HomeMy WebLinkAbout4.0_Newport Airport Village_PA2014-225CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
June 4, 2020
Agenda Item No. 4
SUBJECT: Newport Airport Village (PA2014-225)
•General Plan Amendment (GP2014-004)
•Zoning Code Amendment (CA2014-009)
•Planned Community Developmnet Plan (PC2020-002)
•Development Agreement (DA2014-003)
•Addendum No. 3 to the 2006 General Plan Update PEIR and Addendum
No. 1 to the 2014 Land Use Element Amendment SEIR (ER2020-002)
SITE
LOCATION:
Northerly portion of the Campus Tract, generally bounded by Birch
Street, Campus Drive, MacArthur Boulevard and the extension of
Corinthian Way
APPLICANT: Saunders Property Company c/o Starpointe Ventures
OWNER: Saunders Property Company
PLANNER: Gregg Ramirez, Principal Planner
949-644-3219, gramirez@newportbeachca.gov
PROJECT SUMMARY
The applicant requests legislative approvals consisting of a General Plan Amendment
(GPA), Zoning Code Amendment to approve the Newport Airport Village Planned
Community Development Plan (PCDP), and a Development Agreement (DA) for a 16.46-
acre project area within the Campus Tract, adjacent to the John Wayne Airport (JWA).
Ultimately up to 444 dwelling units (329 base units and 115 density bonus units) and
297,572 square feet of retail, office, and airport supporting uses would be accommodated
at the project site.
The GPA would change the land use category of the site from AO (Airport Office) to MU-
H2 (Mixed Use Horizontal 2). No development capacity increase above what the General
Plan currently allows for the Airport Area is proposed. The PCDP would establish
permitted uses, development standards, and design guidelines for the future
redevelopment of the project area with mixed-use and commercial development. The
applicant requests a development agreement that would provide rights to develop the
PCDP and public benefits consisting of the payment of substantial fees not otherwise
required. No specific development project is included in this application. Future
development projects would go through the City’s existing Site Development Review
process prior to building permit issuance. Minor development might be approvable at the
staff level and more significant projects will require a public hearing with either the Zoning
Administrator or Planning Commission depending upon the size of the project.
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The City has prepared an addendum to two previously certified Environmental Impact
Reports in accordance with the California Environmental Quality Act to serve as the
environmental analysis for this project.
RECOMMENDATION
1) Conduct a public hearing;
2) Find that potential environmental impacts have been previously mitigated through the
implementation of the policies of the General Plan as evaluated in Program
Environmental Impact Report (PEIR) for the 2006 General Plan Update (SCH No.
2006011119) and the Supplemental Environmental Impact Report (SEIR) for the 2014
Land Use Element Amendment (SCH No. 2013101064); therefore, in accordance with
Section 15164 of the California Environmental Quality Act (CEQA) Guidelines, an
addendum to the previously adopted PEIR and SEIR is the appropriate environmental
documentation for the Project;
3) Adopt Resolution No. PC2020-020 (Attachment No. PC 1) recommending the City
Council adoption of Environmental Impact Report Addendum No. ER2020 -002 and
approval of General Plan Amendment No. GP2014-004 (including a waiver of the
neighborhood park dedication requirement pursuant to General Plan Policy LU
6.15.13), Zoning Code Amendment No. CA2014-009, Planned Community
Development Plan No. PC2020-002 (including a waiver of the density standards of
General Plan Policy LU 6.15.7 pursuant to Government Code §65915(e)(1), and
Development Agreement No. DA2014-003 for the Newport Airport Village Planned
Community Project, located at 4341, 4361, and 4501 Birch Street; 4320, 4340, 4360,
4400, 4500, 4520, 4540, 4570, 4600 and 4630 Campus Drive; and 4525, 4533, and
4647 MacArthur Boulevard (PA2014-225).
INTRODUCTION
Project Setting
The 16.46-acre project site is generally located southeast of John Wayne Airport and is
west of MacArthur Boulevard, south of Campus Drive, north of Birch Street, and about
550 feet north of Dove Street (Figure 1). The John Wayne Airport 65-dB Community Noise
Equivalent Level (CNEL) noise contour transects the site, running from north to south and
approximately half of the project area is located within the 65-dBA CNEL contour (Figure
2). Portions of the project area are also within the John Wayne Airport Safety Zone 3. The
project site is currently developed with a variety of commercial uses, including retail,
restaurants, rental vehicle facilities and office buildings.
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The project area is within the Airport Area of the City and currently has a General Plan
Land Use Plan Category of Airport Office (AO). Additionally, the project area is zoned OA
(Office Airport) that allows uses consistent with the Land Use Plan Category.
Figure 1 – Vicinity Map
John Wayne Airport (JWA), a commercial and general aviation airport, is owned and
operated by the County of Orange and is located to the west and north of the site (across
Campus Dr.). To the immediate northeast of the site, on the southwest corner of
MacArthur Blvd. and Campus Dr., is a five-story office building and a small multi-tenant
retail commercial building. Across MacArthur Blvd. is a nine-story office building that
contains professional and medical office uses; a five-story apartment building at the
intersection of Douglas and Martin Court; and multiple hotels and restaurants along
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MacArthur Blvd. To the east (across Birch St) are several multi-story office buildings that
range from three to fourteen stories, hotels, and retail and restaurant uses. Commercial
services, including vehicle sales and repairs and a pharmacy; restaurants; and office
uses, including medical offices occupy the properties to the south of the proposed
planned community.
Figure 2 – Project Boundaries
Project Description
Saunders Property Company c/o Starpointe Ventures (“Applicant”) seeks approval of the
following applications:
• General Plan Amendment (GP2014-004) – A request to change the General Plan
Land Use Designation of the project area from Airport Office (AO) to Mixed Use
Horizontal 2 (MU-H2) and to amend Table LU2 (Anomaly Locations) to add the project
area as an anomaly to allow for the development of 329 dwelling units, exclusive of
any permitted density bonus, and 297,572 square feet of nonresidential floor area;
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• Zoning Code Amendment (CA2014-009) – A request to change the zoning district
of the project area from OA (Office Airport) to PC (Newport Airpo rt Village Planned
Community);
• Planned Community Development Plan (PC2020-002) – A request to adopt the
Newport Airport Village Planned Community Development Plan (PCDP). The PCDP
sets the development, design and land use standards for the project area;
• Development Agreement (DA2014-003) – A request for a Development Agreement
between the Applicant and the City, which would provide vested rights to develop the
planned community, while also providing negotiated public benefits; and
• Addendum to the 2006 General Plan Update and the 2014 Land Use Element
Amendment Environmental Impact Reports (ER2020-002) – Pursuant to the
California Environmental Quality Act (CEQA), the addendum will address reasonably
foreseeable environmental impacts resulting from the legislative amendment
requests.
As noted, this Applicant’s request does not include any project specific development
project or plans, but rather is for legislative approvals only. Should the applications be
approved by the City Council, future development would be required to comply with the
development and use standards set forth in the PCDP.
Background
A similar, but more intensive project, was previously considered as part of the 2014 Land
Use Element Update. Unlike the current proposal that limits development to the existing
allocated units under the General Plan and allowed nonresidential intensity, the 2014
proposal would have increased the density in the Airport Area by 329 dwelling units and
238,077 sq. ft. of nonresidential uses in the larger 26.4-acre Campus Tract. Although the
City Council approved the 2014 Land Use Element Update, it failed to obtain voter
approval as required by Charter Section 423. The SEIR for that amendment was certified
and the outcome of the vote did not nullify its certification. Additionally, the City Council
did not rescind its certification of the SEIR, and therefore, it remains a certified resource.
On April 23, 2020, the Planning Commission held a study session to become familiar with
the proposed project. The Applicant presented the project and staff discussed the process
and summarized the requested applications. Through this process, the public was also
provided an opportunity to participate and comment. Aside from general questions and
discussion, the Commission discussed parkland dedication requirements, how the project
can help meet the City’s Regional Housing Needs Assessment (RHNA) obligations, and
the future phasing of construction of residential and non-residential uses. The study
session focused on how the project would measure up to the JWA Airport Environs Land
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Use Plan (AELUP) and future Airport Land Use Commission (ALUC) review. No action
was taken by the Planning Commission during or at the conclusion of the study session.
DISCUSSION
General Plan Amendment
The proposal would amend the General Plan Land Use Category from Airport Office (AO)
to Mixed Use Horizontal 2 (MU-H2). The existing land use plan categories described
below are shown in Figure 3.
The AO land use plan category is described on page 3-13 of the General Plan Land Use
Element as: “[t]he AO designation is intended to provide for the development of properties
adjoining the John Wayne Airport for uses that support or benefit from airport operations.
These may include professional offices, aviation retail, automobile rental, sales, and
service, hotels, and ancillary retail, restaurant, and service uses.” The AO category
provides for a, “floor area to land area ratio of 0.5, except for warehousing which may be
developed at a floor area to land ratio of 0.75.”
Figure 3 – Existing Land Use Map
(Excerpt Land Use Element Figure LU11)
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The MU-H2 land use plan category is described on page 3-14 of the General Plan: “[t]he
MU-H2 designation applies to properties located in the Airport Area. It provides for a
horizontal intermixing of uses that may include regional commercial office, multi-family
residential, vertical mixed-use buildings, industrial, hotel rooms, and ancillary
neighborhood commercial uses.” It also provides that, “[r]esidential: maximum of 2,200
units as replacement of existing office, retail, and/or industrial uses at a maximum density
of 50 units per adjusted gross acre, of which a maximum of 550 units may be developed
as infill. Nonresidential Uses: as defined by Table LU2 [Anomaly Locations].”
The revised land use designation would be consistent with the properties to the east of
the project area, which are across Birch Street, between Corinthian Way and MacArthur
Boulevard (Figure 4).
