning Community Development Director for review. The �= application shall conform to the requirements of this Planned Community text and all other applicable codes and regulations and shall be approved prior to submission by The Koll Company. Included in the plan review material shall be: Building Criteria a. size b. location c. height d. materials e. number of residential units, if applicable 2. Parking Criteria a. areas, including drives and accesses b. quantity c. size 3. Landscaped Areas a. setbacks b. walls c. plazas d. pools, fountains and/or other amenities 4. Signing Criteria a. location b. size c. quantity 3-16 5. All other information as required by the City or as directed by the Community Development Director and as recommended below. Items 5a through 5e inclusive. a. Sewage System Criteria The sewer system in the vicinity of the lake should be revised to conform to the following criteria: 1. All sewer lines should be located such that they will not be under water even when the lake is at its maximum level. 2. Sewer lines shall be located in 15 -foot wide (minimum) easements and must be accessible to maintenance vehicles at all times. 3. The depth of sewer lines should not exceed 15 feet, with the possible exception of joining the existing system at MacArthur Boulevard. b. Pedestrian Circulation (34) A pedestrian sidewalk system along the public streets shall be constructed throughout the development. The adequacy of such system shall be analyzed independently of any on-site pedestrian walkway system proposed for a particular portion of the development. In addition, connections between Uptown Newport and Koll Center shall be consistent with the Integrated Conceptual Development Plan. C. Bicycle Circulation A system of bicycle paths coordinated with the City's Master Plan of Bicycle Trails and meeting the approval of the Community Development Director and the Director of Parks, Beaches and Recreation shall be developed and maintained within the planned community. d. Erosion Control Landscaping plans shall incorporate provisions for Erosion Control on all graded sites which will remain vacant for a considerable period of time prior to commencement of building construction. e. Traffic Considerations i. Both MacArthur Boulevard and Jamboree Road shall be widened to provide for 6 through lanes, double left turn lanes 3-17 at all intersections, and free right turning lanes at all intersections. ii. Von Karman shall be widened at the intersection with MacArthur Boulevard to provide 6 lanes. iii. All streets on the site except for Von Karman shall be flared to provide at least 5 lanes at intersections with peripheral streets. iv. Birch Street shall be flared to 5 lanes at the intersection with Von Karman. V. Campus Drive shall be widened to provide dual left turn lanes at Von Karman. vi. Von Karman shall be improved for its full length from MacArthur Boulevard to Campus Drive in conjunction with initial development of areas which do not take primary access from Campus Drive or Jamboree Road. vii. Access rights to MacArthur Boulevard shall be dedicated to the City except for the Birch Street and Von Karman Avenue intersections. Consideration may be given to providing additional access points at a later date if more detailed traffic studies demonstrate the desirability of such additional access points. Consideration shall be limited to right turn egress and right and left turn ingress. (11) viii. Traffic signals shall be constructed at the intersections of MacArthur Boulevard with Birch Street and with Von Karman Avenue when the latter two streets are opened. The developer shall be responsible for 50% of the cost of the signal at Von Karman and 50% of the cost of the signal at Birch Street. ix. A traffic signal shall be constructed at the intersection of Campus Drive and Jamboree Road in conjunction with the initial stages of development. The developer shall be responsible for 25% of the cost of the signal. X. A traffic signal shall be installed at the intersection of Von Karman and Birch Street, with the developer to be responsible for 100% of the cost. Construction shall be scheduled so that the signal will be completed not later than June 30, 1977. (8) xi. A traffic signal shall be installed at the intersection of Von Karman and Campus Drive, with the developer to be responsible for 50% of the cost. Construction shall be 3-18 scheduled so that the signal will be completed not later than December 30, 1976. (8) A traffic signal shall be installed at the intersection of Jamboree Boulevard and Birch Street, with the developer to be responsible for 50% of the cost. Construction shall be scheduled so that the signal will be completed not later than June 30, 1977. (8) In order to accomplish the schedule for construction of these two signals, a cooperative agreement may be entered into between the developer and the City. The agreement shall provide for the developer to advance the nondeveloper share of the funding, if necessary; with provisions for reimbursement by the City. The agreement may also provide for a credit to the developer for funds advanced for the City's share of construction costs for signals constructed elsewhere in the project. (8) xii. Provision for other traffic signals shall be investigated in conjunction with the process of development at a later date. xiii. Phasing of Development. 1,651,757 sq. ft. of development was existing or under construction as of October 1, 1978. The additional allowable development in the total approved development plan is 1,058,863 sq. ft. Any further development subsequent to October 1, 1978, in excess of 30% of the additional allowable development, being 317,658 sq. ft., shall be approved only after it can be demonstrated that adequate traffic facilities will be available to handle that traffic generated by the project at the time of occupancy of the buildings involved. Such demonstration may be made by the presentation of a phasing plan consistent with the Circulation Element of the Newport Beach General Plan. (12) f. Airport (2) The following disclosure statement of the City of Newport Beach's policy regarding the Orange County Airport shall be included in all leases or subleases for space in the Planned Community Development and shall be included in the Covenants, Conditions and Restrictions recorded against the property. Disclosure Statement (2) The Lessee herein, his heirs, successors and assigns acknowledge that: 3-19 i The n,.. nge Co John Wayne Airport may not be able to provide adequate air service for business establishments which rely on such service; ii. When an alternate air facility is available, a complete phase out of jet service may occur at the Orange C,.John Wayne Airport; iii. The City of Newport Beach may continue to oppose additional commercial air service expansion at the John Wayne Airport; iv. Lessee, his heirs, successors and assigns will not actively oppose any action taken by the City of Newport Beach to phase out or limit jet air service at the Orange County John Wayne Airport. 3-20 GENERAL NOTES REQUIREMENTS Water within the planned community area is will be furnished by the Irvine Ranch Water District. Prior to or coincidental with the filing of any tentative map or use permit, the developer shall submit a master plan of drainage to the Director of Public Works. The height of all buildings and structures shall comply with Federal Aviation Administration AtAofity criteria. Whenever development regulations or standards of this planned community development plan conflict with the regulations of the Newport Beach Municipal Code, the regulations contained herein shall prevail. The Municipal Code shall regulate this development whenever regulations are not provided within these district regulations. All words and phrases used in this planned community development plan shall have the same meaning and definition as used in the City of Newport Beach Municipal Code unless defined differently within the Koll Center Planned Community Development Plan. The contents of this supplemental text notwithstanding, no construction shall be proposed within the boundaries of this planned community district except that which shall comply with all applicable provisions of the City -adopted California Building Code, Fire Code, and the various mechanical and electrical codes related thereto. 3-21 DEFINITIONS Advertising Surface: The total area of the face of the structure, excluding supports. Area of Elevation: Total height and length of a building as projected to a vertical plane. Building Line: An imaginary line parallel to the street right-of-way line specifying the closest point from this street right-of-way that a building structure may be located (except for overhangs, stairs and sunscreens). Right -of -Waw When reference is made to right-of-way line it shall mean the line which is then established on either the adopted Master Plan of Streets and Highways or the filed Tract Map for Minor Roads as the ultimate right-of-way line for roads or streets. Side and Front of Corner Lots: For the purpose of this ordinance, the narrowest frontage of a lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the structures face. aim Any structure, device or contrivance, electric or non -electric and all parts thereof which are erected or used for advertising purposes upon or within which any poster, bill, bulletin, printing, lettering, painting, device or other advertising of any kind whatsoever is used, placed, posted, tacked, nailed, pasted or otherwise fastened or affixed. Commerce: All those permitted uses as specified in Part II, Section II, Group I through VII, inclusive, in this text. Commercial Land: The site area upon which any or all commercial permitted uses would exist. Site Area: (3) The total land area of the land described in the use or other permit, including footprint lots. 3-22 Special Landscaped Street: Special landscaped streets are designated as MacArthur Boulevard, Jamboree Boulevard and Campus Drive. The landscaping requirements for special landscaped streets and for the remaining streets are described in the following text. Streets - Dedicated and Private: Reference to all streets or rights-of-way within this ordinance shall mean dedicated vehicular rights- of-way. In the case of private or non -dedicated streets, a minimum setback from the right-of-way line of said streets of ten (10) feet shall be required for all structures. Except for sidewalks or access drives, this area shall be landscaped according to the setback area standards from dedicated streets contained herein. Driveway: Vehicular access ways onto or within private property exclusive of streets, dedicated or private. A minimum separation of five (5) feet shall be maintained between all driveways and buildings. Footprint Lot: (3) The area of land required for the building pad, encompassing the peripheral area of the building. Appurtenant and contiguous to the footprint lot shall be all parking, landscape, setbacks and other areas as described and required by this text. Landscape Area: (4) The landscape area shall include walks, plazas, water and all other areas not devoted to building footprints or vehicular parking and drive surfaces. In calculating area of required landscaping any off- site landscaping such as landscaped medians or parkways in street rights-of-way shall not be included. 3-23 PART L INDUSTRIAL — Deleted. (33) 3-24 PART II Section I. Group I COMMERCIAL Site Area and Buildiniz Area PROFESSIONAL & BUSINESS OFFICES Acreages shown are net buildable land area including landscape setbacks with property lines. (4) A. Building Sites (4) Site A Site B Site C Site D Site E Site F Site G TOTAL IC Total Acreage 30.939 acres * (29) 43.703 acres (11) 18.806 acres (10) 19.673 acres 2.371 acres 1.765 acres 5.317 acres (8) 117.114 acres (8)(10)(11) Allowable Building Area Site A Site B Site C Site D Site E Site F Site G TOTAL Office Acreage 30.939 acres *(29) 43.703 acres (11) 18.806 acres (10) 19.673 acres 2.371 acres 1.765 acres 5.317 acres (8) 117.114 acres(8)(10)(11) 366,147 square feet (16)(26)(29)(30) 977,720 square feet (13)(16)(28)(30)(32) 674,800 square feet (10)(15) 240,149 square feet (8)(13) 32,500 square feet (4) 42,646 square feet (4)(3 1) 45,000 square feet (8) 2,378,962 square fee t_(I5)(*)(31) 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. One (1) space per 225 square feet of net building area @ 120 cars per acre for Sites C, D, E, F and G. 3-25 *(3)(4) In addition to 19.399 acres of office use, there is 9.54 acres for hotel and motel and 2.0 acres of lake within Office Site A. Therefore, there are 30.939 acres net within Office Site A. (3)(4)(16) 2 b. One (1) space per 300 square feet of net building area @ 120 cars per acre for Sites A, B and C. (11) Site A Allowable Building Area Site Area Q 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 Parking 1,221 cars 366,147 square feet (16)(26)(29)(30) ...... 19.399 acres *(3)(4)(16) Land Coverage (16)(29)(30) ............... 4.20 acres ............... 2.80 acres ............... 2.10 acres ............... 1.68 acres ............... 1.40 acres ............... 1.20 acres ............... 1.05 acres ............... 0.93 acres ............... 0.84 acres ............... 0.76 acres ............... 0.70 acres Land Coverage .............. 10.18 acres (11,16,29,30) C. Landscaped Open Space (4, 11,16) Land Coverage (29,30) Two story development ............... 5.02 acres Three story development ............... 6.42 acres Four story development ............... 7.12 acres Five story development ............... 7.54 acres Six story development ............... 7.80 acres Seven story development ............... 8.02 acres Eight story development ............... 8.17 acres Nine story development ............... 8.29 acres Ten story development ............... 8.38 acres Eleven story development ............... 8.46 acres Twelve story development ............... 8.52 acres Allowable Building Area ......... 977,720 square feet (13,16,28,30) Site Area ......... 43.703 acres (4) (11) 3-26 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-,2-59 3,261 cars (34) C. Landscaped Open Space (11) 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 3. Site C (10) Allowable Building Area Site Area 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 (16,28,30,32)) ............... 11.22 acres ............... 7.48 acres ............... 5.61 acres ............... 4.49 acres ............... 3.74 acres ............... 3.21 acres ............... 2.81 acres ............... 2.49 acres ............... 2.24 acres ............... 2.04 acres ............... 1.87 acres Land Coverage (11,13,16,28,30) ............... 27.16 acres Land Coverage (11,13,16,28,30,32)) ............... 5.32 acres ............... 9.06 acres ............... 10.93 acres ............... 12.05 acres ............... 12.80 acres ............... 13.33 acres ............... 13.73 acres ............... 14.05 acres ............... 14.30 acres ............... 14.50 acres ............... 14.67 acres 674,800 square feet (15) (17)* 18.806 acres (4) Land Coverage (15) ............... 7.75 acres ............... 5.16 acres ............... 3.87 acres ............... 3.10 acres ............... 2.58 acres ............... 2.21 acres ............... 1.94 acres ............... 1.72 acres ............... 1.55 acres ............... 1.41 acres ............... 1.29 acres 3-27 b. Parking 2,249 cars Land Coverage (15) ............... 18.74 acres * The square footage includes a maximum of 3,250 square feet for up to two (2) restaurants, bars, or theater/nightclubs. Any portion or all of the floor area not utilized for the purpose shall revert to professional and business office use. (17) C. Landscaped Open Space Land Coverage (4)(15) Two story development ............... -7.68 acres Three story development ............... -5.09 acres Four story development ............... -3.80 acres Five story development ............... -3.03 acres Six story development ............... -2.51 acres Seven story development ............... -2.14 acres Eight story development ............... -1.87 acres Nine story development ............... -1.65 acres Ten story development ............... -1.48 acres Eleven story development ............... -1.34 acres Twelve story development ............... -1.24 acres 4. Site D Allowable Building Area ......... 240,149 square feet (8)(13) Site Area ......... 19.673 acres (4) a. Building Height Land Coverage(8) (13) Two story development ............... 2.75 acres Three story development ............... 1.84 acres Four story development ............... 1.38 acres Five story development ............... 1.10 acres Six story development ............... 0.92 acres Seven story development ............... 0.79 acres Eight story development ............... 0.69 acres Nine story development ............... 0.61 acres Ten story development ............... 0.55 acres Eleven story development ............... 0.50 acres Twelve story development ............... 0.46 acres b. Parking Land Coverage (8) (13) 1,067 cars ............... 8.89 acres 3-28 c 5. Site E 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 Allowable Building Area Site Area 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 144 cars C. Landscaped Open Space (4) 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 (4) (8) (13) ............... 8.03 acres ............... 8.94 acres ............... 9.40 acres ............... 9.68 acres ............... 9.86 acres ............... 9.99 acres ............... 10.09 acres ............... 10.17 acres ............... 10.23 acres ............... 10.28 acres ............... 10.32 acres ......... 32,500 square feet (4) ......... 2.371 acres (4) Land Coverage (4) ............... 0.37 acres ............... 0.25 acres ............... 0.19 acres ............... 0.15 acres ............... 0.12 acres ............... 0.11 acres ............... 0.10 acres ............... 0.09 acres ............... 0.08 acres ............... 0.07 acres ............... 0.06 acres Land Coverage (4) ............... 1.20 acres Land Coverage ............... 