Figure 4 – Proposed Land Use Map
Airport Area Dwelling Units
The MU-H2 designation and General Plan Policy LU 6.15.5 (Residential and Supporting
Uses) allows a maximum of 2,200 residential units of which 1,650 units may be developed
as replacement of existing office, retail, and/or industrial uses. The remaining 550 uni ts
are classified as additive units, meaning they are not required to replace other units and
they may be constructed as “in-fill” units to existing commercial or office development
within the Conceptual Development Plan Area (CDPA) of the Airport Area as illustrated
in Figure LU22 of the General Plan Land Use Element (Attachment No. PC 2). Any eligible
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density bonus allowed by Government Code §65915 (Density Bonus Law) and Newport
Beach Municipal Code (NBMC) Chapter 20.32 (Density Bonus) are not included in the
2,200-unit allowance or the 50 dwelling units per acre standard. As indicated, the
proposed amendment will not increase the existing nonresidential floor area currently
allowed or the 2,200 dwelling unit limit.
Land Use Element Policy LU 6.15.5 Residential and Supporting Uses
Accommodate the development of a maximum of 2,200 multi -family residential units,
including work force housing, and mixed-use buildings that integrate residential with
ground level office or retail uses, along with supporting retail, grocery stores, and
parklands. Residential units may be developed only as the replacement of underlying
permitted nonresidential uses. When a development phase includes a mix of residential
and nonresidential uses or replaces existing industrial uses, the number of peak hour trips
generated by cumulative development of the site shall not exceed the number of trips that
would result from development of the underlying permitted nonresidential uses. However,
a maximum of 550 units may be developed as infill on surface parking lots or areas not
used as occupiable buildings on properties within the Conceptual Development Plan Area
depicted on Figure LU22 provided that the parking is replaced on site.
The City applies conversion factors to determine consistency with the trip neutral
requirement of this policy as established by the Airport Area Residential and Mixed-Use
Adjustment Factors document created by the City’s Traffic Engineer. The existing site is
allowed 358,498 square feet of commercial square footage. The applicant has requested
a total of 329 replacement dwelling units that requires the conversion of 60,926 square
feet of commercial floor area (5.4 du/s per 1,000 square feet) to be consistent with LU
6.15.5.
Density bonus units do not count towards the capacity limits of the General Plan since
State Housing Law excludes these types of dwelling units from maximum allowable
densities under the General Plan. In considering the Newport Airport Village project, in
conjunction with the other approved and pending projects within the MU-H2 land use
designation, there would be 430 remaining units available for other properties with the
MU-H2 land use plan category designation (see Table 1 below). The approval of the
proposed amendment would specifically allocate 329 units of the remaining units
available to a portion of the project site , and they could not be developed at some other
site designated MU-H2. Residential units in the Airport Area have been slow to develop
over the last 13 years since the opportunity was first introduced with the comprehensive
update of the General Plan in 2006. A variety of factors contribute to this circumstance
but the principal one is the existing land value. The property owner believes the value of
the land, along with other factors, contributes to create a viable housing opportunity site.
Given the approaching high RHNA allocation, the City may need this housing opportunity
site to comply with the State mandate.
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Table 1 – Airport Area Residential Units
Residential Development
Allocation
Base Units
Density
Bonus
Units
Project
Totals
With
Density
Bonus
Replacement
Units
Additive
Units
Total
Units
General Plan Development Limit
(MU-H2)
1650 550 2,200
Approved Projects
Uptown Newport 632 290 922 322 1,244
Newport Crossings 259 0 259 91 350
Projects Under Review
The Koll Center Residences 260 260 52 312
Proposed Newport Airport Village 329 0 329 115 444
Remaining Development
Allocation
430 0 430
Airport Office Floor Area Limits
Currently the Airport Office (AO) land use designation allows a floor area ratio (FAR) of
0.5 which results in 358,498 square feet for the project site. Due to the conversion of
nonresidential floor area to dwelling units, the existing 0.5 FAR over the project site would
no longer be permissible. To reflect the reduction of floor area due to the conversion
allocated to the project site, the GPA would add Anomaly No. 86 to Table LU2 (Anomaly
Locations) of the General Plan.
Table LU2 Anomaly Locations
Anomaly
Number
Statistical
Area
Land Use
Designation
Development
Limit (sf) Development Limit (Other) Additional Information
86 L4 MU-H2
Nonresidential
development
297,572
329 dwelling units
General Plan Consistency
The proposed applications are legislative acts. Neither the NBMC nor State planning law
specify findings that need to be adopted to approve the requested General Plan
Amendment. Nevertheless, the project is consistent with the General Plan since “[t]he
MU-H2 designation applies to properties located in the Airport Area. It 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.” The allowed uses of the MU-H2 land use category are
broad enough to allow for the existing uses of the AO category while allowing residential
or mixed-use development at the density described. The proposed PCDP regulations
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would provide for a combination of residential development, airport supporting uses, and
a variety of commercial land uses consistent with the MU-H2 designation.
The draft Planning Commission resolution (Attachment No. PC 1) includes an analysis of
relevant Airport Area polices. Furthermore, the EIR Addendum includes a comprehensive
analysis of all relevant General Plan polices. The analysis shows the requested
amendments are consistent with all applicable General Plan polices. However, two
warrant additional discussion as they require a policy waiver to achieve consistency.
General Plan Policy Waiver - LU 6.15.13 Neighborhood Parks Standards
General Plan Policy LU 6.15.13 is specific to the Airport Area. The policy is in tended to
ensure that adequate neighborhood parks are developed to serve new residential
villages. The policy itself allows the City to waive the dedication requirement under certain
circumstances and the applicant requests the requirement be waived.
LU 6.15.13 Neighborhood Parks Standards. To provide a focus and identity for the
entire neighborhood and to serve the daily recreational and commercial needs of
the community within easy walking distance of homes, require dedication and
improvement of at least 8 percent of the gross land area (exclusive of existing
rights-of-way) of the first phase development in each neighborhood, or ½ acre,
whichever is greater, as a neighborhood park. This requirement may be waived by
the City where it can be demonstrated that the development parcels are too small
to feasibly accommodate the park or inappropriately located to serve the needs of
local residents, and when an in-lieu fee is paid to the City for the acquisition and
improvement of other properties as parklands to serve the Airport Area.
In every case, the neighborhood park shall be at least 8 percent of the total
Residential Village Area or one acre in area, whichever is greater, and shall have
a minimum dimension of 150 feet. Park acreage shall be exclusive of existing or
new rights-of-way, development sites, or setback areas. A neighborhood park shall
satisfy some or all of the requirements of the Park Dedication Ordinance, as
prescribed by the Recreation Element of the General Plan.
The Applicant believes it would be inappropriate to locate a neighborhood park within the
project site due to its proximity to John Wayne Airport. Pursuant to the policy, the
Applicant has agreed to pay an in-lieu park fee of $2,500,000. The value was established
by City Council Resolution No. 2007-30.
A significant portion of the project site is impacted by high noise levels within JWA Safety
Zone 3 and locating a park in such areas may not be appropriate or desirable.
Additionally, predominant uses in Planning Area 2 (see Figure 6) are vehicle storage lots
for car rental agencies operating with long-term leases. Air quality in the area and the
limited residential density planned for the Airport Area are also factors suggesting a new
public park within the proposed project site may not be desirable. If the park dedication
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was required, the best potential location would be within Planning Area 1 , outside the 65-
dBA CNEL noise contour and JWA Safety Zone 3 further reducing the available land for
residential or mixed-use development. In this scenario, a 1-acre dedication of 6.02 acres
of relatively unconstrained land is a significant percentage of the area potentially avail able
for residential use. If the dedication were required in conjunction with the first phase
density bonus development, the cost of the dedication could render the density bonus
project financially infeasible. These or other potential factors could provide sufficient
grounds for the City Council to waive the dedication requirement. If the City Council
chooses not to waive the parkland dedication requirement, development of the future park
would be required in accordance with this policy. With either choice, neighborhood park
dedication or waiver, the proposed project is consistent with this policy. Staff believes the
reasons cited above compelling to waive the dedication requirement. The recommended
actions for project approval include a recommendation to the City Council to waive the
policy.
General Plan Policy Waiver - LU 6.15.7. Overall Density and Housing Types
LU 6.15.7. Overall Density and Housing Types. Require that residential units be
developed at a minimum density of 30 units and maximum of 50 un its per net acre
averaged over the total area of each residential village. Net acreage shall be
exclusive of existing and new rights-of-way, public pedestrian ways, and
neighborhood parks. Within these densities, provide for the development of a mix
of building types ranging from townhomes to high-rises to accommodate a variety
of household types and incomes and to promote a diversity of building masses and
scales.
The residential component of the project is 329 units (excluding density bonus units)
within the 16.46-acre residential village, and the density is about 20 dwelling units per
acre (du/ac) and below the minimum 30 du/ac standard. If the density bonus units were
included, the result would be about 27 du/ac. To comply, additional units would need t o
be included and required to be replacement units pursuant to Policy LU 6.15.5, meaning
the additional units would come at the expense of underlying permitted nonresidential
uses. The 16.46-acre property is partially constrained by the JWA 65-dBA CNEL noise
contour and all residential use is inconsistent in this high noise area. The property is also
partially constrained by JWA Safety Zone 3 that limits residential uses to very low
densities if not deemed unacceptable because of noise.
Planning Area 1 is 7.14 acres and the area outside both the 65 dBA CNEL noise contour
and Safety Zone 3 where residential use would be allowed consistent with the AELUP is
further limited to 6.02 acres. To comply with Policy LU 6.15.7, 493 units would need to be
constructed on 6.02 acres resulting in a density of 81.9 du/ac without including potential
density bonus units which would exceed the maximum allowable density. However,
California Government Code Section 65915(e)(1) prohibits a city from applying a
development standard that will have the effect of physically precluding the construction
of a development for projects that propose a density bonus. The waiver of height
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standards, number of stories and setbacks to accommodate project amenities such as an
interior courtyard, community plaza and high ceilings have been interpreted as physical
constraints that warrant a waiver pursuant to Government Code §65915(e)(1) in Wollmer
v. City of Berkeley, (2011) 193 Cal. App. 4th 1329. Staff believes the application of the
density standards of Policy LU 6.15.7 would have precluded the proposed density bonus
units of the project given the constraints, and therefore, it must be waived if the project is
approved. It should be noted that the project would create an opportunity for housing
(including affordable housing) that would be approximately 46 du/acre, not including the
density bonus units in Planning Area 1, which is within the density range of the Policy LU
6.15.7. The requirement to waive this policy in no way d iminishes the City’s discretion to
deny the proposed project.