0.80 acres ............... 0.92 acres ............... 0.98 acres ............... 1.02 acres ............... 1.05 acres ............... 1.06 acres ............... 1.07 acres ............... 1.08 acres ............... 1.09 acres ............... 1.10 acres ............... 1.11 acres 3-29 6. Site F (4)(3 1) Allowable Building Area Site Area a. 15 C Building Height One story development Two story development Three story development Four story development Five story development Six story development Parkinz 190 cars Landscaped Open Space One story development Two story development Three story development Four story development Five story development Six story development 7. Site G (8) Allowable Building Area Site Area a. Q C Building Height One story development Two story development Three story development Four story development Parking 200 cars Landscaped Open Space One story development Two story development Three story development Four story development ......... 42,646 square feet ......... 1.765 acres Land Coverage ............... 0.98 acres ............... 0.49 acres ............... 0.33 acres ............... 0.24 acres ...........0.20 acres ............0.16 acres Land Coverage ............... 1.58 acres Land Coveraize ............... <0.80> acres ............... <0.31> acres ............... <0.15> acres ............... <0.06> acres .................<0.02> acres .............. <0.03> acres ......... 45,000 square feet ......... 5.317 acres Land Coveraize ............... 1.03 acres ............... 0.52 acres ............... 0.34 acres ............... 0.26 acres Land Coverage ............... 1.67 acres Land Coverage ............... 2.62 acres ............... 3.13 acres ............... 3.31 acres ............... 3.39 acres 3-30 Building Height Maximum building height shall not exceed twelve (12) stories above ground level; and shall in no way exceed the height limits set by the Federal Aviation Administration Authority for Conclusions The preceding figures indicate that within a fixed maximum density as the height of the building increases the resulting open landscaped area also increases. Group II. HOTEL & MOTEL (1) Group III. a r. Building Sites For the purposes of this statistical analysis, 9.54 acres have been allotted for hotel and motel development. This acreage is for statistical purposes only. It is necessary to allot a specific acreage within this analysis to secure office building densities within their specific parcels. Development may include but shall not be limited to this acreage. The hotel and motel site size shall be determined at the time a use permit is secured. B. Building Height Maximum building height shall not exceed height limits set by the Federal Aviation Administration Auffierity for Ormge Cetmty Airport. COURT HOUSE A. Building Site Site 1: 7.80 acres ........ Building Area Site 1: 90,000 square feet ... ........ 7.80 acres 90,000 square feet The following statistics are for information only. Development may include but shall not be limited to the following. C. Parkin 400 Cars............................................................... 3.33 acres D. Landscaped Open Space Land Coverage Two story development ........................................ 3.44 acres Three story development ...................................... 3.78 acres Four story development ........................................ 3.95 acres 3-31 Five story development ......................................... 4.06 acres Six story development ........................................... 4.13 acres E. Building Height Maximum building height shall not exceed height limits set by the Federal Aviation Administration " ather-ity for- n,., nge r,., pAy n ;,.. ei4 3-32 Group IV. SERVICE STATIONS A. Building Sites (4) (5) (11) Site 3: 1.765 acres ................................... 1.765 acres Service station site 3 shall be located within Office Site F and shall not exceed 1.765 acres in size. Any portion or all of Site 3 not utilized for service station use shall revert to either professional and business office use or restaurant use. (4) Group V. 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 acres Site 3 .................................................... 1.765 acres Site 4 Deleted......................................................(30) Site 5 Deleted .................................................... (30) Site 6 .................................................... 1.50 acres (8) Site 7 .................................................... 0.70 acres (8) 5.215 acres ...........5.215 acres (30) Site 1 Deleted see Group VII Private Club (18) Site 2 (4101 Jamboree — Taco Bell) located within Office Site `B" (4)(16)(3 0) Site 3 located within Office Site "F". (4) Site 4 (4300 Von Karman Avenue — Koto Restaurant) deleted and reverted to Site B Professional and Business Office Allowable Building Area. (30) Site 5 deleted from Office Site `B" and transferred to Office Site "A" as Professional and Business Office Allowable Building Area (30) 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) 3-33 The following statistics are for information only. Development may include but shall not be limited to the following. B. Building Area (4)(8) (30) C Site 2 ................ 2,397sq. ft. ...... 0.06 acres (30) Site 3 ................ 10,000 sq. ft. ...... 0.22 acres Site 4 ................ Deleted Site 6 (8) .... Site 5 ................ Deleted 0.38 acres Site 6 (8) .......... 7,000 sq. ft. ...... 0.16 acres Site 7 (8) .......... 3,000 sq. ft. ...... 0.07 acres 22,397 sq. ft. ...... 0.51 acres ..... Parkin .0.51 acres (8, 18, 30) Criteria: 300 occupants/ 10,000 sq. ft. 1 space/3 occupants and 120 cars per acre. Site 2 .......... 24 cars ............. 0.20 acres (30) Site 3 .......... 100 cars ............... 0.84 acres Site 4 .......... Deleted Site 6 (8) .... Site 5 .......... Deleted 0.38 acres Site 6 (8) ... 70 cars ............... 0.58 acres Site 7 (8) ... 30 cars ............... 0.25 acres 1.87 acres ....... 1.87 acres (8) (18)(30) Landscaped Open Space (4) (30) Site 2 .......... 0.99 acres (30) Site 3 .......... 0.70 acres Site 4 .......... Deleted Site 5 .......... Deleted Site 6 (8) .... 0.76 acres Site 7 (8) .... 0.38 acres 2.83 acres ......................................... 2.83 acres (8) (18)(30) E. Building Height Building height of structures shall be limited to a height of thirty-five (35) feet. 3-34 Group VI. RETAIL & SERVICE CENTER A. Building Site (4) (5) Site 1 .......... 5.026 acres Site 2 Deleted (30) 5.026 acres ... .......... 5.026 acres (30) Site 2 shall be located within Office Site `B." Any portion or all of the retail and service Site 2 acreage not utilized for that purpose shall revert to professional and business office use. (4) (16) Site 2 deleted from Office Site "B" and transferred to Office Site "A" as Professional and Business Office Allowable Building Area. (30) B. Allowable Building (5) * Retail Site No. 1 .......... 120,000 sq. ft. (14)(27) Retail Site No. 2 .......... Deleted (30) * Retail Site No. 1 (sq. Ft.) Parcel Existing Total Parcel 1, R/S 588 (H) (H) 70,630 Parcel 3, R/S 506 (R) (R) 0 (0) (0) 22,000 Parcel 4, R/S 506 (R) 4,115 (R) 21,896 (0) 0 (0) 5,474 Subtotal (R) 12,315 (R) 21,896 (0) 0 (0) 27,474 (H) 70,630 Total 120,000 (14)(271 (R) = Retail C. Landscape Area (5) (0) = Office (H) = Hotel 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. 3-35 D. Statistical Anal (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. 1. Site 1 Allowable Building Area .................................... 120,000 sq. ft. (14)(27) Site Area............................................................................. 5.026 acres a. Building Height (14) Two story development .......................................... 1.17 acres Three story development ........................................ 0.78 acres Four story development .......................................... 0.59 acres Five story development ........................................... 0.47 acres b. Parking (14) 460 cars................................................................... 3.83 acres C. Landscaped Open Space (14) Two story development .......................................... 0.03 acres Three story development ........................................ 0.87 acres Four story development ......................................... 0.61 acres Five story development .......................................... 0.73 acres 2. Site 2 Deleted (30) 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) Building height of structures for Service Site 1 shall be limited to a height of sixty feet (27) Group VII. PRIVATE CLUB (18) A. Building Site Site 1 2.0 acres 2.0 acres Site 1 shall be located within Office Site "A." Any portion or all of the private club acreage not utilized for that purpose shall revert to professional and business office use. 1. Site 1 3-36 Allowable Building Area ........................................45,000 square feet (26) B. Building Height Building height of structures shall be limited to a height of fifty (50) feet. Section II. Permitted Uses Group I. PROFESSIONAL AND BUSINESS OFFICES To allow the location of commercial activities engaged in the sale of products or services relating to and supporting the Development Plan, provided that such activities are confined within a building or buildings. A. Professional Offices similar in nature to but not limited to the following: (6) 1. Accountants 2. Attorneys 3. Doctors, dentists, optometrists, oculists, chiropractors and others licensed by the State of California to practice the healing arts. 4. Engineers, architects, surveyors and planners. B. Business Offices similar in nature to but not limited to the following: (6) 1. Advertising agencies 2. Banks 3. Economic consultants 4. Employment agencies 5. Escrow offices 6. Insurance agencies 7. Laboratories a. Dental b. Medical c. X -Ray d. Bio -chemical e. Film, wholesale only f. Optometrical 8. Stockbrokers 9. Studios for interior decorators, photographers, artists and draftsmen. 10. Telephone answering services 11. Tourist information and travel agencies C. Hotel and Motel (1) To allow for the location within Office Site "A" of a hotel or motel development, subject to a use permit. 3-37 D. Restaurants, bars and theater/nightclubs subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (1) (3) (4) (7) (25) 1. Deleted (18) * 2. To allow within the 43.703 acres of Office Site `B" three (3) restaurant, bar or theater/nightclub sites. (16) 3. To allow within the 18.806 acres of Office Site "C" up to two (2) restaurant, bar or theater/nightclub sites with a total area not to exceed 3,250 square feet. Specific location of these restaurants, bars or theater/nightclubs to be determined at a later date. The permitted professional and business offices' allowable building area for the site will be reduced accordingly. (17) 4. To allow within the 1.765 acres of Office Site "F" two (2) restaurant, bar or theater/nightclub sites. Specific location of these sites to be determined at a later date. All other acreage shall be adjusted and shall not increase or decrease the professional and business offices allowable building area for the site. To allow within the 5.317 acres of Office Site "G" three (3) restaurant, bar or theater/nightclub sites. Specific location of these sites to be determined at a later date. All other acreage shall not increase or decrease the professional and business offices' allowable building area for the site. (8) (25) * E. Private Club (4) (18) (26) To allow within Office Site "A" one (1) private club site at 4110 MacArthur Boulevard. F. Service Station (4) To allow within Office Site "F" one (1) service station site. Specific location to be determined at a later date. All other acreages shall be adjusted and shall not increase or decrease the professional and business office allowable building area for the site. * (4) If restaurant, bar or theater/nightclub, or private club uses are developed, the allowable building area for Office Site `B" shall be restricted by one of the following conditions: 1. The 963,849 square feet of allowable building area shall not increase or decrease so long as twenty-five (25) percent of the 41.969 acres constituting Office Site "B" is developed as landscaped area. (16) 3-38 2. If twenty-five (25) percent of the 42.709 acres constituting Office Site `B" is not developed as landscape area, the 963,849 square feet of allowable building area shall be reduced by the gross building area of the restaurants, bars or theater/nightclubs and/or private club. The allowable building area shall be further reduced by the number of additional parking spaces required to support a restaurant, bar or theater/nightclub, or a private club beyond what would be required for an equivalent area of office use. The reduction shall be 225 square feet per additional space. (16) G. Support Commercial (20) The uses permitted under this section are of a convenience nature ancillary to the operation and use of office facilities. These uses shall be in addition to those sites permitted under Part H. Section II. Group V (Restaurants). These uses shall not increase the allowable building area for Professional and Business Office. Retail sales and services including tobacco stores, card shops, confectionery and newspaper stands, and other uses which, in the opinion of the Plawiin Community Development Director, are of a similar nature. Retail uses shall be located in the basement or on the first floor of a building. Storage for such uses shall be within a building. 2. Restaurants, including outdoor restaurants and take-out restaurants, bars or theater/nightclubs shall be permitted subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (25) Group II. HOTEL & MOTEL (1) Subject to a use permit. Group III. COURT HOUSE State, County and/or City Facilities. Group IV. SERVICE STATIONS & MECHANICAL CAR WASH (4) A. Service stations subject to the City of Newport Beach service station standards. B. Mechanical car wash, subject to a use permit. Mechanical car wash shall only be allowed in conjunction with or in lieu of a permitted service station use. Group V. RESTAURANTS (7) A. Restaurants, including outdoor, drive-in or take-out restaurants, bars and theater/nightclubs, shall be subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each 3-39 case. Facilities other than indoor dining establishments or those that qualify as outdoor, drive-in or take-out establishments shall be subject to the City of Newport Beach regulations covering drive-in and outdoor establishments. (25) Group VI. RETAIL & SERVICE CENTER (1) A. Permitted Uses 1. Restaurants, including outdoor, drive-in or take-out restaurants, bars and theater/nightclubs, shall be permitted subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case, except as noted under "a" and "b" below. (7) (25) a. Restaurants, other than outdoor, drive-in or take-out restaurants, shall be permitted subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (25) b. Outdoor, drive-in or take-out restaurants shall be subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (25) 2. Barber shop and beauty parlor 3. Book and stationery store 4. Blueprinting and photostatics 5. Camera Shop 6. Delicatessen store 7. Florist 8. Shoe store or repair shop 9. Tailor 10. Tobacco store 11. Office equipment rentable and repair 12. Pharmacies 3-40 13. Tourist information, travel agencies, and ticket reservation services, but not to include any airline terminal services or facilities for the transport of passengers, baggage, or freight. (1) 14. Athletic club or health clubs (5) * 15. Professional and Business Offices (5) 16. Other uses similar to the above listed 17. Hotel subject to approval of a Use Permit (27) Group VII. LODGE HALLS, PRIVATE CLUBS, ATHLETIC CLUBS, UNION HEADUARTERS (1) (4) (18) Subject to use permit. Group VIII. AUTO DETAILING (19) A. All drainage shall be into the sanitary sewer system. B. That all car wash and auto detailing operations shall be conducted within a covered area. C. This service shall be designed to serve building tenants and their patrons and guests, and shall be ancillary to the primary use. Section III. General Development Standards for Commercial Land A. Site Area Minimum site area shall not be less than thirty thousand (30,000) square feet. Footprint lots shall have all required appurtenant areas contiguous thereto and the sum of these areas shall not be less than thirty thousand (30,000) square feet. (3) * To allow, in addition to the 2,320,600 square feet of professional and business office use permitted elsewhere in the text, a maximum of 38,022 net square feet of professional and business office use within Retail and Service Center Site 1. (5) (14) Exception: (9) The Planning Commission may authorize an exception to the minimum site area. Application for any such exception shall be made at the time of the filing of a tentative map by the applicant. In order for an exception to be granted, the Planning Commission shall find the following facts with respect thereto: 3-41 1. That the granting of the exception will not be detrimental to the public welfare or injurious to other property in the vicinity. 2. That the Development Considerations and intent of this planned Community Development Standards are substantially met. B. Building Area Maximum building area for professional and business offices shall be as noted in Site Area and Building Area, Part II, Section I, Group 1. C. Setbacks All setbacks shall be measured from the property line. For the purpose of this ordinance, a street side property line is that line created by the ultimate right-of-way of the frontage street. 1. Front Yard Setback (10) Thirty (30) feet minimum; except that unsupported roofs or sunscreens may project six (6) feet into the setback area. The setback for Site C from MacArthur Boulevard would be at least thirty-six (36) feet except that unsupported roofs or sun- screens any project six (6) feet into the setback. 