Housing Element and Regional Housing Needs Assessment (RHNA)
If the proposed land use element is approved, corresponding changes to the Housing
Element would be authorized. Corresponding maps, figures and tables would be updated.
Most notably, PCDP Planning Area No. 1 would be added to the City’s Housing Site
Inventory. Credit would be given for the project towards the City’s upcoming RHNA
allocation for the next housing element cycle (2021-2029) due to the fact that project
meets all criteria as a viable housing opportunity site pursuant to State Housing Element
Law. Credit might not be given if construction occurs prior to the next housing element
cycle.
Zoning Code Amendment
The Applicant requests the project site be rezoned from OA (Office Airport) to PC
(Planned Community - Newport Airport Village Planned Community) to implement the
proposed MU-H2 land use plan category (the GPA). This rezone would allow for the
adoption of the Planned Community Development Plan (PCDP), which set s the
development standards and land use regulations for the project area.
The purpose of the PC district as provided in NBMC §20.56.10 is to:
1) Provide for the classification and development of land as coordinated,
comprehensive projects in order to take advantage of the superior environment
resulting from large-scale community planning,
2) Allow diversification of uses as they relate to each other in a physical and
environmental arrangement while ensuring substantial compliance with the spirit,
intent, and provisions of this Zoning Code, and
3) Include various types of uses, consistent with the General Plan through the
adoption of a development plan and text materials that identify land use
relationships and associated development standards.
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NBMC §20.56.020(A) requires that a PC district contain at least 10 acres of improved
land unless the City Council waives the minimum acreage requirement. At 16.46 acres,
the Newport Airport Village PC District will not require such a waiver. NBMC §20.56.030
requires a PCDP to contain land use regulations and NBMC §20.56.040 requires a PCDP
include property development standards. The proposed PCDP includes these provisions
as summarized below. NBMC §20.56.050 outlines the procedure to adopt a PCDP and it
provides for the contents of the PCDP itself. In summary, staff believes the proposed
PCDP meets these Code requirements and recommends the Planning Commission
concur by adopting a recommendation to the City Council that it be adopted by ordinance.
Figure 5 below depicts the proposed Zoning Map.
Figure 5 – Proposed Zoning Map
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Planned Community Development Plan
The draft Newport Airport Village PCDP is within Exhibit E of Attachment No. PC 1. The
PCDP is divided into the following sections:
I. Introduction and Purpose – Introduces the project, site, and surrounding area.
II. Land Use and Development Regulations – Creates the permitted uses and
development standards.
III. Architectural Design Considerations – Provides principles and concepts to guide
the site layout and architectural design of buildings.
IV. Residential Design Guidelines – Establishes specific architectural standards that
residential developments will need to comply with.
V. Plan Administration and Implementation – Sets the process to review development
and amending the PCDP. Site Development Review is required for the
development of new buildings.
To achieve a mixed-use environment, Newport Airport Village PC District is divided into
two planning areas (see Figure 5). Planning Area 1 would accommodate all of the dwelling
units, plus up to 94,583 square feet of nonresidential (food service, retail, offices, and
personal services) uses. It is important to note that all dwelling units would be required to
be located outside of John Wayne Airport’s 65-dBA CNEL zone and Safety Zone 3 as
shown in Figure 6. Planning Area 2 is limited to nonresidential uses with an FAR of 0.5.
This would include food services, bars/nightclubs, retail sales, offices, personal services,
and most uses permitted or conditionally permitted within the Office Airport (OA) zone. A
summary of the proposed development standards is contained in Table 2.
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Figure 6 – Planning Areas
Table 2 – Development Standards
Development Standard Planning Area 1 Planning Area 2
Housing Density 30 units/acre minimum
46 units/acre maximum
N/A
Building Height 85’ (residential and mixed-use)
37’ (nonresidential)
37’, an increase to 55’ is
allowed with approval of a
Site Development Permit
Setbacks Buildings under 20’ in height
10’ from street property line
5’ from internal property line
Buildings 20’ or greater in height
20’ from street property line
5’ from internal property line
15’ from street property line
5’ from internal property line
Floor Area 94,583 square feet 0.5 Floor Area Ratio
(202,989 square feet)
Open Space Private – 5% gross floor area/unit
Common – 75 square feet/unit
N/A
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Traffic Analysis
To assess any potential traffic issues, a traffic analysis was prepared by Urban
Crossroads for use in the CEQA analysis based on the Newport Beach Traffic Model
(NBTM). As noted previously, the proposed project includes less development than
studied in the 2014 Land Use Element Amendment Traffic Impact Analysis and
consequently the project results in fewer peak hour and average daily trips (ADT) for the
project site.
When compared to the land uses currently allowed on the site by the current General
Plan, the proposed development without the density bonus results in 4 fewer AM peak
hour trips, 73 fewer PM peak hour trips and 763 fewer average daily trips (ADT). With the
density bonus, proposed development results in an increase of 52 AM peak hour trips, a
decrease of 22 PM peak hour trips and a decrease of 199 ADT. As a result of these trip
generation changes, the analysis did not identify any intersection or other traffic-related
impacts that would be created by the proposed project.
Charter Section 423 (AKA Greenlight Initiative)
City Council Policy A-18 requires that proposed GPAs be reviewed to determine if a vote
of the electorate would be required pursuant to City Charter Section 423. If a GPA
(separately or cumulatively with other GPAs within the previous 10 years within the same
Statistical Area of the General Plan) generates more than 100 peak hour trips (a.m. or
p.m.), adds 40,000 square feet of nonresidential floor area, or adds more than 100
dwelling units in a statistical area, a vote of the electorate would be required i f the City
Council approves the GPA.
The property is located in Statistical Area L4. The proposed General Plan Amendment
would only change the land use designation of the site and not increase nonresidential
floor area or residential units. The 329 dwelling units requested are already provided in
the MU-H2 land use plan category and Policy LU 6.15.6. The 2,200-dwelling-unit
allocation to the MU-H2 is not changing and the Amendment does not increase the
amount of floor area proposed. Consequently, there is no increase in a.m. or p.m. peak
hour traffic trips. As a result, the Amendment is not classified as a major amendment
requiring a vote of the electorate should the City Council choose to approve the requested
General Plan Amendment.
Airport Noise
Being adjacent to the airport, there is a concern about noise affecting future residents.
General Plan Policy, the Airport Environs Land Use Plan for John Wayne Airport (AELUP)
and the propose PCDP will not permit residential units in areas subject to noise at 65 dBA
CNEL or greater. The PCDP further requires that residential construction comply with
NBMC Section 10.26.030, which requires the interior ambient noise level of the dwelling
units does not exceed 45 dBA between 7:00 a.m. and 10:00 p.m., 40 dBA between 10:00
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p.m. and 7:00 a.m. Additionally, should a neighborhood park be required , notification to
future residents and the public by posting signs in outdoor open areas and recreation
areas, is mandated by the draft PCDP. Residential use is considered “conditionally
consistent” with the airport by the AELUP provided interior noise mitigation and exterior
notice as described is provided. As a result, the proposed project is compatible with the
airport and consistent with the adopted AELUP.
Airport Land Use Commission (ALUC)
Since the proposed project includes General Plan and Zoning Amendments and a PCDP,
review for consistency with the Airport Environs Land Use Plan for John Wayne Airport
(AELUP) is required by Section 21676(b) of the Public Utilities Code. The amendments
will be forwarded to the ALUC for their review and a determination of consistency with the
AELUP prior to the City Council consideration. Should the ALUC find the project
consistent with the AELUP, the project can proceed to the City Council without further
delay. If the ALUC finds the project inconsistent with the AELUP, which is their prerogative
despite the fact that the amendments appear to be consistent with the adopted AELUP ,
the City Council would have to initiate a process to override the ALUC determination by
a two-thirds vote of the City Council, should the Council choose to approve the project.
As indicated, staff believes the proposed project is consistent with the requirements and
standards in the AELUP. Residential units would be located outside the 65 dBA CNEL
noise contour line established by the AELUP, and the use would be “conditionally
consistent” provided interior noise mitigation is provided and exterior notice of the
proximity to operating aircraft is provided. These two conditions are mandated by the
PCDP. The project site does include areas within JWA Safety Zones 3 and 6. Safety Zone
3 precludes high density residential, and the PCDP does not permit residential units within
this zone. Commercial development allowed by the PCDP is permitted to be within Safety
Zone 3. The remainder of the site is within Safety Zone 6, which is less restrictive than
Safety Zone 3 and allows all residential uses and commercial development. Refer to
Figure 6 to see the boundaries of 65 dBA CNEL and Safety Zone 3. Additionally, the
Applicant has received a Determination of No Hazard to Air Navigation from the Federal
Aviation Administration for 85 feet above ground level (AGL), which is the proposed
PCDP height limit for residential and mixed-use buildings.
In summary, staff believes the proposed amendments are consistent with the adopted
AELUP given the provisions of the PCDP, and as a result, staff supports a
recommendation to adopt the amendments.
Fiscal Analysis
The City’s consultant, Applied Development Economics, Inc., has prepared an
independent fiscal impact analysis (Attachment No. PC 3) based on the City’s Fiscal
Impact Model in accordance with General Plan Implementation Programs 12.1 and 12.2.
These programs require the preparation of a net fiscal analysis based upon an updated
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Newport Airport Village (PA2014-225)
Planning Commission, June 4, 2020
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model for significant development projects and General Plan Amendments. The City’s
fiscal impact model is designed to calculate the average cost of public services required
by new development, on the assumption that new development affects City services in
the same way that existing development does. The model concluded that the net impact
of the growth in land uses at build-out of the General Plan compared to existing land uses
in 2006 when the General Plan was last comprehensively updated, would result in a net
positive fiscal impact for the General fund of $21.7 million per year.
The analysis prepared for the proposed Newport Airport Village concludes that allowed
land uses on the site generate $153,364 while the proposed project would result in an
annual cost of $466,523 for a total of $619,887 annually. Since the proposed project
includes 329 units of the 1,650 replacement dwelling units already allowed in the MU-H2
land use designation, the net fiscal change is no different than that predicted in 2006 . In
other words, the City planned for this change by adopting the MU -H2 land use plan
category and project approval “locates” a portion of that change to the project site and
avoids it at a different MU-H2 site.
Development Agreement
Pursuant to NBMC Section 15.45.020(A)(2)(a), a Development Agreement is required
whenever a General Plan Amendment or Zoning Code Amendment is proposed that will
result in the development of 50 or more dwelling units. The intent of the Development
Agreement is to provide the property owner/developer a vested development right, while
providing some public benefit to the community. In this case, the property
owner/developer would have a vested right to develop 444 dwelling units (329 base units
and up to 115 density bonus units) and 297,572 square feet of commercial floor area,
provided the proposed development complies with the development regulations and
design guidelines set forth in the PCDP. The vested right to develop is for 15 years for
the residential portion of the project and 20 years for the nonresidential portion of the
project. In consideration of the vested development right, the property owner/developer
will pay the following in addition to standard impact fees:
• Public Benefit Fee: $6,000,000 in three installments
• General Pan Policy Waiver In-Lieu Park Fee: $2,500,000
• Public Safety Fee: $1,000,000 for Fire Life Safety staffing, services, or
equipment
The proposed Development Agreement (Exhibit F of Attachment No. PC 1) includes all
the mandatory elements for consideration and public benefits that are appropriate to
support conveying the vested development rights consistent with the General Plan,
NBMC, and Government Code Sections 65864 et seq.
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Environmental Review
On July 25, 2006, the City Council certified a Program Environmental Impact Report
(PEIR) for the General Plan 2006 Update (SCH No. 2006011119). The PEIR analyzed
the potential impacts of a citywide land use plan, and goals and policies for 10 General
Plan elements. The PEIR designated the project area as Airport Office and Supporting
Uses (AO). The designation would allow up to 358,498 square feet of office based on the
allowable 0.5 floor area ratio (FAR). The AO land use designation is intended to allow
uses that support or benefit from operations of the adjoining John Wayne Airport. These
may include professional offices; aviation; retail; automobile rental, sales, and service;
hotels and ancillary retail, restaurant, and service uses. This designation specifies an FAR
of 0.5, except for warehousing, which may be developed at an FAR of 0.75. Two previous
addendums to the PEIR, which are unrelated to the project area, have been previously
approved.
On July 22, 2014, the City Council certified a Supplemental EIR (SEIR) for the 2014
update to the Land Use Element of the General Plan (SCH No. 2013101064). The SEIR
focused on a General Plan Land Use Element Amendment proposing both reduced and
increased development capacities in various areas of the City. The SEIR evaluated the
designation of the project site as Mixed Use-Horizontal 2 (MU-H2). The SEIR assessed
the potential development of 238,077 square feet of office space and 329 additional
dwelling units for the project site as an increase to what the General Plan would allow. As
a result of failing to obtain voter approval, as required by Charter Section 423, the General
Plan Land Use Element Amendment was not implemented. The result of the vote did not
nullify the certification of the SEIR and the City Council has not rescinded its certification
of the SEIR.
As a result of the proposed project changes from the analysis that was conducted in 2014,
an Addendum to the PEIR and SEIR was prepared (Exhibit B of Attachment No. PC 1).
The Addendum analyzed the following environmental topics: Aesthetics, Agriculture and
Forestry Resources, Air Quality, Biological Resources, Cultural Resources, Energy,
Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials,
Hydrology, Land Use and Planning, Mineral Resources, Noise, Population and Housing ,
Public Services, Recreation, Transportation, Tribal Cultural Resources and Utilities and
Service Systems. This Addendum also includes analysis of new topical sections that were
not included in the previous EIRs; specifically, it includes a new energy section and a new
wildfire section. These topics were included in the Addendum because the State CEQA
checklist was updated to include them subsequent to both the PEIR and SEIR
certifications. This proposed Newport Airport Village PCDP would result in the same or
reduced development scope than what was analyzed in the PEIR and SEIR. Based on
the environmental analysis conducted, any potential impact has already been
appropriately addressed through the PEIR and SEIR.
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Newport Airport Village (PA2014-225)
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Pursuant to Section 15162 of the CEQA Guidelines, when an EIR has been certified for
a project, no subsequent EIR shall be required unless the City determines, on the basis
of substantial evidence in the light of the whole record, one or more of the following:
1. Substantial changes are proposed in the project which will require major revisions
of the previous EIR due to the involvement of new significant environmental effects
or a substantial increase in the severity of previously identified significant effects;
2. Substantial changes occur with respect to the circumstances under which the
project is undertaken which will require major revisions of the previous EIR due to
the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified significant effects; or
3. New information of substantial importance, which was not known and could not
have been known with the exercise of reasonable diligence at the time the previous
EIR was certified as complete, shows any of the following:
a. The project will have one or more significant effects not discussed in the
previous EIR;
b. Significant effects previously examined will be substantially more severe
than shown in the previous EIR;
c. Mitigation measures or alternatives previously found not to be feasible
would in fact be feasible and would substantially reduce one or more
significant effects of the project, but the project proponents decline to adopt
the mitigation measure or alternative; or
d. Mitigation measures or alternatives which are considerably different from
those analyzed in the previous EIR would substantially reduce one or more
significant effects on the environment, but the project proponents decline to
adopt the mitigation measure or alternative.
On the basis of the entire environmental review record, the project will not result in any new
significant impacts that were not previously analyzed in the PEIR or the SEIR. All potential
impacts would either be the same or less than those described in either the PEIR or SEIR
and 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 or SEIR,
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, an addendum to the previously adopted PEIR and SEIR is the appropriate
environmental documentation for the project.
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Alternatives
The Planning Commission has the discretion to recommend changes to the proposed
project to address areas of concern or to improve the proposed plan. The Commission
can also recommend the City Council not waive the neighborhood park dedication policy.
Lastly, the Commission can recommend denial if it believes the proposed plan introduces
incompatible uses to the area that cannot be adequately mitigated or if consistency with
the MU-H2 and/or other applicable Airport Area policies are not in evidence.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property
within 300 feet of the boundaries of the site (excluding intervening rights -of-way and
waterways), including the applicant and an email select alert was sent to email
subscribers of the Planning Division’s notification list. Notification is consistent with
applicable provisions of the NBMC Additionally, the item appeared on the agenda for this
meeting, which was posted at City Hall and on the City website.
Prepared by: Submitted by:
ATTACHMENTS
PC 1 Draft Resolution
Exhibit A – Legal Descriptions
Exhibit B – Addendum to EIRs
Exhibit C – General Plan Amendment
Exhibit D – Zoning Code Amendment
Exhibit E – Planned Community Development Plan
Exhibit F – Development Agreement
PC 2 Figure LU22 of the General Plan Land Use Element
PC 3 Fiscal Analysis
22
Attachment No. PC 1
Draft Planning Commission Resolution
Exhibit A – Legal Descriptions
Exhibit B – Addendum to EIRs
Exhibit C – General Plan Amendment Exhibit
Exhibit D – Zoning Code Amendment Exhibit
Exhibit E – Planned Community Development Plan
Exhibit F – Development Agreement
23
INTENTIONALLY BLANK PAGE24
RESOLUTION NO. PC2020-020
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA RECOMMENDING THE
CITY COUNCIL ADOPTION OF ENVIRONMENTAL IMPACT
REPORT ADDENDUM NO. ER2020-002 AND APPROVAL OF
GENERAL PLAN AMENDMENT NO. GP2014-004, ZONING CODE
AMENDMENT NO. CA2014-009, PLANNED COMMUNITY
DEVELOPMENT PLAN NO. PC2020-002, AND DEVELOPMENT
AGREEMENT NO. DA2014-003 FOR THE NEWPORT AIRPORT
VILLAGE PLANNED COMMUNITY PROJECT LOCATED AT 4341,
4361, AND 4501 BIRCH STREET; 4320, 4340, 4360, 4400, 4500,
4520, 4540, 4570, 4600 AND 4630 CAMPUS DRIVE; AND 4525,
4533, AND 4647 MACARTHUR BOULEVARD (PA2014-225)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Saunders Property Company (“Applicant”), with respect to
property located at 4341, 4361, and 4501 Birch Street; 4320, 4340, 4360, 4400, 4500,
4520, 4540, 4570, 4600 and 4630 Campus Drive; and 4525, 4533, and 4647 MacArthur
Boulevard within the northerly portion of the Campus Tract, generally bounded by Birch
Street, Campus Drive, MacArthur Boulevard and the extension of Corinthian Way
(“Property”). See Exhibit “A” for legal description.
2. The Applicant proposes a Planned Community Development Plan that would allow
redevelopment of the 16.46-acre Property with up to 329 residential dwelling units,
exclusive of any density bonus as allowed pursuant to California Government Code
Section 65915; and up to 297,572 square feet of office, retail, and commercial use
(“Project”).
3. The Property is designated AO (Airport Office and Supporting Uses) by the City of Newport
Beach General Plan (“General Plan”) Land Use Element and is located within the OA
(Office-Airport) Zoning District.
4. The Applicant, requests the following approvals from the City of Newport Beach (“City”):
• General Plan Amendment (GP2014-004) (“GPA”) – A request to change amend
the General Plan Land Use Designation of the Property from AO (Airport Office
and Supporting Uses) to MU-H2 Mixed-Use Horizontal 2 and to amend Table
LU2 (Anomaly Locations) to add Anomaly No. 86 to allow for the development of
329 dwelling units, exclusive of any permitted density bonus, and 297,572 square
feet of commercial uses;
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• Zoning Code Amendment (CA2014-009) – A request to change the zoning
district of the Property from OA (Office Airport) to PC-60 (Newport Airport Village
Planned Community);
• Planned Community Development Plan (PC2020-002) (“PCDP”) – A request
to adopt the Newport Airport Village Planned Community Development Plan
(“PCDP”). The PCDP sets the development design and use standards for the
Property;
• Development Agreement (DA2014-003) (“DA”) – A request for a Development
Agreement between the Applicant and the City, which would provide vested rights
to develop the planned community, while also providing negotiated public
benefits; and
• Addendum to the 2006 General Plan Update and the 2014 Land Use Element
Amendment Environmental Impact Reports (ER2020-002) – Pursuant to the
California Environmental Quality Act (“CEQA”), the addendum will address
reasonably foreseeable environmental impacts resulting from the Project.