2. Side Yard Side yard setbacks will be required only when any one of the following conditions exist: a. Corner Lot: Thirty (30) feet (street side setback only), except that unsupported roofs and sunscreens may project three (3) feet into setback area. b. Where property abuts other than commercially zoned property, a ten (10) foot setback is required. Unsupported roofs and sunscreens may project three (3) feet into the setback area. 3. Rear Yard None required except on a through -lot in which case the required front yard setback shall be observed. 4. Footprint Lots (6) 3-42 Except as required by the Uniform Building Code, there shall be no additional setback requirements for buildings within footprint lots. Provided, however, that buildings within footprint lots shall be so located as to observe the setbacks from streets and existing lot lines required under Part II, Section III, C.1,2and 3. D. Loading Areas 1. Street side loading on other than special landscaped streets shall be allowed providing the loading dock is set back a minimum of seventy (70) feet from the street right-of-way line, or one hundred ten (I 10) feet from the street center line, whichever is greater. Said loading area must be screened from view from adjacent streets. E. Storage Areas 1. All outdoor storage shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen up to a point eight (8) feet in vertical height, but need not be opaque above that point. 2. Outdoor storage shall be meant to include all company owned and operated motor vehicles, with the exception of passenger vehicles. 3. No storage shall be permitted between a frontage street and the building line. F. Refuse Collection Areas 1. All outdoor refuse collection areas shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen. 2. No refuse collection area shall be permitted between a frontage street and the building line. G. Telephone and Electrical Service All "on-site" electrical lines (excluding lines in excess of 12KV) and telephone lines shall be placed underground. Transformer or terminal equipment shall be visually screened from view from streets and adjacent properties. 3-43 H. Pedestrian Access (1) It is required of all developments in the commercial areas to submit a plan of pedestrian access to the Community Development Plannin-g-Department prior to the issuance of building permits. Said plan will detail consideration for pedestrian access to the subject property and to adjacent properties and shall be binding on subsequent development of the property. The plan shall show all interior walkways and all walkways in the public right-of-way, if such walkways are proposed or necessary. I. Parkin All parking shall be as specified in the General Parking Requirements, Part III. All signing shall be as specified in the General Sign Requirements, Part IV. K. Landscape All landscaping shall be as specified in the General Landscape Requirements, Part V. 3-44 PART III. GENERAL PARKING REQUIREMENTS Section I A. Adequate off-street parking shall be provided to accommodate all parking needs for the site. The intent is to eliminate the need for any on -street parking. Required off-street parking shall be provided on the site of the use served, or on a contiguous site, or within three hundred (300) feet of the subject site. Where parking is provided on other than the site concerned, a recorded document shall be approved by the City Attorney and filed with the Community Development Department Biiildiag and Planning Departments and signed by the owners of the alternate site stipulating to the permanent reservation of use of the site for said parking. B. Parking requirements for specific sites shall be based upon the following parking criteria. All parking shall be determined based upon building type and the area within allotted to the following functions: 1. Business & Professional Offices One (1) space for each 225 square feet of net floor area. The parking requirement may be lowered to one (1) space for each 250 square feet of net floor area upon review and approval of the modification committee. Company parking stalls shall not exceed twenty-five (25) percent of the total number of required parking spaces. The number and design of compact parking stalls shall be reviewed and approved by the Plawiin Community Development Director. (11) Exception: (11) Parking Requirement for Business and Professional Office Buildings based on Parking Pool. The parking requirements for office buildings within a contiguous office site may be modified in accordance with the following schedule when the net building area or areas served exceeds 100,000 square feet. a. For the first 125,000 square feet, parking shall be provided at one space per 250 square feet of net floor area. b. For the next 300,000 square feet, parking shall be provided at one space per 300 square feet of net floor area. C. Any additional floor area, parking shall be provided at one space per 350 square feet of net floor area. 3-45 d. For pools based on more than 425,000 square feet of net floor area, the Planning Commission may modify the parking formula by use permit, based on a demonstrated formula. 2. Medical & Dental Offices Five (5) spaces for each doctor or one (1) space for each 200 square feet of gross floor area, whichever is greater. 3. Manufacture, Research and Assembly - Deleted. (33) 4. Warehouse - Deleted. (33) 5. Lodge Halls, Private Clubs, Athletic Clubs, Union Headquarters (1) (4) (5) a. One (1) space for each 75 square feet of gross floor area plus one (1) space for each 250 square feet of gross office floor area. b. Specific parking requirements shall be developed for private clubs or athletic clubs based upon functions and occupancies within this use. Parking shall be in conformance to existing City of Newport Beach requirements for said occupancies or at a demonstrated formula agreeable to the Plannin Community Development Director. (4) In the event that private clubs or athletic clubs are converted to another use, parking requirements for the new use shall be subject to review by the Planp�g Community Development Director. (5) 6. Restaurants, Bars or Theater/Nightclubs, Outdoor, Drive -In and Take -Out Restaurants (7) a. Restaurant, bar or theater/nightclub parking shall be in accordance with Title 20 of the Newport Beach Municipal Code, except as noted under "b" and "c" below. * b. Restaurants, other than outdoor, drive-in or take-out restaurants, within retail and service centers shall provide one (1) space for each 200 square feet of net floor area and one (1) loading space for each 10,000 square feet of gross floor area, to the extent that the net floor area of all restaurants does not exceed twenty (20) percent of the net floor area of the retail and service center. In the event that any restaurant causes the total of all restaurant uses in the retail and service center to exceed the twenty (20) percent limitation noted above, that entire restaurant and any subsequent restaurants shall provide parking as noted under "a" above. 3-46 C. Parking for outdoor, drive-in and take-out restaurants shall be provided in accordance with Section 20.53.060 of the Newport Beach Municipal Code. 7. Commercial Retail and Service Center (5) One (1) space for each 200 square feet of net floor area. One (1) loading space for each 10,000 square feet of gross floor area. Professional and business office parking shall be provided per Part III, Section I.B.1. Athletic or health club parking shall be provided per Part 111, Section 1.B.5b. 8. Hotels and Motels One (1) space for each guest unit plus employees' parking on a demonstrated formula. Parking for restaurants, bars, banquet rooms, retail shops or service stores shall be as specified in the above applicable section or on a demonstrated formula acceptable to the Plawiin Community Development Director. * Professional and business office net floor area shall be included in this provision. Athletic and health club net floor area shall be excluded from this provision. (5) 9. Court House Specific parking requirements shall be developed based upon functions and occupancies within this zone. Parking shall be in conformance to existing City of Newport Beach requirements for said occupancies, or at a demonstrated formula agreeable to the Plannin Community Development Director. 3-47 PART IV. GENERAL SIGN REQUIREMENTS Section I. Sign Standards A. Signs visible from the exterior of any building may be lighted, but no signs or any other contrivance shall be devised or constructed so as to rotate, gyrate, blink or move in any animated fashion. B. Signs shall be restricted to advertising only the person, firm, company or corporation operating the use conducted on the site or the products sold thereon. C. A wall sign with the individual letters applied directly shall be measured by a rectangle around the outside of the lettering and/or the pictorial symbol and calculating the area enclosed by such line. D. All signs attached to the building shall be surface mounted. Group I. PERMANENT IDENTIFICATION SIGNS A. Ground Signs Ground signs shall not exceed four (4) feet above grade in vertical height. Also, ground signs in excess of one hundred and fifty (150) square feet in area (double face) shall not be erected in the first twenty (20) feet, as measured from the property line, of any street side setback. Said sign shall not exceed a maximum area of two hundred (200) square feet. B. Wall Signs In no event shall an identification sign placed on a wall comprise more than ten (10) percent of the area of the elevation upon which the sign is located. Said signs shall be fixture signs. Signs painted directly on the surface of the wall shall not be permitted. The following exceptions apply to industrial zoning only. In the instance of a multiple tenancy building, each individual industry may have a wall sign over the entrance to identify the tenant. Said sign shall give only the name of the company and shall be limited to six (6) inch high letters. Said signs must be oriented toward the parking or pedestrian area for that building and shall not exceed a maximum area of five (5) square feet. 2. Fascia mounted identification signs limited to two (2) facades for each building and structure. 3-48 Group II. No sign shall exceed an area equal to one and one-half (1 1/2) square feet of sign for each one (1) foot of lineal frontage of the building or store. However, no sign shall exceed two hundred (200) square feet in area per face. 3. The following exceptions apply to Professional and Business Offices and Retail and Service Center uses only. In the instance of a multiple tenancy building, each individual ground floor business may have signing in addition to permitted Building Identification signs. (6) Each individual ground floor business shall be limited to one (1) sign per frontage not to exceed two (2) signs per business. Said signs shall not be located above the ground floor fascia. No sign shall exceed an area equal to ten (10) percent of the business face upon which it is located. However, no sign shall exceed thirty-five (35) square feet in area. (6). In no event shall there be more than three (3) permitted ground floor wall signs per building for Professional and Business Offices. (6) C. Pole Signs One (1) identification pole sign per site will be allowed for the following commercial businesses only: a. Restaurant b. Cocktail lounge and/or bar C. Hotel If a pole sign is utilized, it shall be in lieu of other identification signs allowed by ordinance. Pole signs shall be limited to a maximum height of twenty (20) feet and a maximum area of fifty (50) square feet per face, double faced. TEMPORARY IDENTIFICATION SIGNS A. The following signs shall conform to all requirements for "Ground Signs," Section I, Group I, Item A with General Sign standards above unless specifically limited below. 1. Sale or Lease Sign A sign, advertising the sale, lease or hire of the site shall be permitted in addition to the other signs listed in this section. 3-49 Said sign shall not exceed a maximum area of forty (40) square feet. 2. Construction Sign One (1) construction sign denoting the architects, engineers, contractor, and other related subjects, shall be permitted upon the commencement of construction. Said sign shall be permitted until such time as a final inspection of the building(s) designates said structure(s) fit for occupancy, or the tenant is occupying said building(s), whichever occurs first. Said sign shall not exceed a maximum area of forty (40) square feet. 3. Future Tenant Identification Sign A sign listing the name of future tenant, responsible agent or realtor, and identification of the industrial complex shall be permitted. Said sign will be permitted until such time as a final inspection of the building(s) designates said structure(s) fit for occupancy or tenant is occupying said building(s), whichever occurs first. Said sign shall not exceed a maximum area of forty (40) square feet. 4. Directional Signs Signs used to give directions to traffic or pedestrians or give instructions as to special conditions shall not exceed a total of six (6) square feet (double face) in area and shall be permitted in addition to the other signs in this section. 5. Exceptions Group II.A.1, 2 and 3: this information may be grouped on a single sign when the aggregate surface area does exceed the summation of the individual areas for each use. This area may be distributed on all surfaces of the sign. This sign may not exceed four (4) feet above grade. Group III. SPECIAL PURPOSE SIGNS A. The following permanent signs shall be permitted. 1. Permanent Directional Sign Signs used to give directions to traffic or pedestrians as to special conditions shall not exceed a total of six (6) square feet 3-50 in area per face, double faced and shall be permitted in addition to other signs permitted in these standards. 2. Community Directional and/or Identification Sign Permanent directional and identification signs, not exceeding two hundred fifty (250) square feet (per face), shall be permitted but subject to use permit. Section II. Sign Area A. Industrial - Deleted. (33) B. Industrial Support Facilities and — Deleted. (33) Business and Professional Offices (33) The following shall apply to Permitted Uses, Part I, Section III. No sign shall exceed an area equal to one and one-half (1 1/2) square feet of sign for each one (1) foot of lineal frontage of the building. However, no sign shall exceed two hundred (200) square feet in area per face. C. Commercial The following shall apply to Permitted Uses, Part II, Section II, Groups II, III, V and VI. Building identification shall be limited to a single entity. Building identification signs shall have an area not to exceed one and one-half (1 1/2) square feet of surface for each one (1) foot of lineal frontage of building. However, no sign shall exceed two hundred (200) square feet per face. Building identification signs shall be limited to two (2) facades. D. Business and Professional Offices The following shall apply to Permitted Uses, Part II, Section II, Group 1. Building identification shall be limited to a single entity. Building identification signs shall have an area not to exceed one and one-half (1 1/2) square feet of surface for each one (1) foot of lineal frontage of building. However, no sign shall exceed two hundred (200) square feet per face. Building identification signs shall be limited to two (2) facades. 3-51 Section III. Maintenance All signs indicated in this section shall be maintained in a neat and orderly fashion. Periodic inspection shall be made as directed by the Plannin Community Development Director, City of Newport Beach or his designated agent. 3-52 PART V. GENERAL LANDSCAPE STANDARDS Section I. General Statement (1) Detailed landscape and irrigation plans, prepared by a registered Architect or under the direction of a Landscape Architect, shall be submitted to and approved by the Planning Community Development Director and the Director of Parks, Beaches and Recreation prior to issuance of a building permit and installed prior to issuance of Certificate of Use and Occupancy. Landscape in the public right-of-way shall be installed per plans and specifications approved by the Parks, Beaches and Recreation Director and in accordance with Parks, Beaches and Recreation Standards. All landscaping in this section shall be maintained in a neat and orderly fashion. Periodic inspections will be made as directed by the Plannin Community Development Director and reports submitted with regard to the condition of maintenance. If suggestions of improvement are made, and are in the realm of the Maintenance Standards, the work shall be corrected within thirty (30) days of receipt of the report. A. Maintenance All planting areas to be kept free of weeds and debris. 2. Lawn and ground covers to be kept trimmed and/or mowed regularly. 3. All plantings to be kept in a healthy and growing condition. Fertilization, cultivation and tree pruning are to be carried out as part of regular maintenance. 4. Irrigation systems are to be kept in working condition. Adjustment and cleaning of system should be a part of regular maintenance. 5. Stakes, guys and ties on trees should be checked regularly for correct function; ties to be adjusted to avoid creating abrasions or girdling to the stems. 6. Damage to plantings created by vandalism, automobile or acts of nature shall be corrected within thirty (30) days. B. Front Yard Setback Area General Statement 3-53 Landscaping in these areas shall consist of an effective combination of street trees, trees, ground cover and shrubbery. All unpaved areas not utilized for parking shall be landscaped in a similar manner. Full coverage of ground cover to be expected in a minimum of three (3) months. 2. Special Landscaped Street The entire area between the curb and the building setback line shall be landscaped, except for any driveway in said area. Tree size to be no less than 24 -inch box. 3. Other Streets The entire area between the curb and a point ten (10) feet back in the front property line shall be landscaped except for any driveway in said area. Tree size to be no less than 24 inch box. C. Side Yard and Rear Yard General Statement All unpaved areas not utilized for parking and storage, shall be landscaped utilizing ground cover and/or shrub and tree materials. 