5. The Property is not located within the coastal zone; therefore, amending the Local Coastal
Program or a coastal development permit is not required.
6. A study session was held on April 23, 2020, in the Council Chambers located at 100 Civic
Center Drive, Newport Beach to introduce the Project to the Planning Commission. No
action was taken at the study session.
7. The Planning Commission held a public hearing on June 4, 2020, in the Council Chambers
at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose
of the hearing was given in accordance with California Government Code Section 54950
et. seq. (“Ralph M. Brown Act”) and Chapters 15.45 (Development Agreements) and 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 hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. On July 25, 2006, the City Council adopted Resolution No. 2006-75, thereby certifying the
adequacy and completeness of the Environmental Impact Report (“EIR”) for the General
Plan 2006 Update (SCH No. 2006011119). The EIR was prepared in compliance with the
CEQA set forth in the California Public Resources Code Section 21000 et seq. and its
implementing State regulations set forth in the California Code of Regulations Title 14,
Division 6, Chapter 3 (“CEQA Guidelines”) and City Council Policy K -3. Additionally, in
accordance with Section 15168(a) of the CEQA Guidelines, the City prepared the EIR as
a Program Environmental Impact Report (“PEIR”). This PEIR analyzed the potential
impacts of a citywide land use plan, and the goals and policies of 10 general plan elements.
The General Plan designates the Property as AO (Airport Office and Supporting Uses).
The designation would allow up to 358,498 square feet of office based on the allowable
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0.5 floor area ratio (“FAR”). The AO land use designation is intended to allow uses that
support or benefit from operations of the adjoining John Wayne Airport. These may include
professional offices; aviation; retail; automobile rental, sales, and service; hotels and
ancillary retail, restaurant, and service uses. This designation specifies an FAR of 0.5,
except for warehousing, which may be developed at an FAR of 0.75.
2. Additionally, the City Council adopted Resolution Nos. 2007-79 and 2012-62 on December
11, 2007 and July 24, 2012, respectively. These resolutions approved CEQA addendums
1 and 2 to the PEIR for the General Plan 2006 Update to analyze changes to the
development intensities within the North Newport Center Planned Community (NNCPC)
Development Plan. No analysis of the Property was included in these addendums.
3. On July 22, 2014, the City Council adopted Resolution 2014-65, thereby certifying the
adequacy and completeness of a Supplemental EIR No. ER2014-002 (SEIR) as part of an
update to the Land Use Element of the General Plan (SCH No. 2013101064). The SEIR
was prepared in compliance with CEQA, CEQA Guidelines and City Council Policy K-3.
The SEIR focused on a General Plan Land Use Element Amendment proposing both
reduced and increased development capacities in various areas of the City.
The amendment that was the focus of the SEIR designated the Property as MU-H2 (Mixed-
Use Horizontal 2), among other changes to the General Plan Land Use Element. The SEIR
analyzed the impacts of potential development of an additional 238,077 square feet of
office space and 329 dwelling units at the Property in addition to the 358,498 commercial
floor area allowed by the general plan prior to the amendment. The MU-H2 designation
applies to properties located in the Airport Area. It provides for a horizontal intermixing of
uses that may include regional commercial office, multifamily residential, vertical mixed-
use building, industrial, hotel rooms, and ancillary neighborhood commercial uses. As a
result of failing to obtain voter approval in the November 2014 general election, as required
by Charter Section 423, the General Plan Land Use Element amendment was not
approved or implemented; however, City Council Resolution No. 2014-65 certifying the
SEIR remains valid and effective because it was not rescinded by the outcome of the vote
or by action of the City Council.
4. Pursuant to Section 21166 of the California Public Resources Code and Section 15162
of the CEQA Guidelines, when an EIR has been certified for a project, no subsequent
EIR is required unless the lead agency determines, on the basis of substantial evidence
in the light of the whole record, one or more of the following:
a. Substantial changes are proposed in the project which will require major revisions
of the previous EIR due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified significant
effects;
b. Substantial changes occur with respect to the circumstances under which the
project is undertaken which will require major revisions of the previous EIR due
to the involvement of new significant environmental e ffects or a substantial
increase in the severity of previously identified significant effects; or
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Planning Commission Resolution No. PC2020-020
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c. New information of substantial importance, which was not known and could not
have been known with the exercise of reasonable diligence at the time the
previous EIR was certified as complete, shows any of the following:
i. The project will have one or more significant effects not discussed in the
previous EIR;
ii. Significant effects previously examined will be substantially more severe
than shown in the previous EIR;
iii. Mitigation measures or alternatives previously found not to be feasible
would in fact be feasible and would substantially reduce one or more
significant effects of the project, but the project proponents decline to
adopt the mitigation measure or alternative; or
iv. Mitigation measures or alternatives which are considerably different from
those analyzed in the previous EIR would substantially reduce one or more
significant effects on the environment, but the project proponents decline
to adopt the mitigation measure or alternative.
5. The Applicant is proposing to amend the General Plan Land Use Designation from Airport
Office (AO) to Mixed Use Horizontal 2 (MU-H2) and to amend Table LU2 (Anomaly
Locations) to add the Property as Anomaly No. 86; and rezone the Property from OA
(Office Airport) to PC (Newport Airport Village Planned Community). This change will
allow the construction of 329 dwelling units, exclusive of any permitted density bonus,
and 297,572 square feet of commercial uses. The commercial floor area is a reduction
from what the General Plan currently would allow for the Property. The dwelling units
would come from the remaining portion of the 2200 units currently allocated to properties
designated MU-H2 in the Airport Area by the General Plan Land Use Element and the
units would not increase planned residential development in the area. Due to the
similarity between the proposed project and the prior project considered in the PEIR and
SEIR, an Addendum to the EIR was prepared pursuant to Section 15162 (Subsequent
EIRs and Negative Declarations) and 15164 (Addendum to an EIR or Negative
Declaration) of the CEQA Guidelines.
6. The following environmental topics were analyzed for the proposed Project: Aesthetics,
Agriculture and Forestry Resources, Air Quality, Biological Resources, Cultural
Resources, Energy, Geology and Soils, Greenhouse Gas Emissions, Hazards and
Hazardous Materials, Hydrology, Land Use and Planning, Mineral Resources, Noise,
Population and Housing, Public Services, recreation, Transportation, Tribal Cultural
Resources and Utilities and Service Systems. The Addendum includes analysis of new
topics that were not included in the previous EIRs; specifically, it includes a new energy
section and a new wildfire section. These additional analyses are appropriate for inclusion
in the Addendum, but none result in new or increased significant impacts that would require
preparation of a subsequent EIR pursuant to Section 15162 of the CEQA Guidelines.
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7. On the basis of the entire environmental review 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) or the SEIR for the update to the Land Use Element
of the General Plan (SCH No. 2013101064). The potential impacts associated with this
Project would either be the same or less than those described in either the PEIR or SEIR
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 or SEIR,
nor has any new information regarding the potential for new or more severe significant
environmental impacts been identified. Therefore, in accordance with Section 15164 of the
CEQA Guidelines, an addendum to the previously adopted PEIR and SEIR is the
appropriate environmental document for the Project. In taking action to approve any of the
requested applications for the proposed Project, the data presented in the PEIR and SEIR,
as augmented by the Addendum for this Project, are considered as part of the record.
8. The Addendum to the PEIR and SEIR, is hereby recommended for adoption by the City
Council given its analysis and conclusions. The Addendum to the PEIR and SEIR and all
materials, which constitute the record upon which this decision was based, are on file with
the Planning Division, City Hall, 100 Civic Center Drive, Newport Beach, California.
9. The Planning Commission finds that judicial challenges to the City's CEQA determinations
and approvals of land use projects are costly and time consuming. In addition, project
opponents often seek an award of attorneys' fees in such challenges. As project applicants
are the primary beneficiaries of such approvals, it is appropriate that such applicants
should bear the expense of defending against any such judicial challenge, and bear the
responsibility for any costs, attorneys' fees, and damages which may be awarded to a
successful challenger.
SECTION 3. FINDINGS.
I. General Plan Amendment
Amendments to the General Plan are a legislative act. Neither Title 20 (Planning and Zoning)
of the Newport Beach Municipal Code, the Charter of the City of Newport Beach, nor California
Government Code Section 65350 et seq. set forth any required findings for either approval or
denial of amendments to the General Plan. Notwithstanding the foregoing, the proposed
amendments are consistent with the General Plan for the reasons provided hereafter:
1. The request is to amend the General Plan Land Use designation from AO (Airport Office
and Supporting Services) to MU-H2 (Mixed-Use Horizontal 2). According to the General
Plan, “The MU-H2 designation applies to properties located in the Airport Area. It
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.” The PCDP would provide for a combination of
residential development, airport supporting uses, and a variety of commercial land uses
consistent with the description of the MU-H2 land use category.
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2. The GPA does not eliminate existing or future land uses to the overall detriment of the
community given the site’s size, location, and surrounding uses. Designating the
Property to MU-H2 without the development capacity allows the Property to be
developed with residential or mixed-use development consistent with other sites in the
Airport Area.
3. The GPA is consistent with the following General Plan policies (additional policy analysis
is included in the EIR Addendum attached hereto as Exhibit B):
a. Land Use Element Policy LU 1.1 - Unique Environment: Maintain and enhance the
beneficial and unique character of the different neighborhoods, business districts,
and harbor that together identify Newport Beach. Locate and design development to
reflect Newport Beach’s topography, architectural diversity, and view sheds.
The PCDP enhances the distinct, urban character of the Airport Area by providing a
means for replacing parking lots and small-scale commercial structures with
attractive and functional mixed-use development, in line with the General Plan goal
of transitioning the Airport Area to a mixed-use community. The Property is not in or
near any of the City’s areas featuring the harbor, unique topography, or view sheds.
The proposed project would introduce a mix of land uses, including residential units
to the Property consistent with the uses and urbanized character of the JWA area
and the MU-H2 designation.
b. Land Use Element Policy LU 2.3 - Range of Residential Choices: Provide
opportunities for the development of residential units that respond to community and
regional needs in terms of density, size, location, and cost. Implement goals, policies,
programs, and objectives identified within the City’s Housing Element.
c. LU 3.8 Project Entitlement Review with Airport Land Use Commission -. Refer the
adoption or amendment of the General Plan, Zoning Code, specific plans, and
Planned Community development plans for land within the John Wayne Airport
planning area, as established in the JWA Airport Environs Land Use Plan (AELUP),
to the Airport Land Use Commission (ALUC) for Orange County for review, as
required by Section 21676 of the California Public Utilities Code. In addition, refer all
development projects that include buildings with a height greater than 200 feet above
ground level to the ALUC for review.
The project is within the boundaries of the Airport Environs Land Use Plan (AELUP).
The overseeing agency, ALUC, must review the proposed General Plan Amendment
and PCDP pursuant to Government Code §65302.3 and Public Utilities Code
§21676. The purpose of the review is to determine the project’s consistency with the
AELUP prior to the City Council taking action on the proposed project. The residential
units would be limited to a 6.02-acre portion of the 16.46-acre project site that is
subject to noise ranging between 60 dB CNEL and less than 65 dB CNEL and not
located within JWA Safety Zone 3. All residential types are deemed “conditionally
consistent” with nearby aircraft operations by AELUP provided sound attenuation is
provided and notification of future residents and the public is posted. The PCDP
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includes regulations for sound attenuation and the posting of signs in outdoor
common areas and a neighborhood park if developed. The residential portion of the
project is located in JWA Safety Zone 6 and the AELUP allows residential uses in
that zone. The PCDP does not introduce any new noise-sensitive uses that are
inconsistent with AELUP Noise Impact Zones or compatibility qualities of the AELUP
Safety Zones. Despite the project’s consistency with the AELUP, the ALUC may find
the project inconsistent and should they do so, approval of the project would require
the Newport Beach City Council to override this determination with a two -thirds vote.
The PCDP allows for multi-family residential uses, including affordable units, offering
a variety of product types that can respond to market needs and diversify the City’s
housing stock.
d. Land Use Element Policy LU 5.1.1 - Compatible but Diverse Development: Establish
property development regulations for residential projects to create compatible and
high-quality development that contributes to neighborhood character.
The PCDP includes development standards and residential design guidelines to
create a compatible and high-quality development that contributes to the emerging
urban neighborhood character of the Airport Area.
e. Land Use Element Policy LU 5.4.1 - Site Planning: Require that new and renovated
office and retail development projects be planned to exhibit a high -quality and
cohesive “campus environment,” characterized by the following:
• Location of buildings around common plazas, courtyards, walkways, and
open spaces,
• Incorporation of extensive on-site landscaping that emphasizes special
features such as entryways,
• Use of landscape and open spaces to break the visual continuity of surface
parking lots,
• Common signage program for tenant identification and wayfinding,
• Common streetscapes and lighting to promote pedestrian activity,
• Readily observable site access, entrance drives and building entries and
minimized conflict between service vehicles, private automobiles, and
pedestrians.
The development of the Planned Community will result in high quality, cohesive
development based upon the PCDP regulations. Pedestrian and bicycle connections
are required between the residential areas and non-residential areas, primary access
to the residential buildings will face a public right-of-way or central courtyard, and
signs will be reviewed to ensure compatibility with the development.
f. LU 6.15.1. Land Use Districts and Neighborhoods. Provide for the development of
distinct business park, commercial, and airport-serving districts and residential
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neighborhoods that are integrated to ensure a quality environment and compatible
land uses.
High quality, integrated development, including mixed use, residential, office, and
retail uses, is addressed through the Land Use and Development Regulations
(Section II), Architectural Design Considerations (Section III), and Residential Design
Guidelines (Section IV) sections of the PCDP provide a comprehensive set of
standards and guidelines to implement this policy.
g. LU 6.15.2. Underperforming Land Uses. Promote the redevelopment of sites with
underperforming retail uses located on parcels at the interior of large blocks for other
uses, with retail clustered along major arterials (e.g., Bristol, Campus, MacArthur,
and Jamboree), except where intended to serve and be integrated with new
residential development.
The PCDP facilitates the reuse of underperforming properties by allowing the
addition of mixed-use and residential use. Land Use and Development Regulations
(Section II), Architectural Design Considerations (Section III), and Residential Design
Guidelines (Section IV) provide a comprehensive set of standards and guidelines to
promote high-quality new development.
h. LU 6.15.3. Airport Compatibility. Require that all development be constructed in
conformance with the height restrictions set forth by Federal Aviation Ad ministration
(FAA), Federal Aviation Regulations (FAR) Part 77, and Caltrans Division of
Aeronautics, and that residential development be located outside of the 65 dBA
CNEL noise contour specified by the 1985 JWA Master Plan.
The Project would be constructed in conformance with the FAA’s height restrictions,
and all residential development would be located outside the 65 dBA CNEL noise
contour and outside the boundaries of Safety Zone 3 where high density residential
development is not allowed. The Applicant has received a determination of no hazard
to aviation with development up to 85 feet in height from the FAA.
i. LU 6.15.4 Priority Uses. Accommodate office, research and development, and
similar uses that support the primary office and business park functions such as retail
and financial services, as prescribed for the “CO-G” designation, while allowing for
the re-use of properties for the development of cohesive residential villages that are
integrated with business park uses.
Office and commercial uses would be compatible with residential uses in accordance
with the Land Use and Development Regulations (Section II) and Architectural
Design Considerations (Section III) of the PCDP. Residential uses would support
local retail, restaurants, and services. The PCDP design and connectivity
requirements would integrate residential and non-residential uses and ensure
adequate circulation and parking within the PC District.
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j. LU 6.15.5 Residential and Supporting Uses. Accommodate the development of a
maximum of 2,200 multi-family residential units, including work force housing, and
mixed-use buildings that integrate residential with ground level office or retail uses,
along with supporting retail, grocery stores, and parklands. Residential units may be
developed only as the replacement of underlying permitted nonresidential uses.
When a development phase includes a mix of residential and nonresidential uses or
replaces existing industrial uses, the number of peak hour trips generated by
cumulative development of the site shall not exceed the number of trips that would
result from development of the underlying permitted nonresidential uses. However,
a maximum of 550 units may be developed as infill on surface parking lots or areas
not used as occupiable buildings on properties within the Conceptual Development
Plan Area depicted on Figure LU22 provided that the parking is replaced on site.
The GPA and PCDP provides development capacity and standards for mixed -use
development. The proposed development limit is 329 dwelling units (plus up 115
density bonus when affordable housing is provided) and 297,572 square feet for
commercial development. The Property is not located within the Conceptual
Development Plan Area depicted on Figure LU22, and therefore, any residential
units allocated to the site are not any portion of the 550 infill units allocated to the
Conceptual Development Plan Area As described in Chapter 3 of the Addendum,
the Project’s residential uses would replace some of the permitted underlying
commercial development capacity. Specifically, the 329 units would replace 60,926
square feet of permitted retail commercial uses using the City-approved Airport Area
Residential and Mixed-Use Adjustment factors prepared by the City Traffic Engineer
to ensure that the number of peak hour trips generated by the redevelopment of the
Property would not exceed the number of trips attributable to the existing permitted
non-residential uses. Any density bonus units, up to 115 units in this case are above
and beyond what the General Plan allocates in accordance with Chapter 20.32
(Density Bonus) of the Newport Beach Municipal Code and State law.
Two (2) projects have been approved within the Airport Area to date. Uptown
Newport was approved for 632 replacement units, 290 additive units, and with a
density bonus of 322 units for a total of 1,244 residential units. Newport Crossings
was approved for 259 replacement units and 91 density bonus units. Therefore , the
total remaining number of replacement units is 759 units and the 329 units requested
by the applicant would not exceed the remaining units to be allocated pursuant to
this policy. If approved, 430 replacement dwelling units would be available for other
MU-H2 (Mixed-Use Horizontal 2) designated properties in the Airport Area.
k. LU 6.15.6. Size of Residential Villages. Allow development of mixed -use residential
villages, each containing a minimum of 10 acres and centered on a neighborhood
park and other amenities (as conceptually illustrated in Figure LU23). The first phase
of residential development in each village shall encompass at least 5 gross acres of
land, exclusive of existing rights-of-way. This acreage may include multiple parcels
provided that they are contiguous or face one another across an existing street. At
the discretion of the City, this acreage may also include part of a contiguous property
in a different land use category, if the City finds that a sufficient portion of the
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contiguous property is used to provide functionally proxi mate parking, open space,
or other amenity. The “Conceptual Development Plan” area shown on Figure LU22
shall be exempt from the 5-acre minimum, but a conceptual development plan
described in Policy LU 6.15.11 shall be required.
The Property is 16.46 acres in total area and does not include a centered public park.
The Property is not identified on Figure LU22 or Figure LU23. The first phase,
Planning Area 1, allows residential and mixed -use development is 7.14 acres and
would be developed in one phase. The remaining area would be developed in
subsequent phases after existing commercial leases expire. The Applicant requests
the City Council waive the park dedication requirement pursuant to Policy LU 6.15.13
and instead, pay the park in-lieu fee. If the City Council waives the dedication
requirement, the proposed project is consistent with this policy.
l. LU 6.15.7. Overall Density and Housing Types. Require that residential units be
developed at a minimum density of 30 units and maximum of 50 units per net acre
averaged over the total area of each residential village. Net acreage shall be
exclusive of existing and new rights-of-way, public pedestrian ways, and
neighborhood parks. Within these densities, provide for the development of a mix of
building types ranging from townhomes to high-rises to accommodate a variety of
household types and incomes and to promote a diversity of building masses and
scales.