2. Undeveloped Areas Undeveloped areas proposed for future expansion shall be maintained in a weed free condition, but need not be landscaped. 3. Screening Areas used for parking shall be screened from view or have the view interrupted by landscaping and/or fencing from access streets, freeways and adjacent properties. Plant materials used for screening purposes shall consist of lineal or grouped masses of shrubs and/or trees of a sufficient size and height to meet this requirement when initially installed. 4. Boundary Areas Boundary landscaping is required on all interior property lines. Said areas shall be placed along the entire length of these property lines or be of sufficient length to accommodate the number of required trees. Trees, equal in number to one (1) 3-54 tree per twenty-five (25) lineal feet of each property line, shall be planted in the above defined areas in addition to required ground cover and shrub material. Minimum width of property line landscaping shall be three (3) feet. 5. All landscaped areas shall be separated from adjacent vehicular areas by a wall or curb, at least six (6) inches higher than the adjacent vehicular area. D. Parkin Trees, equal in number to one (1) per each five (5) parking stalls, shall be provided in the parking area. Planting area around building shall not be included in parking area. Planting of trees may be in groups and need not necessarily be in regular spacing. E. Sloped Banks All sloped banks greater than 5 to 1, or six (6) feet in vertical height and adjacent to public right-of-way shall be stabilized, planted and irrigated with full coverage in accordance with plans submitted and approved by Pla+miii Community Development Director. F. Loading Areas Street side loading on other than special landscaped streets, shall be allowed providing the loading dock is set back a minimum of seventy (70) feet from the street right-of-way line or one hundred ten (110) feet from the street center line, whichever is greater. Said loading area must be screened from view from adjacent streets. G. Storage Areas 1. All outdoor storage shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen up to a point eight (8) feet in vertical height but need not be opaque above that point. 2. Outdoor storage shall be meant to include all company owned and operated motor vehicles, with the exception of passenger vehicles. 3. No storage shall be permitted between a frontage street and the building line. H. Refuse Collection Areas 3-55 1. All outdoor refuse collection areas shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen. 2. No refuse collection area shall be permitted between a frontage street and the building line. 3. Minimum width for landscaping shall be three (3) feet around refuse collection areas. I. Telephone and Electrical Service All "on-site" electrical lines (excluding lines in excess of 12 KV) and telephone lines shall be placed underground. Transformer or terminal equipment shall be visually screened from view from streets and adjacent properties, or an approved method of display. J. Pedestrian Access (1) It is required of all developments in the commercial areas to submit a plan of pedestrian access to the Community Development Department prior to the issuance of building permits. Said plan will detail consideration for pedestrian access to the subject property and to adjacent properties, and shall be binding on subsequent development of the property. The plan shall show all interior walkways and all walkways in the public right-of-way, if such walkways are proposed or necessary. K. Landscape Plant Vocabulary (1) It is the intent of this standard to provide flexibility and diversity in plant selection yet maintain a limited variety to give greater unity to the development. At the direction of the Director of Community Development and the Director of Parks, Beaches and Recreation, material lists and a street tree master plan shall be developed to aid in this development. All trees occurring in the ten (10) foot setback shall be no less than 24 inch box. The parking lot trees shall be no less than fifteen (15) gallon size. Shrubs to be planted in containers shall not be less than one (1) gallon size. Ground covers will be planted from one (1) gallon containers or from root cuttings. 3-56 Every effort should be made to avoid using plants with invasive and shallow root systems with fruit that would stain paving or automobiles. L. Earth berms shall be rounded and natural in character, designed to obscure automobiles and to add interest to the site. In cases where the ratio of width and height of berm creates a bank greater than 3 to 1, shrubs or walls can be used as shown in illustration (b) (c). Wheel stops shall be so placed that damage to trees, irrigation units and shrubs is avoided. A Trees in parking lots should be limited in variety. Selection should be repeated to give continuity. Regular spacing is not required and irregular groupings may add interest. Care should be exercised to allow plants to grow and maintain their ultimate size without restriction. N. Storage areas are to be provided with an opaque screen up to a point of eight (8) feet in vertical height. Combination of plantings can be used to further soften hard materials and give continuity to planting. 3-57 PART VI. RESIDENTIAL OVERLAY (34) Section I. Applicability and Purpose A. Applicability. The Residential Overlay applies to an area within Office Site B as shown on Exhibit F. B. Purpose. The purpose of the overlay is to provide use and development standards for the development multiple -family residential development and its ancillary uses in Professional and Business Office Site B. Section IL Site Area Site Area: 3.41 acres. Section III. Density and Intensity A. Density. The total maximum allowed number of residential units is 260, exclusive of any density bonus units. B. Commercial Intensity. The maximum allowed non-residential floor area shall be as specified by corresponding base commercial site regulations. There is no minimum amount of commercial area that must be provided within the residential overlay. Section IV. Permitted Uses A. Multi -unit residential development, subject to Site Development Review pursuant to Newport Beach Municipal Code (NBMC) Chapter 20.52 (Permit Review Procedures). B. Any commercial use deemed to support residential or allowed commercial uses pursuant to the applicable Koll Center Newport commercial site regulations as determined by the Community Development Director. C. Any commercial or residential accessory uses pursuant to Title 20 of the Newport Beach Municipal Code. Section V. Affordable Housing A. An Affordable Housing Implementation Plan (AHIP) shall be prepared and submitted with any site development review application seeking approval of a residential development within the PC District. The AHIP shall clearly demonstrate how the 3-58 proposed residential development project will meet the affordability requirements of this PCDP and any applicable provisions of the State Density Bonus Law and the Newport Beach Municipal Code. The AHIP shall specify eligible income categories, the amount of the requested density bonus, any concession/incentives requested, and any development standards waivers or modifications sought and justifications for said concessions/incentives or development standard relief. B. Density bonuses/incentives or development standard concessions shall be provided pursuant to NBMC Chapter 20.32 and California Government Code Section 65915 et seq. Section VI. Development Standards A. Building Height 1. Maximum height of structures shall be 71 feet. No building or any portion of any structure, architectural feature or mechanical equipment shall exceed 71 feet as measured from the established grade for the purpose of measuring structure height pursuant to NBMC Section 20.30.050 (Grade Establishment). 2. Buildings and structures shall not penetrate Federal Aviation Regulation (FAR) Part 77, Obstruction— Imaginary Surfaces, for John Wayne Airport unless approved by the Airport Land Use Commission (ALUC) and determined not to be a hazard to air navigation by the Federal Aviation Administration. 3. In compliance with FAR Part 77, applicant proposing building or structure that penetrate the 100:1 Notification Surface shall file a Form 7460-1, Notice of Proposed Construction or Alteration with the Federal Aviation Administration. A copy of the FAA application shall be submitted to the ALUC and the applicant shall provide the City with FAA and ALUC responses. B. Building Setbacks 1. Above grade residential buildings shall be setback 10 feet from property lines, EXCEPT WHERE ANY SUCH BUILDING ABUTS THE PARK OVERLAY ZONE, IN WHICH CASE NO SETBACK IS REQUIRED. Private balconies may encroach up to four feet into the required setback areas. 3-59 2. Fully subterranean parking structures may be located in any setback area. C. Parking 1. Residential: 2 covered spaces per dwelling unit, plus 0.5 space per dwelling unit for guest parking. Parking for density bonus projects shall be consistent with NBMC Section 20.32.040 or Government Code Section 65915 et seq. 2. All Other Uses: Refer to NBMC Chapter 20.40 (Off -Street Parking). 3. Enclosed or Structured Parking Enclosed or structured parking shall be screened by building elements or exterior landscaping to soften their exterior appearance. Uniform interior and exterior lighting for comfort, convenience and security shall be provided. Light standards on the roof of the parking structure shall not exceed 25 feet in height from the driving and parking surface. Stairways within any free- standing parking structure shall be designed to be completely visible from either the interior or exterior or both, unless mandated by the Building Code to be enclosed. D. Circulation 1. The site shall be designed to provide and enhance pedestrian and vehicular circulation within Professional and Business Office Site B connecting the residential development to existing office buildings and improvements with the goal of creating a well-connected, pedestrian -friendly environment. 2. A privately -maintained street ("internal street") connecting Von Karman Avenue and Birch Street shall be provided. The internal street shall be open to the public at all times and shall provide convenient pedestrian and vehicular access for all users of the site including emergency vehicles. 3. At least three pedestrian connections, as generally shown on Exhibit G, connecting residential development within the residential overlay to the Uptown Newport Planned Community shall be provided and maintained by the property owner or its assignee. The pathway connections 3-60 shall be improved with sidewalks and canopy trees and may include enhanced pavement, seating areas or other amenities to create a convenient, safe and pleasant walkway subject to the review and approval of the Community Development Director. All pedestrian connections shall be improved and inspected by the Community Development Department prior to issuance of a Certificate of Occupancy for future residential buildings. E. Loading and Refuse Areas 1. Loading areas shall be provided in curb -side pullouts along the spine street and/or within the residential building footprints. Loading areas shall be designed to accommodate moving, delivery and refuse collection vehicles without blocking streets, driveways, parking areas, or emergency access. Loading areas shall be clearly marked and maintained. 2. Refuse collection areas shall be located within the parking garage or within enclosed structures such that the interior of these areas is concealed from view. Refuse collection or service vehicles shall utilize the designated loading areas provided by Section VI(E)(1). F. Landscaping 1. Landscaping and irrigation systems shall be installed and maintained in compliance with an approved landscape and irrigation plan. 2. Landscaped areas shall be kept free of weeds, debris, and other undesirable materials. Landscaping shall be designed and maintained to not to interfere with traffic safety visibility areas. 3. Landscape areas shall incorporate drought tolerant and non-invasive plantings and shall conform with applicable energy requirements as specified in Title 24 of the California Code of Regulations. G. Signs 1. Refer to Part IV General Signage Requirements. 3-61 2. A comprehensive sign program may be prepared if an applicant wishes to deviate from the sign standards identified herein. Comprehensive sign programs shall be submitted for review and consideration in accordance with the provisions of the NBMC Chapter 20.42. H. Outdoor Lighting 1. Outdoor lighting shall comply with NBMC Section 20.30.070. 2. Detailed lighting plans and a photometric analysis shall be prepared by qualified professionals and shall be submitted for review and approval by the Community Development Director prior to the issuance of a building permit. All lighting shall be installed and inspected by the Community Development Department prior to issuance of the final Certificate of Occupancy. 3. Security lighting shall be provided throughout development within the overlay. 4. Lighting shall be properly maintained by the property owner. Any damaged or non -operational fixtures or lighting elements shall be replaced and made operational within a reasonable amount of time. I. Recreation Amenities 1. On-site recreational amenities accessible to all residents and their guests shall be provided in the residential building. A minimum of forty-four (44) square feet of area per dwelling unit shall be provided consistent with General Plan Land Use Policy LU 6.15.16. Recreational amenities may include, but are not limited to the following: a. Private Balconies b. Swimming pools and spas c. Exercise facilities d. Multi-purpose/club rooms e. Passive gathering spaces (garden and roof terraces) f. Dog washing room g. Bike shop h. Other amenities deemed appropriate by the Community Development Director and property owner. 3-62 J. Buffering and Screening 1. General Requirements. Mechanical equipment shall be located so that the impact of noise on residential uses within the development and on adjacent nonresidential uses is minimized to the greatest extent feasible. Screening shall be maintained in good condition at all times. Landscaping used as screening shall provide a dense, year-round screen. 2. Roof -mounted Mechanical Equipment and Appurtenances. Roof -mounted mechanical equipment and appurtenances may not be visible in any direction (360 degrees) from a public right-of-way or adjacent property, as may be seen from a point six feet above ground level. Methods of screening may include mechanical roof wells recessed below the roof line or by solid and permanent roof - mounted screens. Screening must be compatible with the architectural style, materials, and color of the building on which the equipment is located. No setbacks are required for rooftop mechanical equipment or appurtenances. 3. Ground -mounted Mechanical Equipment. Ground - mounted mechanical equipment shall be screened from public rights-of-way and/or adjacent property as seen from a point six feet above ground level. Methods of screening may include fences, walls, solid hedges, or other similar methods. Chain link fencing shall not be permitted. K. John Wayne Airport Proximity 1. Interior Noise Attenuation. The interior ambient noise level of all new residential dwelling units shall meet applicable standards of the City's Community Noise Ordinance (NBMC Section 10.26.030). An acoustical analysis report, prepared by an acoustical engineer, shall be submitted describing the acoustical design features of the structure that will satisfy and meet the applicable interior noise standard. The residential units shall be constructed, and noise attenuated in compliance with the report. 2. Notification to Residents. A written disclosure statement shall be prepared prior to rental of every residential unit. The disclosure statement shall indicate that the occupants will be living in an urban environment in proximity to John Wane Airport and that noise, odor, air quality, outdoor activity levels, etc. may be different or higher 3-63 than typical suburban residential areas. The disclosure statement shall include a written description of the potential impacts to residents of both the existing environment and potential impacts based upon the allowed uses in the vicinity. Each and every renter shall sign the statement acknowledging that they have received, read, and understand the disclosure statement. The project applicant shall covenant to include within all contracts conveying any interest in a residential unit within the residential building (1) the disclosure and notification requirement as stated herein; (2) an acknowledgment by all lessees that the property is located within an urban type of environment and that the noise, odor, air quality, outdoor activity levels, etc. may be different or higher than typical suburban residential areas; and (3) acknowledgment that the covenant is binding for the benefit and in favor of the City of Newport Beach. 3-64 PART VII. PUBLIC PARK OVERLAY (34) Section I. Applicability and Purpose A. Applicability. The Public Park Overlay applies to an area within Professional and Business Office Site B as shown on Exhibit F. B. Purpose. The purpose of the overlay is to provide for the orderly development, maintenance and use of a public park within Professional and Business Office Site B if a multiple -family residential project is developed within the Residential Overlay pursuant to Part VI. Section II. Site Area A. A minimum of 1.10 acres shall be dedicated in fee to the City of Newport Beach if a multiple -family residential project is developed within the Residential Mixed -Use Overlay pursuant to Part VII. B. The area excludes driveways and parking areas. Section III. Allowed Uses and Activities A. Any uses and activities allowed and regulated by NBMC Chapter 11.04. B. Any activities permitted pursuant to a Special Event Permit pursuant to NBMC Chapter 11.03. Section IV. Park Design and Amenities A. The public park may include the following amenities: 1. Dog park 2. Seating & social gathering spaces with outdoor furniture 3. Shade structures 4. Multi-purpose lawn 5. Landscaped open spaces including shade trees provided they do not interfere with Fire Department Access 6. Bocce court or similar activity 7. Other active or passive recreational amenities as determined appropriate and necessary by the Parks Beaches and Recreation Commission or Recreation and Senior Services Director. 