The residential component of the Project is 329 units (without density bonus units)
within the 16.46-acre residential village and the density is about 20 du/ac and below
the minimum 30 du/ac standard. If the density bonus units were included, the result
would be about 27 du/ac. To comply, additional units would need to be included and
required to be replacement units pursuant to Policy LU 6.15.5, meaning the
additional units would come at the expense of underlying permitted non -residential
uses. The 16.46-acre Property is partially constrained by the JWA 65 dBA CNEL
noise contour and all residential use is inconsistent in this high noise area. The
Property is also partially constrained by JWA Safety Zones 3 that limits residential
uses to very low densities if not deemed unacceptable because of noise. Planning
Area 1 is 7.14 acres and the area outside both the 65 dBA CNEL noise contour and
Safety Zone 3 where residential use would be allowed consistent with the Airport
Environs Land Use Plan for JWA is further limited to 6.02 acres. To comp ly with the
Policy LU 6.15.7, 493 units would need to be constructed on 6.02 acres resulting in
a density of 81.9 du/ac units per acre without including potential density bonus units
which would exceed the maximum allowable density. However, California
Government Code Section 65915(e)(1) prohibits a City from applying a development
standard that will have the effect of physically precluding the construction of a
development for projects that propose a density bonus. Waiver of height standards,
number of stories and setbacks to accommodate project amenities such as an
interior courtyard, community plaza and high ceilings have been interpreted as
physical constraints that warrant waiver under Section 65915(e)(1). Wollmer v. City
of Berkeley, (2011) 193 Cal. App. 4th 1329. With the waiver of LU 6.15.7 pursuant
to Government Code §65915(e)(1), the 30-50 du/acre over the total area of each
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residential village would not be required. However, the Project would create a 46
du/acre development not including the density bonus units in Planning Area 1 which
is within the density range of the Policy LU 6.15.7.
m. LU 6.15.8. First Phase Development Density. Require a residential density of 45 to
50 units per net acre, averaged over the first phase for each residential village. This
shall be applied to 100 percent of properties in the first phase development area
whether developed exclusively for residential or integrating service commercial
horizontally on the site or vertically within a mixed -use building. On individual sites,
housing development may exceed or be below this density to encourage a mix of
housing types, provided that the average density for the area encompassed by the
first phase is achieved.
The PCDP is divided into two (2) planning areas. Planning Area 1 allows residential
and mixed-use development and is 7.14 acres. Three hundred twenty-nine dwelling
units constructed over 7.14 acres results in a density of 46 du/acre which is
consistent with LU 6.15.8. Planning Area 2 allows commercial development only and
is 9.32 acres.
n. LU 6.15.9 Subsequent Phase Development Location and Density. Subsequent
phases of residential development shall abut the first phase or shall face the first
phase across a street. The minimum density of residential d evelopment (including
residential mixed-use development) shall be 30 units per net acre and shall not
exceed the maximum of 50 units per net acre averaged over the development phase.
The residential component of the PCDP in Planning Area 1 would be develo ped in
one phase and checked for consistency with this requirement. Planning Area 2 only
includes non-residential development. Therefore, there would be no subsequent
phases of residential development.
o. LU 6.15.12. Development Agreements. A Development Agreement shall be required
for all projects that include infill residential units. The Development Agreement shall
define the improvements and public benefits to be provided by the developer in
exchange for the City’s commitment for the number, density, and location of the
housing units.
The proposed project includes a development agreement which will be implemented
through the PCDP.
p. LU 6.15.13 Neighborhood Parks Standards. To provide a focus and identity for the
entire neighborhood and to serve the daily recreational and commercial needs of the
community within easy walking distance of homes, require dedication and
improvement of at least 8 percent of the gross land area (exclusive of existing rights-
of-way) of the first phase development in each neighborhood, or ½ acre, whichever
is greater, as a neighborhood park. This requirement may be waived by the City
where it can be demonstrated that the development parcels are too small to feasibly
accommodate the park or inappropriately located to serve the needs of local
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Planning Commission Resolution No. PC2020-020
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residents, and when an in-lieu fee is paid to the City for the acquisition and
improvement of other properties as parklands to serve the Airport Area.
In every case, the neighborhood park shall be at least 8 percent of the total
Residential Village Area or one acre in area, whichever is greater, and shall have a
minimum dimension of 150 feet. Park acreage shall be exclusive of existing or new
rights-of-way, development sites, or setback areas. A neighborhood park shall satisfy
some or all of the requirements of the Park Dedication Ordinance, as prescribed by
the Recreation Element of the General Plan.
No park is proposed, and the Applicant asks the City Council to waive the
requirement. The Applicant believes the location proximate to John Wayne Airport is
inappropriate to serve the needs of the area and they have agreed to pay an in -lieu
fee consistent with this policy. A significant portion of the Property is impacted by
high noise levels and within JWA Safety Zone 3 and locating a park in such areas
may not be appropriate or desirable. Additionally, predominant uses in Planning Area
2 are vehicle storage lots for car rental agencies operating with long-term leases. Air
quality in the area and the limited residential density planned for the Airport Area are
also factors suggesting a new public park within the Property may not be desirable.
If the park dedication was required, the best potential location would be within
Planning Area 1 outside the 65 dBA noise contour and JWA Safety Zone 3 further
reducing the available land for residential or mixed -use development. In this
scenario, a 1-acre dedication of 6.02 acres of relatively unconstrained land is a
significant percentage of the area potentially available for residential use. If the
dedication were required in conjunction with the first phase density bonus
development, the cost of the dedication could render the density bonus fina ncially
infeasible. These or other potential factors could provide sufficient grounds for the
City Council to waive the dedication requirement. If the City Council chooses not to
waive the parkland dedication requirement, development of the future park would be
required in accordance with this policy. With either outcome the City Council
chooses, neighborhood park dedication or waiver, the Project is consistent with LU
6.15.13.
q. LU 6.15.14 Location. Require that each neighborhood park is clearly public in
character and is accessible to all residents of the neighborhood. Each park shall be
surrounded by public streets on at least two sides (preferably with on -street parking
to serve the park), and shall be linked to residential uses in its respective
neighborhood by streets or pedestrian ways.
No public park is proposed, and the Applicant askes the City Council to waive the
neighborhood park dedication requirement pursuant to Policy 6.15.13 and, instead,
pay an in-lieu fee. If the City Council acts to waive the park dedication, this policy
would not apply. If the City Council chooses not to waive the parkland dedication,
development of the future park would be posted as a public park in accordance with
this policy.
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r. LU 6.15.15. Aircraft Notification. Require that all neighborhood parks be posted with
a notification to users regarding proximity to John Wayne Airport and aircraft
overflight and noise.
The Project would comply with notification requirements related to aircraft overflight
and noise if parks are developed.
s. LU 6.15.16 On-Site Recreation and Open Space Standards. Require developers of
multi-family residential developments on parcels 8 acres or larger to provide on -site
recreational amenities. For these developments, 44 square feet of on-site
recreational amenities shall be provided for each dwelling unit in addition to the
requirements under the City’s Park Dedication Ordinance and in accordance with the
Parks and Recreation Element of the General Plan. On-site recreational amenities
can consist of public urban plazas or squares where there is the capability for
recreation and outdoor activity. These recreational amenities may also include
swimming pools, exercise facilities, tennis courts, and basketball courts. Where there
is insufficient land to provide on-site recreational amenities, the developer shall be
required to pay cash in-lieu that would be used to develop or upgrade nearby
recreation facilities to offset user demand as defined in the City’s Park Dedication
Fee Ordinance.
The acreage of on-site open space developed with residential projects may be
credited against the parkland dedication requirements where it is accessible to the
public during daylight hours, visible from public rights-of-way, and is of sufficient size
to accommodate recreational use by the public. However, the credit for the provision
of on-site open space shall not exceed 30 percent of the parkland dedication
requirements.
Section II of the PCDP requires 75 square feet of common open space per dwelling
unit in a future residential or mixed-use project and it exceeds the minimum standard.
Separate from the City’s park dedication and/or in -lieu requirement under the
General Plan, Chapter 19.52 (Park Dedications and Fees) of the NBMC also require
park dedication and/or in-lieu fees in accordance with California Government Code
Section 66477 et seq. also referred to as the Quimby Act. However, Chapter 19.52
only applies to subdivisions or condominiums. While the Applicant plans the
construction of apartments that would not generate a park dedication requirement,
condominium development would be allowed by the PCDP. Should a condominium
project be proposed, it would be subject to NBMC Chapter 19.52. Should a future
residential development include publicly accessible open space that meets the policy
criteria, the Applicant could request a credit toward parkland dedication requirements
(if any). Please refer to the discussion of Policy LU 6.15.13 for additional analysis
regarding park dedication requirements.
t. LU 6.15.17 Street and Pedestrian Grid. Create a pattern of streets and pedestrian
ways that breaks up large blocks, improves connections between neighborhoods
and community amenities, and is scaled to the predominantly resid ential character
of the neighborhoods.
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Any new streets and pedestrian ways in the PC District would be designed to break
up large blocks, improve connections and links between uses and be scaled to the
residential component of the PC District in Planning Area 1, as described in the Land
Use and Development Regulations (Section II) and Architectural Design
Considerations (Section III), of the PCDP. The City would confirm compliance during
future Site Development Review process.
u. LU 6.15.21 Required Spaces for Primary Uses. Consider revised parking
requirements that reflect the mix of uses in the neighborhoods and overall Airport
Area, as well as the availability of on-street parking.
Future development will be required to comply with City of Newport Beach Municipal
Code parking requirements, including Section 20.32.040 of the Newport Beach
Municipal Code for a density bonus project. The City will confirm compliance with
these standards during Site Development Review.
4. City Council Policy A-18 requires that proposed GPAs be reviewed to determine if a vote
of the electorate would be required pursuant to Section 423 of the City Charter. If a GPA
(separately or cumulatively with other GPAs within the previous ten (10) years)
generates more than one hundred (100) peak hour trips (a.m. or p.m.), adds forty
thousand (40,000) square feet of nonresidential floor area, or adds more than one
hundred (100) dwelling units in a statistical area, a vote of the electorate would be
required if the City Council approves the GPA.
a. The Property is located in Statistical Area L4. The GPA would change the land use
designation only and not result in an increase in development. The 329 dwelling units
requested are already included in the MU-H2 development capacity of 2,200 dwelling
units and no increase in allowed floor area is proposed. Consequently, there is no
increase in a.m. or p.m. peak hour trips pursuant to the Institute of Transportation
Engineers (“ITE”) trip rates included as Exhibit B of City Council Policy A -18. As a
result, the amendment is not classified as a major amendment requiring a vote of the
electorate should the City Council choose to approve the GPA.