3-65 C. The design, amenities and regulations applicable to the public park shall be subject the review of the Parks Beaches and Recreation Commission and the approval of City Council. D. Landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing, trimming and maintenance. Irrigation systems shall be routinely inspected and maintained. The park shall be kept free of weeds, debris and other undesirable materials. E. Notice Posted. The public park shall be posted with notification signs to alert users of the proximity to John Wayne Airport and the presence of operating aircraft. F. ONLY LANDSCAPE AND HARDSCAPE (I.E., NO PERMANENT IMPROVEMENTS OR ABOVE GROUND STRUCTURES) SHALL BE LOCATED WITHIN 15 FEET OF THE PROPERTY LINE WHICH ABUTS THE ADJACENT RESIDENTIAL PARCEL. 3-66 PART VU VII. FOOTNOTES (1) Planned Community text revision incorporating Planning Commission revisions and conditions of approval. (2) Planned Community Text revision incorporating City Council conditions of approval as adopted by the city of Newport Beach. (Amendment No. 313, adopted August 14, 1972). (3) Planned Community Text revision July 6, 1973 incorporating the addition of footprint lots and the addition of two (2) restaurant sites within Office Site "A". (Amendment No. 381, adopted August 2, 1973). (4) Planned Community Text revision (Amendment No. 420, adopted February 7, 1974) incorporating the following changes: a. Revised Planned Community Text site acreage figures to conform to the recorded tract map. b. Revised Exhibit "A" (land use map) to conform to recorded tract map. C. Changed the size of Office Site "E" and created one parcel of land comprised of Restaurant Site No. 3, Service Station Site No. 3 and the residual of Office Site "C". This new site is designated as Office Site "F". d. Revised Retail and Service Site No. 2 from a specific location to a floating location within Office Site "A". e. Added mechanical car wash subject to a use permit as a permitted use on the service station sites. £ Added private clubs or athletic clubs as a permitted use on Office Site "B". g. Made provisions for three (3) additional restaurant sites, two sites within Office Site "B: and one site within Office Site "F". (5) Planned Community Text revision (Amendment No. 430, adopted June 10, 1974) incorporating the following changes: a. Eliminated Service Station Site No. 2. b. Added health or athletic club as a permitted use within the Retail and Service Center sites. C. Added Professional and Business Office as a permitted use within the Retail and Service Center sites. d. Added a minimum twenty-five (25) percent landscape requirements or site plan approval by the Planning commission to the development requirements of retail Site No. 1. (6) Planned Community Text revision (Amendment No. 444, adopted May 15, 1975) incorporating the following changes: a. Clarified the setback requirements for buildings within footprint lots. b. Clarified Professional and Business Office permitted uses. 3-67 C. Added signing provision for ground floor businesses in multi -tenant building. (7) Planned Community Text revision (Amendment No. 451, adopted September 8, 1975) incorporating the following changes: a. Added the requirement that all restaurants shall be subject to the securing of a use permit with the exception of certain restaurant uses within Retail and Service Centers. (8) Planned Community Text revision (Amendment No. 466, adopted June 28, 1976) incorporating the following changes: a. Changed the size of Light Industrial Site No. 2. b. Created Professional and Business Office Site "G". C. Made provisions for two (2) restaurant sites within Office Site "G". d. Reduced the allowable building area of Office Site "D". e. Amended the construction timetable for traffic signals. (9) Planned community Text revision (Amendment No. 475, adopted January 10, 1977) incorporating the following changes: a. Established guidelines for an exception to the minimum site area. (10) Planned Community Text revision (Amendment No. 505, adopted July 11, 1978) incorporating the following changes: a. Increased the site area of Professional and Business Office Site «C„ b. Increased the allowable building area of Professional and Business Office Site «C„ (11) Planned Community Text revision (Amendment No. 508, adopted August 28, 1978) incorporating the following changes: a. Made provision for consideration of additional left turn ingress from MacArthur Boulevard. b. Eliminated Service Station Site No. 1 and added the land area to Professional and Business Office Site `B". C. Reviewed the parking requirement for office buildings within Professional and Business Office sites. (12) Planned Community Text revision (Amendment No. 514, adopted October 19, 1978) incorporating the following changes: a. Established existing and additional allowable development as of October 1, 1978. 3-68 b. Established the requirement and criteria for phasing plan approval of development beyond thirty (30) percent of the additional (13) Planned Community text revision incorporating the transfer to allowable building area from Professional and business Office Site "D: to Professional and Business Office Site "B". (Amendment No. 550, adopted November 10, 1980). (14) Planned Community Text revision for Retail and Service Site No. 1, which allocates existing and permitted development. (Amendment No. 558 adopted March 23, 1981). (15) Planned community Text revision increasing the allowable building area in Site C (MacArthur Court). (Amendment No. 593, adopted October 24, 1983). (16) Planned Community Text revision incorporating the transfer of allowable office, restaurant and retail building area from Professional and Business Office Site "A" to Professional and Business Office Site `B". (Amendment No. 606, adopted May 14, 1984). (17) Planned Community Text revision to allow up to two restaurants with a total floor area not to exceed 3,250 square feet within "Office Site U. (Amendment No. 626, adopted December 9, 1985). (18) Planned Community Text revision deleting restaurant Site 1 and substituting a private club with a total floor area not to exceed 30,000 square feet within Office Site "A". (Amendment No. 635, adopted July 14, 1986). (19) Planned Community Text revision to allow auto detailing as a permitted use. (Amendment No. 647, adopted March 23, 1987). (20) Planned Community Text revision adding support commercial uses to the permitted uses under Professional and Business Office permitted uses. (Amendment No. 649, adopted July 27, 1987). (21) Planned Community text revision combining Light Industrial Sites 1 and 2 into Light Industrial Site 1, increasing the allowable building area for the combined site by 39,000 square feet, and increasing the permitted building height from 35 feet to 55 feet. (Amendment No. 677, adopted June 12, 1989). (22) Planned Community Text revision increasing the permitted building height in Light Industrial Site 1 from 55 feet to 75 feet. (Amendment No. 799, adopted April 25, 1994). (23) Title 20 amendment to reinstate notice and appeal procedures for specialty food service applications. (Amendment No. 829, adopted September 11, 1995, Ordinance 95-39) (24) Planned Community Text revision to increase the permitted height within "Light Industrial Site 1" from 75 feet to 90 feet for a single vertical column. (Amendment No. 867, adopted February 23, 1998, Ordinance 98-3). 3-69 (25) Planned Community Text revisions (Amendment No. 876, adopted August 10, 1998, Ordinance 98-20) to allow the following changes: a. Additional restaurant uses in Office Site "G" (the current limited of two restaurants will be increased to three restaurant sites), and; b. Permit eating and drinking establishments throughout the Koll Center Planned Community as per Title 20 of the Municipal Code. (26) Planned Community Text revisions (Amendment No. 890, adopted 01/11/2000, Ordinance 99-28) to allow the following changes: a. Increase the permitted level of development for Office Site A by 15,000 square feet (4110 MacArthur Boulevard) and; b. Establish the permitted level of development for Koll Center Newport Office Site A at 418,346 gross square feet. (27) Planned Community Text revisions (Amendment No. 897, adopted January 25, 2000, Ordinance 2000-3) to allow the following changes: a. Designate Parcel 1 of Koll Center Newport Retail and Service Site 1 for Hotel Use, and; b. Establish the permitted Gross Floor Area for Koll Center Newport Retail and Service Site 1 at 120,000 square feet, and C. Establish the permitted height for the site at 60 feet. (28) Planned Community Text revisions (Ordinance No. 2005-014, adopted August 9, 2005) to allow the following changes: a. Office expansion of 1,367 net square feet in the Koll Center Office Site B at 4200 Von Karman Avenue. (29) Planned Community Text revisions (Ordinance No. 2006-19), adopted July 25, 2006 to allow the following changes: a. To increase the development allocation for Professional and Business Offices of Site A by 2,129 net square feet. (PA2005-293) (30) Planned Community Text revisions (Ordinance No. 2006-21), adopted October 24, 2006 to allow the following changes: a. To allow the transfer of 24,016 gross square feet of unused retail, restaurant and office square footage from Office Site B to Office Site A resulting in the elimination of the entire Retail Site #1, an undeveloped portion of Restaurant Site #2 and the entire Restaurant Site #5. 3-70 (31) Planned Community Text revisions (Ordinance No. 2011-3), adopted January 25, 2011 to allow the following changes: a. To allow building area for Professional & Business Site F to increase by 18, 346 net square feet. (32) Planned Community Text revisions (Ordinance No. 2011-8), adopted March 8, 2011 to allow the following changes: a. To allow an increase to the Allowable Building Area for Professional & Business Site B by 9,917 net square feet (33) Planned Community Text revisions (Ordinance No. 2013-5), adopted March 12, 2013 to allow the following changes: a. To delete Light Industrial Sites 1 and 2 from PC -15. b. To delete Part I. Industrial uses in its entirety as an allowed use. c. To revise the total acreage within PC -15 to 154.0 acres to reflect the deletion of Light Industrial Sites 1 and 2 from PC -15. d. To update the Composite exhibit and Exhibits A through E to reflect the deletion of Light Industrial Sites 1 and 2 from PC -15. Insert exhibits: Composite ............................................. For Information Only (33) Exhibit A .............................................. Land Use (33) Exhibit B ............................................... Grading and Roads (3 3) Exhibit C ............................................... Storm Drain (33) Exhibit D .............................................. Water & Sewer (33) Exhibit E ............................................... Boundary and Topography (33) (34) Planned Community Text revisions (Ordinance No._), adopted to affect the following changes: a. Clarify that the Newport Beach Municipal Code applies to property within the planned community. b. Update title from Planning Director to Community Development Director throughout document. c. Made changes to Professional & Business Offices for Site B creating the Residential Overlay allowing 260 (units exclusive of density bonus units) and the Park Overlay allowing the one -acre public park. d. These improvements impacted the following: i. Increased parking for Professional and Business Office Site B e. Made changes to Contents and Overall Document to allow the following: i. New Residential Overlay as Part VI ii. New Park Overlay as Part VII. iii. Footnotes moved from Part VI to Part VIII 3-71 iv. Exhibits moved from Part VII to Part VIIII Insert exhibits: Exhibit F - Overlay Map — Office Site B (34) Exhibit G - Pedestrian Connection Diagram (34) 3-72 PART VIII. EXHIBITS Composite For Information Only (33) Exhibit A Land Use (33) Exhibit B Grading and Roads (33) Exhibit C Storm Drain (33) Exhibit D Water & Sewer (33) Exhibit E Boundary and Topography (33) Exhibit F Overlay Map — Office Site B (34) Exhibit G Pedestrian Connection Diagram (34) 3-73 3-74 - , :fit;- j '.\ .. \1 AREA SUMMARY FER l3LN]31 TRKT FU➢ 41 3 /• \ Im F,wsrelu ?.5, O�\3 L1Tlt I S[RxRC S.OX IC ,OFFICE OFFI we .[r I Aq IEf 161dF aPE1 158 1G / NOTE: �/ i ^. I u IREd IXE FILWIIFF Of IFO[l[EO RK.IRS Q'MIY. 1 � / I I I / EE Il d SF{VIcE.1 I j / / I I OFFICE FFICE /�.• � we it j -------------------- / K/ ♦ Ir iY OFFICED - OFFICE B / — i r,4 } / \ NOT A PART (Ordinance 2013-5)�o OFFICE E 331 New o r:= �,Eaa E.cE I b e /oFFIGF- 6t 5.31? AC N LANGDON & WILSON ..�.Ir.�r. --— - \ I-------- / LAND USE , NEWPORT BEACH -CALIFORNIA FOR �' AAV■ •-��IN •+e ...eco.... FgOt1T KOLL CENTER NEWPORT -- 3-74 JCA LE _ y4. j .mow' � v i NOT A PART (Ordinance 201 7 /----- __-- \r' INDU RIAI l0.121M u 'i NBD¢EE BLVD GRADING & ROADS NEWPORT BEACH. CALIFORNIA / FOR LL CENTER NEWPORT � n5 LANGDON &WILSON � 1 cm 3-75 —•�-•...:7m.. xa..o..n�. i �_?�_— _fit-� ' , MACNRTRD } I / I IVO _ I I i e i �RE I I pp co ® ro _.-- �`�•.. O = O asioxneo w... nxr �M.w=.cx. .uxe - TYPICAL MEET SECTION I I � n5 LANGDON &WILSON � 1 cm 3-75 � � w OFFICE A 8 OFFICE C / SERV. STA. & SERVICE '1 GECENO ■ rnexw�e �.w tix E Sol �lxlll z a x z a a a 0 F LANGDON & WILSON Q 3-76 x OFFICE C E & sr 11 , RET A /L& SERVICE -1 OFFICE A MEN A !-i -.-, z \ I 9 LA N IGDON &WILSON -M -,%. 3-77 r u,J N a a NOT A PART (Ordinance 2013-5) 0 10, .... _ . 0 LANGDON & WILSON p TOPOGRAPHY & BOU DARY NEWPORT BEACH. CA LIFORN ' I RAUB 0leN FpOOT FOR I v w..oeiwru KOLL._ CENTER.. NEWPORT- 3-78 � I i / I I O�� I / WI OFFICE SITE B 43.703 AC NET 'O = iJ��i ml O P I / ' I / I OFFICE SITE G 5.317 AC NET i/ JAMBOREE ROAD - _----- - - - - - J ---------------------- - - - - -- EXHIBIT F: OVERLAY MAP — OFFICE SITE B NEWPORT BEACH, CALIFORNIA FOR KOLL CENTER NEWPORT 3-79 BIRCH ST. 1 � EXISTING BLDG NOT -A -PART j 1 EXISTING BLDG I ~ f NOT -A -PART EXISTING BLDGa 4440 VON KARMAN P RESIDENCES AT 4400 VON KARMAN Jvro 7 wilitpft,-q EXISTING BLDG NOT -A -PART aipAk EXISTING BLD NOT -A -PART EXISTING PARKING NOT -A- PART UPTOWN NEWPORT EXISTING BLDG NOT -A- PART r-ir EXISTING BLD NOT -A -PART 4= w ._1 LEGEND 0 RESIDENCES AT 4440 VON KARMAN AVE 0 EXISTING OFFICE BUILDING � PARK 0 UPTOWN NEWPORT BUILDINGS PROPOSED PEDESTRIAN CONNECTION 1 / FUTURE PEDESTRIAN CONNECTION I ATTACHMENT B ORDINANCE NO. 2021-2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. DA2020-002 FOR THE RESIDENCES AT 4400 VON KARMAN PROJECT LOCATED AT 4400 VON KARMAN AVENUE (PA2020-061) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, an application was filed by TPG (KCN) Acquisition, LLC ("Applicant") with respect to property located at 4400 Von Karman Avenue, generally bounded by Birch Street and Von Karman Avenue, and legally described in Exhibit "A" attached hereto and incorporated herein ("Property"); WHEREAS, the Applicant is requesting an approval for the development of 312 apartment units atop an 825 -space parking structure, a 284 -space free-standing parking structure, one -acre public park, and reconfiguration of existing surface parking lots serving existing office buildings ("Project") which require the following approvals from the City: • Planned Community Development Plan Amendment (PD2020-001) ("PCDP Amendment") - An amendment to Planned Community Development Plan #15 (Koll Center Newport Planned Community) for the creation of a residential overlay zone and a park overlay zone to allow for residential uses and a public park within the Koll Center Newport Professional and Business Office Site B ("Office Site B"); • Major Site Development Review (SD2020-006) ("SD") - A site development review in accordance with the amended Koll Center Planned Community and Section 20.52.080 (Site Development Reviews) of the Newport Beach Municipal Code ("NBMC") for the construction of the Project; • Traffic Study (TS2020-001) ("TS") - A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the NBMC, which is required for projects that generate in excess of 300 new average daily trips; • Lot Line Adjustment (LA2020-002) ("LA") - To adjust the lot lines of two (2) underlying parcels that comprise the Project; 3-81 Ordinance No. 2021-2 Page 2of6 • Affordable Housing Implementation Plan (AH -2020-003) ("AHIP") - A program specifying how the Project meets the City's affordable housing requirements, in exchange for a request of 20 percent increase in density and meets the requirements for a development concession related to the mix of affordable units, pursuant to Chapter 20.32 (Density Bonus) of the NBMC and Government Code Section 65915 et seq.; • Development Agreement (DA2020-002) ("Development Agreement") — A request for a development agreement between the Applicant and the City, which would provide vested rights to develop the Property, while also providing negotiated public benefits; and • Addendum No. ER2020-003 to the 2006 General Plan Update Environmental Impact Report and the 2008-2014 City of Newport Beach Housing Element Update Initial Study/Negative Declaration ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum will address reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated MU -H2 (Mixed -Use Horizontal 2) by the City of Newport Beach General Plan ("General Plan") Land Use Element and located within the Airport Business Area, and the Airport Business Area Integrated Conceptual Development Plan ("ICDP"). The ICDP allocates a maximum of 260 residential units to be developed on the Property; WHEREAS, the Property is currently located within the PC -15 (Koll Center Newport Planned Community Office Site B) Zoning District; WHEREAS, the Project is not located in the coastal zone; therefore, amending the Local Coastal Program or a coastal development permit is not required; WHEREAS, a telephonic public hearing was held by the Planning Commission on November 5, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2020-040 by a unanimous vote of (4 ayes, 0 nays) recommending approval of the Project; and land use entitlements referenced above, to the City Council; 3-82 Ordinance No. 2021-2 Page 3 of 6 WHEREAS, due to the proposed amendment to the Property's zoning regulations, California Public Utilities Code Section 21676(b) requires the City to refer the Project to the Orange County Airport Land Use Commission ("ALUC") for a determination of the Project's consistency with the Airport Environs Land Use Plan ("AELUP") for John Wayne Airport; WHEREAS, on November 19, 2020, the ALUC found the Project to be consistent with the AELUP for John Wayne Airport; WHEREAS, telephonic public meetings were held by the Parks, Beaches and Recreation ("PB&R") Commission on December 1, 2020 and January 25, 2021, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearings were given in accordance with the Ralph M. Brown Act and by providing written notice to property owners within a 300 foot radius of the Project; WHEREAS, the PB&R Commission determined that the proposed amenities to be provided within the proposed public park for the Project are practical, useable and feasible for the general public, and provided additional recommendations to the City Council; WHEREAS, at the January 12, 2021 City Council meeting, the City Council continued the public hearing to January 26, 2021. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act, WHEREAS, the continued public hearing was held telephonically by the City Council on January 26, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing were given in accordance with California Public Utilities Code Section 21676(b), the Ralph M. Brown Act, and Chapters 15.40 (Traffic Phasing Ordinance), 15.45 (Development Agreements), 19.76 (Lot Line Adjustments), 20.56 (Planning Community District Procedures) and 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; WHEREAS, Development Agreement No. DA2020-002 is required by Chapter 15.45 (Development Agreements) of the NBMC in that the Project would add more than 50 dwelling units within Statistical Area L4 (Airport Area); 3-83 Ordinance No. 2021-2 Page 4 of 6 WHEREAS, Section 15.45.040 (Contents) of the NBMC requires inclusion of the permitted uses of the property, density or intensity of uses, maximum height and size of proposed buildings and any reservation or dedication of land required into a development agreement; WHEREAS, Section 15.45.040 (Contents) of the NBMC permits inclusion of additional provisions into the development agreement, including but not limited to, conditions, terms, restrictions and requirements for subsequent discretionary actions as well as specifying when construction commence; WHEREAS, Development Agreement No. DA2020-002 satisfies the mandatory elements of Section 15.45.040 (Contents) of the NBMC in providing for the development of 260 dwelling units, exclusive of any permitted density bonus and specifies the provision for the dedication of parkland; WHEREAS, Development Agreement No. DA2020-002 further satisfies other mandatory elements of Section 15.45.040 (Contents) of the NBMC in the definition of Development Plan which incorporates all land use approvals required for the Project; WHEREAS, Development Agreement No. DA2020-002 also provides other non- mandatory elements, including a term of 10 years for completion of the Project along with providing public benefits that are appropriate to support conveying the vested development rights consistent with the City of Newport Beach General Plan, NBMC, and Government Code Sections 65864 et seq.; and WHEREAS, the public benefits include the payment of a $500,000 public safety fee to provide new emergency response services or Fire Department equipment to serve the Airport Area and $7,500,000 public benefit fee to be used by the City Council as specified in Development Agreement. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and has determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation. Section 2: The City Council hereby approves Development Agreement No. DA2020-002, which is attached hereto and incorporated herein by reference as Exhibit «B„ Ordinance No. 2021-2 Page 5of6 Section 3: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 4: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: Environmental Impact Report Addendum No. ER2020-003 was prepared for the Project in compliance with California Public Resources Code Section 21000 of seq. ("CEQA"), CEQA Guidelines as set forth in California Code of Regulations, Title 14, Division 6, Chapter 3, and City Council Policy K-3. 4n the basis of the entire environmental record, the Project will not result in any new significant impacts that were not previously analyzed in the PEIR and Addenda Nos. 1, 2, and 3 to the 2006 General Plan Update (SCH No. 2006011119) along with the 2008-2014 Housing Element Update Initial Study/Negative Declaration. The potential impacts associated with this Project would either be the same or less than those described in the PEIR and Addenda Nos. 1, 2, and 3 to the 2006 General Plan Update along with the 2008-2014 Housing Element Update Initial Study/Negative Declaration. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. As a result of the aforementioned, the City Council adopted Resolution No. 2021-2 in accordance with Section 15164 of the CEQA Guidelines approving Addendum No. ER2020-003 for the Project. Resolution No. 2021-2, including all findings contained therein, is hereby incorporated by reference. Section 6: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged and shall be in full force and effect. Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption. 3-85 Ordinance No. 2021-2 Page 6 of 6 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 26th day of January, 2021, and adopted on the 9th day of February, 2021, by the following vote, to -wit: AYES- YES: NAYS- NAYS: ABSENT: ABSENT: BRAD AVERY, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY A ORNEY'S OFFICE AARON C. HARP, CITY ATTdRNEY Attachments: Exhibit A - Legal Description Exhibit B - Development Agreement W. Exhibit "A" Legal Description PARCEL 1: THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 91-155 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 266, PAGES 16 THROUGH 22 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 91-155; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 49021'34" WEST 584.54 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 41005'02" WEST 54.87 FEET; THENCE SOUTH 04016'29" EAST 257.91 FEET; THENCE SOUTH 85043'31" WEST 685.70 FEET TO A LINE PARALLEL WITH AND 1.00 FEET EASTERLY OF THE EASTERLY RIGHT-OF-WAY LINE OF VON KARMAN AVENUE AS SHOWN ON SAID PARCEL MAP NO 91-155; THENCE ALONG SAID PARALLEL LINE NORTH 06059'31" WEST 296.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 549.00 FEET; THENCE ALONG SAID CURVE NORTHEASTERLY 90.98 FEET THROUGH A CENTRAL ANGLE OF 09029'40" TO THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" WEST 204.00 FEET"; THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 274.72 FEET; THENCE NORTH 40038'26" EAST 156.94 FEET TO THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" EAST 204.44 FEET"; THENCE ALONG SAID SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 166.34 FEET; THENCE NORTH 40038'26" EAST 284.73 FEET TO SAID NORTHEASTERLY LINE OF PARCEL 2; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°21'34' EAST 157.28 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING: 4.51 ACRES, MORE OF LESS. PARCEL 2: THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF PARCEL 2 OF PARCEL MAP NO.91-155AS SHOWN ON A MAP THEREOF, FILED IN BOOK 266, PAGES 16 THROUGH 22 OF PARCEL MAPS, TOGETHER WITH PARCEL 1 OF PARCEL MAP NO. 82-713 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 181, 3-87 PAGES 13 THROUGH 19 OF PARCEL MAPS, BOTH IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. EXCEPTING THEREFROM THAT CERTAIN PARCEL DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 91-155; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 49021'34" WEST 584.54 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 41005'02" WEST 54.87 FEET; THENCE SOUTH 04°16'29" EAST 257.91 FEET; THENCE SOUTH 85°43'31" WEST 685.70 FEET TO A LINE PARALLEL WITH AND 1.00 FEET EASTERLY OF THE EASTERLY RIGHT-OF-WAY LINE OF VON KARMAN AVENUE AS SHOWN ON SAID PARCEL MAP NO 91-155; THENCE ALONG SAID PARALLEL LINE NORTH 06°59'31" WEST 296.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 549.00 FEET; THENCE ALONG SAID CURVE NORTHEASTERLY 90.98 FEET THROUGH A CENTRAL ANGLE OF 09029'40" TO THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" WEST 204.00 FEET"; THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 274.72 FEET; THENCE NORTH 40°38'26" EAST 156.94 FEET TO THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" EAST 204.44 FEET"; THENCE ALONG SAID SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 166.34 FEET; THENCE NORTH 40°38'26" EAST 284.73 FEET TO SAID NORTHEASTERLY LINE OF PARCEL 2; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°21'34' EAST 157.28 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING: 20.09 ACRES, MORE OF LESS. SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-WAY AND EASEMENTS OF RECORD. Exhibit "B" Development Agreement No. DA2020-002 Document attached. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: Citv Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and TPG (KCN) Acquisition, LLC concerning THE RESIDENCES AT 4400 VON KARMAN 4400 Von Karman 3-90 DEVELOPMENT AGREEMENT (Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government Code Sections 65864-65869.5) This DEVELOPMENT AGREEMENT ("Agreement" or "Development Agreement") is dated for reference purposes as of the _ day of _, 2020 ("Agreement Date"), and is being entered into by and between the CITY OF NEWPORT BEACH ("City") a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California, and TPG (KCN) Acquisition, LLC, a California limited liability company ("Developer"). City and Developer are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Developer is in the process of the purchasing that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as 4400 Von Karman Avenue (APNs #445-131-04, 29, and 30) and generally located on the southwest side of Birch Street and southeast side of Von Karman Avenue ("Proper"). As of the Agreement Date, the Property is owned by SLF-KC Towers, LLC, a Delaware limited liability co_Moration, but Developer has legal or equitable interest in the Property and therefore is authorized to enter into this Agreement pursuant to Government Code Section 65865 and Newport Beach Municipal Code Chapter 15.45 (Development Agreements). The Property is more particularly described in the legal description attached hereto as Exhibit A and is depicted on the site map attached hereto as Exhibit B. B. To encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code Sections 65864-65869.5 ("Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" ("Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. D. As detailed in Section 4 of this Agreement and the Development Plans (as defined herein), and in consideration of the significant benefits outlined in this Agreement, Developer has agreed to pay a total Public Benefit Fee (as defined herein) in the sum of Seven Million Five Hundred Thousand Dollars and 00/100 ($7,500,000.00). Developer shall pay the Public Benefit Fee to the City as provided in Article 3 of this Agreement. 3-91 E. This Agreement is consistent with the City of Newport Beach General Plan, including, without limitation, the Property's "MU -1-12" (Mixed -Use Horizontal 2) General Plan designation which provides for a horizontal intermixing of uses that may include regional commercial office, multifamily residential, vertical mixed-use buildings, industrial, hotel rooms, and ancillary neighborhood commercial uses. F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, the City's police power; (iv) is consistent and has been approved consistent with the Project's Addendum to the Environmental Impact Report (SCH# 200601 1 1 1 19) ("PEIR") that was certified by the City Council on July 25, 2006 for the 2006 General Plan Update and the Initial Study/Negative Declaration prepared in accordance with CEQA for the Newport Beach Housing Element Update (General Plan Amendment No. GP2008-003) adopted by the City Council on November 22, 2011 (the PEIR and Initial Study/Negative Declaration are collectively referred to herein as the "PEIR"), all of which analyze the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related thereto; and (v) is consistent and has been approved consistent with provisions of California Government Code Section 65867 and City of Newport Beach Municipal Code Chapter 15.45 (Development Agreements). G. On November 5, 2020, City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On January 12, 2020, the City Council also held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Developer, and members of the public. On January 26, 2020, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted Ordinance No. 2020 - ("Adopting Ordinance"), finding this Agreement consistent with the City of Newport Beach General Plan and approving and adopting this Agreement. AGREEMENT NOW, THEREFORE, City and Developer agree as follows: 1. Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adoptine Ordinance" shall mean City Council Ordinance No. 2020-_ approving and adopting this Agreement. OA 3-92 "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean the date first written above, which date is the date the City Council adopted the Adopting Ordinance. "CEOA" shall mean the California Environmental Quality Act (California Public Resources Code sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Division 6, Chapter 3, Section 15000 et seq.), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California municipal corporation and charter city, and any successor or assignee of the rights and obligations of the City of Newport Beach hereunder. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose 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 all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Developer" shall mean TPG (KCN) Acquisition, LLC and any successor or assignee to all or any portion of its right, title, and/or interest in and to ownership of all or a portion of the Property and/or the Project. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. 3 3-93 "Development Agreement Statute" shall mean California Government Code Sections 65864-65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the following: (1) the Development rights as provided under this Agreement; (2) Planned Community Development Plan Amendment No. # 15 PD2020-001 to amend the Koll Center Newport Planned Community Development Plan ("PCDP") to create a residential overlay zone to allow for the 312 apartment units and a public park; (3) Major Site Development Review No. SD2020-006, a site development review in accordance with the amended Koll Center Newport Planned Community and Section 20.52.80 (Site Development Reviews) of the Newport Beach Municipal Code for the construction of the Project; (4) Lot Line Adjustment No. LA2020-002 to reconfigure the lot lines of two underlying parcels; (5) Affordable Housing Implementation Plan No. AH2020-003 demonstrating how the Project would meet the City's affordable housing requirements; (6) Traffic Study No. TS2020- 001 in accordance with Chapter 15.40 (Traffic Phasing Ordinance) of the Newport Beach Municipal Code; (7) Development Agreement No. DA2020-002 in accordance with Chapter 15.45 (Development Agreements) of the Newport Beach Municipal Code which would provide vested rights to develop the PCDP as amended, while also providing public benefits should the Project be approved; (8) a density bonus in accordance with the California Government Code Section 65915 et. seq. (9) the Addendum the 2006 General Plan Update EIR ER2020-003 (SCH#2006011119); and (10) all conditions of approval and all mitigation measure approved for the Project on or before the Agreement Date. "Development Regulations" shall mean the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Effective Date that affects the Development of the Property, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Developer in writing: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement (see Section 4.3 in particular), all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, and improvement, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to the Development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 (Buildings and Construction) of the Municipal Code, Title 19 (Subdivisions) of the Newport Beach Municipal Code, and Title 20 (Planning and Zoning) of the Newport Beach Municipal Code but specifically excluding all other sections of the Newport Beach Municipal Code, including without limitation Title 5 (Business Licenses and Regulations) of the Newport Beach Municipal Code. Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of 4 3-94 the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of all of the following occurring: (i) the date that is ninety (90) calendar days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and the Development Regulations; (iii) if a lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan, and/or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan, and/or the applicable Development Regulations, whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement or (iv) the date on which title to the Property has been transferred to, and vested in, Developer as evidenced by an instrument duly recorded with the Office of the County Recorder of the County of Orange. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et SeMc ., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seg., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et SeMc ., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seg., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et se ., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et sea., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et sea., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et sea., as amended; and California Health and Safety Code Section 25100, et SeMc . "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, and any amendments to the 2006 General Plan that became effective before the Effective Date. The term "General Plan" shall exclude any amendments that became effective after the Effective Date unless such amendment is expressly 3-95 authorized by this Agreement, or is specifically agreed to by Developer. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "PaM" or "Parties" shall mean the City or Developer or both, as determined by the context. "Project" shall mean the development of 312 apartment units including density bonus units, a 284 -space free-standing parking structure, an approximately one (1) acre public park, and reconfiguration of existing surface parking lots serving existing office buildings including all on- site and off-site improvements, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property" is located 4400 Von Karman Avenue in the City, as described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Developer is required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations and this Agreement. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 6 3-96 2. General Provisions. 2.1 Plan Consistency, Zoning Implementation. This Agreement and the Development Regulations applicable to the Property will cause City's zoning and other land use regulations for the Property to be consistent with the General Plan. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Developer and each person executing this Agreement on behalf of Developer hereby represents and warrants to City as follows: (i) that Developer is the fee simple owner to the Property; (ii) if Developer or any co-owner comprising Developer is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Developer or any co-owner comprising Developer is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Developer to enter into this Agreement have been taken and that Developer has the legal authority to enter into this Agreement; (v) that Developer's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Developer or any person or entity comprising Developer has to any third party; and (vi) that neither Developer nor any co- owner comprising Developer is currently the subject of any voluntary or involuntary bankruptcy or insolvency petition; and (vii) that Developer has no actual knowledge of any pending or threatened claims of any person or entity affecting the validity of any of the representations and warranties set forth in clauses (i) -(vi), inclusive or affecting Developer's authority or ability to enter into or perform any of its obligations set forth in this Agreement. 2.4 Term. The term of this Agreement ("Term") shall commence on the Effective Date and shall terminate on the "Termination Date." Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date of this Agreement will not occur because, for example, (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non -appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a 7 3-97 written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Developer's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall be repealed by the City after delivery of said notice of termination except for the Development Regulations that have been disapproved by City's voters at a referendum election and, therefore, never took effect. The Termination Date shall be the earliest of the following dates: (i) the tenth (10th) anniversary of the Effective Date as said date may be extended in accordance with Section 5.1 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, and 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance with the terms of this Agreement, including Developer's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication. Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 14.11 (as well as any other Developer obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement. 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Developer shall pay to City a fee in the amount of Seven Million Dollars Five Hundred Thousand Dollars and 00/100 ($7,500,000.00) which shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject. Of the Seven Million Five Hundred Thousand Dollars and 00/100 ($7,500,000.00), the Developer shall pay Six Million Five Hundred Thousand Dollars and 00/100 ($6,500,000.00) of the Public Benefit Fee to the City within five (5) days of the Effective Date of the Agreement. The Developer shall pay the second installment of the Public Benefit Fee in the amount of One Million Dollars and 00/100 ($1,000,000.00) to the City at the time the first building permit is issued for the residential portion of the Project. The City has not designated a specific project or purpose for the Public Benefit Fee except as provided in Section 3.1.1 below. Developer acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee and the fees identified in Section 3.2 below, that its obligation to pay the Public Benefit Fee or the fees in Section 3.2 is an essential term of this Agreement and is not severable from City's obligations and Developer's vested rights to be acquired hereunder, and that Developer expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of the Public Benefits identified in this Section 3.1 on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth 8 .; Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Developer's default, if Developer shall fail to timely pay any portion of the Public Benefits identified in this Section 3.1 when due, City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project. 3.1.1 Public Benefit Fee Allocation. The City Council retains sole and absolute discretion to determine how Six Million Dollars and 00/100 ($6,000,000.00) of the Public Benefit Fee provided in Section 3.1 shall be allocated and no final decisions have been made as of the Agreement Date. In light of the City's commitment to housing_ issues, the City agrees to use the remaining One Million Five Hundred Thousand Dollars and 00/100 ($1,500,000.00) Public Benefit Fee as follows: (i) Five Hundred Thousand Dollars and 00/100 ($500,000.00) of the Public Benefit Fee shall be used, at the City's discretion, to support the City's ongoing homeless shelter or permanent supportive housing efforts; and (ii) One Million Dollars and 00/100 ($1,000,000.00) shall be placed in a separate affordable housing fund and used, at the City's discretion, for the development of future, speculative, affordable housing projects in the City (no specific project is contemplated). 3.2 Other Public Benefits. In addition to the Public Benefit Fee, the direct and indirect benefits City expects to receive pursuant to this Development Agreement are as follows: 3.2.1 Park Land and Improvements. The park land dedication requirement for the Project pursuant to the City General Plan Land Use Policy 6.15.13 is approximately one (1) acre. City acknowledges that Developer's performance of its obligations as set forth in this section satisfies all of Developer's General Plan, Quimby Act and Newport Beach Municipal Code Chapter 19.52 (Park Dedication and Fees) obligations governing park land dedication and fees. City acknowledges that Developer is eligible to receive credit against the payment of fees or dedication of land consistent with the General Plan. As of the Effective Date, the established fair market value for one (1) acre of land used in assessing in -lieu of park dedication fees equals Two Million Five Hundred Thousand Dollars and 00/100 ($2,500,000). Developer fees and credit shall be based on the established Two Million Five Hundred Thousand Dollars and 00/100 ($2,500,000) per acre. Based upon the obligations provided herein, Developer agrees to construct and improve a one (1) acre park within the Property pursuant to the Development Plan. Developer shall offer the one (1) acre park to the City for dedication in fee simple and City shall accept Developer's offer of dedication provided that the park has been completed in accordance with the Development Plan. The park shall be privately maintained by Developer in perpetuity and in accordance with the Development Plan as set forth in a separate written maintenance and license agreement approved as to form by the City Attorney. 3.2.2 Public Safety Fee. Developer shall pay a public safety fee in the amount of Five Hundred Thousand Dollars and 00/100 ($500,000.00) to be used, at City's discretion, to fund the cost of staffing, services and equipment as necessary for fire related public safety purposes. The fee shall be paid at the time the first building permit is issued for the residential portion of the Project. E 3-99 3.2.4 Consumer Price Index (CPI) Increases. Any fee provided in this Section 3 (Public Benefit) shall be increased based upon percentage increases in the CPI Index as provided herein. The first CPI adjustment shall occur on the third anniversary of the City Council's adoption of the Adopting Ordinance (the first "Adjustment Date") and subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date thereafter until expiration of the Term of this Agreement (each, an "Adjustment Date"). The amount of the CPI adjustment on the first Adjustment Date shall be the percentage increase in the CPI Index between the second anniversary of the City Council's adoption of the Adopting Ordinance and the third anniversary of the City Council's adoption of the Adopting Ordinance. The amount of the CPI adjustment on each subsequent Adjustment Date shall be the percentage increase between said Adjustment Date and the immediately preceding Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the first Adjustment Date occurs on September 1, 2020, and the most recently available CPI Index figure on that date is the CPI Index for July 2020 (2 months prior to the first Adjustment Date), the percentage increase in the CPI Index on the first Adjustment Date shall be calculated by comparing the CPI Index for July 2019 with the CPI Index for July 2020. In no event, however, shall application of the CPI Index on any Adjustment Date reduce the amount of any fee provided in this Section 3 (Public Benefit) (or unpaid portion thereof) below the amount in effect prior to that Adjustment Date. 4. Development of Proiect. 4.1 Applicable Regulations; Developer's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Developer shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict the City's discretion with respect to (i) those review and approval requirements contained in the Development Regulations, (ii) the exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals that are required for Development of the Project as of the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions in connection with the Subsequent Development Approvals, the City reserves its full discretion to the same extent that it would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Developer's rights with respect to any laws, regulations, rules, or official policies of any other (i.e., non -City) governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. X11 3-100 Developer has expended and will continue to expend substantial amounts of time and money planning and preparing for Development of the Project. Developer represents, and City acknowledges, that Developer would not make these expenditures without this Agreement, and that Developer is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement. Developer may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, without amending this Agreement, provided that the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic and, in addition, Developer may apply to City for approval of minor amendments to the existing tentative tract map, if any, or associated conditions of approval, consistent with City of Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 4.2 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Effective Date to the extent it conflicts with this Agreement or Developer consents in writing. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Developer shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Effective Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 3-101 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 4.3.1 Procedural Reeulations. Unless otherwise specified in this Agreement, procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City- wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Fees. City shall have the right to charge, and Developer shall be required to pay, all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Developer, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Developer has consented in writing to the regulations, shall apply to the Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Developer and the Project in the absence of this Agreement. City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with this Agreement, the Project's conditions of approval, or the Development Regulations without Developer's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 below). In addition, nothing in this Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications, including CEQA review; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Section 3.12 of Newport Beach Municipal Code. 12 3-102 4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Developer does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Developer shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process in a prompt manner Developer's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Developer's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the building standard codes adopted and amended by City from time -to -time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works Improvements. To the extent Developer constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines 13 3-103 that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Newport Beach as and when service connections are provided and service commences). 4.4 Tentative Subdivision Maps. City agrees that Developer may file and process new and existing vesting tentative maps for the Property consistent with California Government Code sections 66498.1-66498.9 and City of Newport Beach Municipal Code Chapter 19.20 (Vesting Tentative Maps). Developer agrees that filing and issuance of a new subdivision map may trigger additional development impact fees. Pursuant to the applicable provision of the California Subdivision Map Act (California Government Code section 66452.6(a)), the life of any tentative subdivision map approved for the Property, whether designated a "vesting tentative map" or otherwise, shall be extended for the Term of this Agreement. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code Section 65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral termination by City in the event of an uncured default of Developer. 5.1 Extension. The City Council may approve further extensions beyond the term upon written request from the Developer. 6. Enforcement. Unless amended or canceled pursuant to California Government Code Section 65868, Newport Beach Municipal Code Section 15.45.070, or modified or suspended pursuant to Newport Beach Municipal Code Chapter 15.45 or California Government Code Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 7. Annual Review of Developer's Compliance With Agreement. 7.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code section 65865.1. Developer (including any successor to the owner executing this Agreement on or before the date of the Adopting Ordinance) shall pay City a reasonable fee in an amount City may reasonably establish from time -to -time to cover the actual and necessary 14 3-104 costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Developer Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Developer is required to demonstrate good faith compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) calendar days prior to each anniversary of the Effective Date during the Term. 7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Developer has, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Developer has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the basis of substantial evidence, that Developer has not so complied, written notice shall be sent to Developer by first class mail of the Zoning Administrator's finding of non-compliance, and Developer shall be given at least ten (10) calendar days to cure any noncompliance that relates to the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) calendar days for reasons which are beyond the control of Developer, Developer must commence the cure within such thirty (30) calendar days and diligently pursue such cure to completion. If Developer fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Developer's Default. The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Developer or limit City's rights or remedies for any such Default. 8. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (twenty (20) calendar days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) calendar days in the event of non -monetary Defaults) in which the Default must be cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as IE 3-105 quickly as possible, and in no event later than thirty (30) calendar days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the foregoing, the City is not required to give Developer notice of default and may immediately pursue remedies for a Developer Default that result in an immediate threat to public health, safety or welfare. 8.2 Default by Developer. If Developer is alleged to have committed Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) calendar days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Developer's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) calendar day period shall waive any right to a hearing on the claimed Default. If Developer's appeal of the Notice of Default is timely and in good faith but after a public hearing of Developer's appeal the City Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) calendar day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Developer's appeal is communicated to Developer in writing. 8.3 City's Option to Terminate Agreement. In the event of an alleged Developer Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Developer with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Developer timely appeals any Notice of Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by Developer. Any such judicial challenge must be brought within sixty (60) calendar days of service on Developer, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2. 8.4 Default by City. If Developer alleges a City Default and alleges that the City has not cured the Default within the Cure Period, Developer may pursue any legal or equitable remedy available to it, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Developer's performance hereunder shall neither be a Developer Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Developer's option (and provided Developer delivers written notice to City within thirty (30) calendar days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver. Failure or delay by any Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. R 3-106 8.6 Specific Performance Remedy. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Agreement has begun. After such implementation, both Developer and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Developer and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Developer or City for such efforts. For the above reasons, except as set forth in Section 8.7, City and Developer agree that damages would not be an adequate remedy if either City or Developer fails to carry out its obligations under this Agreement. Therefore, except as set forth in Section 8.7, specific performance of this Agreement is necessary to compensate Developer if City fails to carry out its obligations under this Agreement or to compensate City if Developer falls to carry out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for any Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Developer's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. In no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Developer expressly agrees that the City, any City agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City") shall not be liable for any monetary damage for a Default by the City or any claims against City arising out of this Agreement. Developer hereby expressly waives any such monetary damages against the City. The sole and exclusive judicial remedy for Developer in the event of a Default by the City shall be an action in mandamus, specific performance, or other injunctive or declaratory relief. 8.8 Additional City Remedy for Developer's Default. In the event of any Default by Developer, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Developer's Default without recourse from Developer or its successors or assigns. 8.9 No Personal Liabilityof Officials, Employees, or Agents. No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. 17 3-107 8.10 No Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall not recover any of its costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include, but are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action. 9. Force Majeure. No Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Developer's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Obligations of Developer. 10.1 Indemnily Arising From Acts or Omissions of Developer. Except to the extent caused by the intentional misconduct or gross negligent acts, errors or omissions of City or one (1) or more of City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Developer relating to the Property or Project, or pursuant to this Agreement. City shall be entitled to retain separate counsel to represent City against the Claim and the City's reasonable defense costs for its separate counsel shall be included in Developer's indemnity obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to minimize the total litigation expenses incurred by Developer. In the event either City or Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Developer shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 10.1, Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any 18 3-108 Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement (including without limitation any actions taken pursuant to CEQA with respect thereto). Said indemnity obligation shall include payment of reasonable attorney's fees, expert witness fees, City staff costs (including overhead), and court costs. City shall promptly notify Developer of any such Claim and City shall cooperate with Developer in the defense of such Claim. Developer shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Developer is so notified and if City fails to cooperate in the defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's reasonable defense costs for its separate counsel shall be included in Developer's indemnity obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to minimize the total litigation expenses incurred by Developer. In the event either City or Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Developer shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). No settlement of any Claim against City or City's Affiliated Parties shall be executed without the written consent of both the City and Developer. The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmentallndemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Developer in connection with Developer's Development of the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date occurs, and shall survive the Termination Date. 11. Assignment. Owner and Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a "Permitted Transferee" (which successor, as of the effective date of the Transfer, shall become the "Developer" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such transfer shall include the assignment and assumption of Developer's rights, duties, and Z 3-109 obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Developer's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of Developer's interest in the Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Developer and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Developer assigns to the successor Developer and the successor Developer assumes from the transferring Developer all of the rights and obligations of the transferring Developer with respect to the Property and this Agreement, or interest in the Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condition precedent to the successor Developer's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property, without Developer's written consent. Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and severally liable to City, together with the successor Developer, to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Developer shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred: (i) the transferring Developer no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Developer is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Developer has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Developer either (A) provides City with substitute security equivalent to any security previously provided by the transferring Developer to City to secure performance of the successor Developer's obligations hereunder with respect to the Property, or interest in the Property, or the portion of the Property so Transferred, as determined in the City's sole discretion, or (B) if the transferred obligation in question is not a secured obligation, the successor Developer either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction, as determined in the City's sole discretion, that the successor Developer has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. Any determination by the City in regards to the second paragraph of Section 11, subpart (iv) (A), (B), shall be documented in writing. 20 3-110 12. Mortgagee ee Rights. 12.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit Developer in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortizaizee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Developer or other affirmative covenants of Developer, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortgagee, Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within thirty (30) calendar days after receiving a Notice of Default with respect to a monetary Default and within sixty (60) calendar days after receiving a Notice of Default with respect to a non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within sixty (60) calendar days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60) calendar day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within sixty (60) calendar days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non -monetary Default within sixty (60) calendar days and diligently prosecutes the cure to completion. 21 3-111 13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 14. Miscellaneous Terms. 14.1 Reserved 14.2 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attn: City Manager With a copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 TO DEVELOPER: Derek Picerne TPG (KCN) Acquisition, LLC 5000 Birch Street, Ste. 600 Newport Beach, CA 92660 With a copy to: Sean Matsler, Esq. Cox, Castle & Nicholson LLP 3121 Michelson Drive, Ste. 200 Irvine, CA 92612 Any Party may change the address stated in this Section 14.2 by delivering notice to the other Parties in the manner provided in this Section 14.2, and thereafter notices to such Party or Parties shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of. (i) the date received, or (ii) three (3) business days after deposit in the mail as provided above. 14.3 Project as Private Undertaking. The Development of the Project is a private undertaking. Neither the Developer nor the City is acting as the agent of the other in any respect, and each is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only 22 3-112 relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. 14.4 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 14.5 Estoppel Certificates. At any time, any Party may deliver written notice to the other Party requesting that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. Such estoppel certificates may be relied upon only by the Parties, their respective successors and assigns, and, in the event of an estoppel certificate issued by City, a Mortgagee of Developer, including a Permitted Transferee, and its actual or prospective Mortgagee. City shall be entitled to payment/reimbursement for its actual and reasonable costs of investigation and preparation of an estoppel certificate prior to issuing the same. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) calendar days following receipt (assuming, in the case of an estoppel certificate to be issued by City, Developer has paid City the cost thereof, as provided above). 14.6 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 14.7 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 14.8 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 23 3-113 14.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same agreement. 14.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 14.11 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that no Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits of this Agreement if any of Developer's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Developer shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Developer's obligations under this Agreement. The provisions of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 14.12 Construction. This Agreement has been drafted after extensive negotiation and revision. Both City and Developer are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Developer had the opportunity to be so represented and voluntarily chose to not be so represented. City and Developer each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this Agreement in favor of or against any Party. 14.13 Successors and Assigns, Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. Except for those provisions relating to indemnity in Section 10, all other provisions of this Agreement shall, from and after the Effective Date hereof, be enforceable as equitable servitudes and constitute covenants running with the land. Subject to occurrence of the Effective Date, each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is 24 3-114 for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 14.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Article 11. 14.14 No Third Partv Beneficiaries. The only Parties to this Agreement are City and Developer. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 14.15 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 14.16 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 14.17 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A through B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESIGNATION DESCRIPTION A Legal Description of Property B Site Map 14.18 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange 25 3-115 within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. [SIGNATURE PAGE FOLLOWS] 26 3-116 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT ATTEST: Leilani I. Brown, City Clerk APPROVED AS TO FORM: Aaron C. Harp, City Attorney Sean Matsler, Attorney for Developer "DEVELOPER" TPG (KCN) Acquisition, LLC, a California limited liability company By: _ Name: Title: By: _ Name: Title: "CITY" 27 CITY OF NEWPORT BEACH, a municipal corporation and charter city Mayor 3-117 ACKNOWLEDGEMENTS A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On , before me, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On , before me, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) -28- 3-118 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 3-119 RESIDENCES AT 4400 VON KARMAN PROJECT LEGAL DESCRIPTION PARCEL 1: THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 91-155 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 266, PAGES 16 THROUGH 22 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 91-155; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 49°21'34" WEST 584.54 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 41005'02" WEST 54.87 FEET; THENCE SOUTH 04016'29" EAST 257.91 FEET; THENCE SOUTH 85°43'31" WEST 685.70 FEET TO A LINE PARALLEL WITH AND 1.00 FEET EASTERLY OF THE EASTERLY RIGHT-OF-WAY LINE OF VON KARMAN AVENUE AS SHOWN ON SAID PARCEL MAP NO 91-155; THENCE ALONG SAID PARALLEL LINE NORTH 06059'31" WEST 296.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 549.00 FEET; THENCE ALONG SAID CURVE NORTHEASTERLY 90.98 FEET THROUGH A CENTRAL ANGLE OF 09029'40" TO THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" WEST 204.00 FEET"; THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 274.72 FEET; THENCE NORTH 40°38'26" EAST 156.94 FEET TO THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" EAST 204.44 FEET"; THENCE ALONG SAID SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCELAND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 166.34 FEET; THENCE NORTH 40038'26" EAST 284.73 FEET TO SAID NORTHEASTERLY LINE OF PARCEL 2; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°21'34' EAST 157.28 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING: 4.51 ACRES, MORE OF LESS. PARCEL 2: THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 91-155 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 266, PAGES 16 THROUGH 22 OF PARCEL MAPS, TOGETHER WITH PARCEL 1 OF PARCEL MAP NO. 82-713 AS SHOWN ON A MAP THEREOF, FILED IN BOOK 181, PAGES 13 THROUGH 19 OF PARCEL MAPS, BOTH IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. I: X, ty: Ii11►[ej1a: I:]: 19Y0 OTA IICMAN to] : 1:i�_11►1W_1YN:Iw91=01VIA: IO7_69go] Iwe] 11111 3-120 COMMENCING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 91-155; THENCE ALONG THE NORTHEASTERLY LINE THEREOF NORTH 49°21'34" WEST 584.54 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 41005'02" WEST 54.87 FEET; THENCE SOUTH 04°16'29" EAST 257.91 FEET; THENCE SOUTH 85043'31" WEST 685.70 FEET TO A LINE PARALLEL WITH AND 1.00 FEET EASTERLY OF THE EASTERLY RIGHT-OF-WAY LINE OF VON KARMAN AVENUE AS SHOWN ON SAID PARCEL MAP NO 91-155; THENCE ALONG SAID PARALLEL LINE NORTH 06059'31" WEST 296.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 549.00 FEET; THENCE ALONG SAID CURVE NORTHEASTERLY 90.98 FEET THROUGH A CENTRAL ANGLE OF 09029'40" TO THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" WEST 204.00 FEET"; THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49°21'34" EAST 274.72 FEET; THENCE NORTH 40038'26" EAST 156.94 FEET TO THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL LABELED N.A.P. OF SAID PARCEL MAP NO. 91-155 HAVING A BEARING AND DISTANCE OF "NORTH 49021'34" EAST 204.44 FEET"; THENCE ALONG SAID SOUTHWESTERLY LINE AND THE SOUTHEASTERLY LINE OF SAID N.A.P. PARCEL AND ITS NORTHEASTERLY PROLONGATION THROUGH THE FOLLOWING COURSES: SOUTH 49021'34" EAST 166.34 FEET; THENCE NORTH 40°38'26" EAST 284.73 FEET TO SAID NORTHEASTERLY LINE OF PARCEL 2; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°21'34' EAST 157.28 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING: 20.09 ACRES, MORE OF LESS. SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-WAY AND EASEMENTS OF RECORD. 3-121 EDIT B SITE MAP 3-122 Residences at 4400 Von Karman Project Site Map ORCH� STNET 3-123