5. Pursuant to California Government Code Section 65352.3 (SB18), a local government
is required to contact the appropriate tribes identified by the Native American Heritage
Commission (“NAHC”) each time it considers a proposal to adopt or amend the General
Plan. If requested by any tribe, the local government must consult for the purpose of
preserving or mitigating impacts to cultural resources. The City received comments from
the NAHC indicating that four (4) tribal contacts should be provided notice regarding the
GPA. The tribal contacts were provided notice on April 29, 2020. California Government
Code Section 65352.3 requires notification 90 days prior to Council action to allow trib al
contacts to respond to the request to consult. The City was not contacted by any tribal
contacts to date. SB 18 requires tribal consultation to be closed prior to the approv al of
the general plan amendment. Accordingly, consultation must be closed prior to City
Council action on the GPA.
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II. Zoning Code Amendment and Planned Community Development Plan
Amendments to Title 20 (Planning and Zoning) of the NBMC are legislative acts. Neither
Chapters 20.66 (Amendments) and 20.56 (Planned Community Development District
Procedures) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code, the
Charter of the City of Newport Beach, nor Article 2 (Adoption of Regulations) of Chapter 4
(Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of
the California Government Code set forth any required findings for either approval or de nial of
amendments to the Municipal Code. Nevertheless, rezoning the Property to PC-60 is
consistent with the purpose of Planned Community Districts as specified in NBMC Section
20.56.010 for the following reasons:
1. PC-60 provides for the classification and development of 16.46 acres developed land.
Permitted and conditionally permitted uses include residential, commercial, and airport
supporting uses have been classified. Furthermore, development and use standards
have been included in the PC to ensure future use of the Property does not impact the
surrounding area.
2. In order to allow the diversification of uses, the PC-60 provides two planning areas;
Planning Area 1 allows residential and mixed-use development, while Planning Area 2
allows nonresidential development. This allows future development of the PC to be
consistent with the goals and policies of the MU-H2 land use designation horizontal
mixed-use standards. To ensure the two planning areas relate to each other and can be
integrated, the PC-60 requires internal pedestrian and bicycle connection.
3. The future development of the Property affected by the proposed amendments will be
consistent with the goals and policies of the Land Use Element of the General Plan; and
will be consistent with the purpose and intent of the PC-60 Development Plan.
III. Development Agreement
Development Agreement No. DA2014-003 satisfies the requirements of Chapter 15.45
(Development Agreements) of the NBMC as provided hereafter:
1. A development agreement is requested by the Applicant, as the Project would add more
than 50 dwelling units within Statistical Area L4 (Airport Area). The development
agreement includes all the mandatory elements including a term of 15 years for the
residential portion of the proposed project and 20 years for the commercial portion and
public benefits that are appropriate to support conveying the vested development rights
consistent with the General Plan, NBMC, and Government Code Sections 65864 et seq.
2. Public benefits include the payment of a $1,000,000 public safety fee to satisfy any
obligation the Project could have to provide new emergency response services or Fire
Department equipment to serve the Airport Area whether a Community Facilities District
is formed or not. The applicant has also agreed to pay a separate public benefit fee to
be used by the City Council as it deems appropriate.
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Planning Commission Resolution No. PC2020-020
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City hereby recommends the City Council of the City
adopt Environmental Impact Report Addendum No. ER2020-002 to the 2006 General
Plan Update (SCH No. 2006011119) and the 2014 Land Use Element Amendment (SCH
No. 2013101064) Environmental Impact Reports, as depicted in Exhibit “B.”
2. The Planning Commission of the City hereby recommends the City Council of the City
approve General Plan Amendment No. GP2014-004 as depicted in Exhibit “C,” to
change the Land Use Designation of the Property from AO (Airport Office and Supporting
Uses) to MU-H2 (Mixed-Use Horizontal 2 and to amend Table LU2 (Anomaly Locations)
to add a portion of the Property as an anomaly to allow for the development of 329
dwelling units, exclusive of any permitted density bonus.
3. The Planning Commission hereby recommends the granting of a waiver of the
neighborhood park dedication requirement pursuant to General Plan Policy LU 6.15.13
as a public park within the project site would be inappropriately located due to the
proximity with John Wayne Airport.
4. The Planning Commission of the City hereby recommends the City Council of the City
approve Zoning Code Amendment No. CA2014-009, to rezone the Property from OA
(Office Airport) to PC-60 (Newport Airport Village Planned Community), as depicted in
Exhibit “D.”
5. The Planning Commission of the City hereby recommends the City Council of the City
approve Planned Community Development Plan No. PC2020-002 (Zoning) as depicted
in Exhibit “E” to set the permitted uses, development standards, and design guidelines
for the Property.
6. The Planning Commission hereby recommends the granting of a waiver of the density
standards provided in General Plan Policy LU 6.15.7 pursuant to Government Code
§65915(e)(1) as it would make a density bonus project infeasible.
7. The Planning Commission of the City hereby recommends the City Council of the City
approve Development Agreement No. DA2014-003, as set forth in Exhibit “F.”
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Planning Commission Resolution No. PC2020-020
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PASSED, APPROVED, AND ADOPTED THIS 4th DAY OF JUNE, 2020.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:_________________________
Peter Koetting, Chairman
BY:_________________________
Lee Lowrey, Secretary
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Planning Commission Resolution No. PC2020-020
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EXHIBIT “A”
Legal Description
42
1
NAV TITLE REPORTS
ADDRESS APN LEGAL DESCRIPTION
4361 Birch Street,
Newport Beach CA
427-121-23 THE LAND REFERRED TO HEREIN BELOW IS SITUATED NEWPORT BEACH IN THE COUNTY OF
ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOTS 7, 8, 9 AND 10 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 190, PAGES 11, 12 AND 13 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
SAID LAND IS ALSO SHOWN AS PARCEL 1 ON LOT LINE ADJUSTMENT 93-5, RECORDED
DECEMBER 8, 1993 AS INSTRUMENT NO. 93-0854901, OFFICIAL RECORDS.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, AND OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND, AS RESERVED IN THE GRANT DEED RECORDED APRIL 9, 1993 AS
INSTRUMENT NO. 93-0237996 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR
OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
43
2
ADDRESS APN LEGAL DESCRIPTION
CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE GRANT DEED RECORDED APRIL
9, 1993 AS INSTRUMENT NO. 93-0237996, OFFICIAL RECORDS.
4540 Campus Drive
Newport Beach, CA
427-111-03 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 18 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 190, PAGES 11 THROUGH 13, INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS,
AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY
OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER,
THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE
IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED JUNE 30, 1992 AS INSTRUMENT NO.
92-440215 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE, AND STORE THE SAME FROM THE LAND OR TO DIVERT OR
OTHERWISE UTILIZE SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING,
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE
44
3
ADDRESS APN LEGAL DESCRIPTION
COMPANY, A MICHIGAN CORPORATION, RECORDED JUNE 30, 1992 AS INSTRUMENT NO. 92 -440215
OF OFFICIAL RECORDS.
PARCEL 2:
AN EASEMENT FOR DRIVEWAY PURPOSES OVER THE WESTERLY 12 FEET OF THE NORTHERLY 60
FEET OF LOT 17 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 190, PAGES 11 THROUGH 13,
INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AS SET
FORTH IN THAT CERTAIN DECLARATION OF ACCESS EASEMENT, RECORDED JUNE 30, 1992 AS
INSTRUMENT NO. 92-440213 OF OFFICIAL RECORDS, UPON THE TERMS AND CONDITIONS AS
THEREIN PROVIDED
4340 Campus Drive
Newport Beach, CA
427-121-07 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 29 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH, CO UNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 130, PAGES 25 TO 30 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND, AS RESERVED BY THE IRVINE COMPANY IN DEED RECORDED
FEBRUARY 4, 1994 AS INSTRUMENT NO. 94-0085581 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
45
4
ADDRESS APN LEGAL DESCRIPTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR
OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING,
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
LAND IN THE EXERCISE OF SUCH RIGHTS AS RESERVED IN THE DEED RECORDED FEBRUARY 4,
1994 AS INSTRUMENT NO. 94-0085581 OF OFFICIAL RECORDS
4400 Campus Drive
Newport Beach, CA
427-121-09 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 31 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 130, PAGE(S) 25 THROUGH 30, INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH T HE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND, AS RESERVED BY THE IRVINE COMPANY IN DEED RECORDED
DECEMBER 20, 1991 AS INSTRUMENT NO. 91-702340, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR
OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING,
46
5
ADDRESS APN LEGAL DESCRIPTION
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
LAND IN THE EXERCISE OF SUCH RIGHTS AS RESERVED IN THE DEED RECORDED DECEMBER 20,
1991 AS INSTRUMENT NO. 91-702340, OF OFFICIAL RECORDS
4570 Campus Drive
Newport Beach, CA
427-111-04 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 17 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 190, PAGES 11 THROUGH 13, INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAND COUNTY.
EXCEPTING THEREFROM ALL MINERALS, OIL, GAS, PETROLEUM, OTHER HYDROCARBON
SUBSTANCES AND ALL UNDERGROUND WATER IN OR UNDER OR WHICH MAY BE PRODUCED
FROM SAID LAND WHICH UNDERLIES A PLANE PARALLEL TO AND 500 FEET FROM THE PRESENT
SURFACE OF SAID LAND FOR THE PURPOSE OF PROSPECTING FOR, THE EXPLORATION,
DEVELOPMENT, PRODUCTION, EXTRACTION AND TAKING OF SAID MINERALS, OIL, GAS,
PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND WATER FROM SAID LAND BY MEANS
OF MINES, WELLS, DERRICKS, OTHER EQUIPMENT FROM SURFACE LOCATIONS ON ADJOINING
OR NEIGHBORING LAND OR LYING OUTSIDE OF THE ABOVE DESCRIBED LAND, IT BEING
UNDERSTOOD THAT THE OWNER OF SUCH MINERALS, OIL GAS, PETROLEUM, OTHER
HYDROCARBON SUBSTANCES AND WATER AS SET FORTH ABOVE, SHALL HAVE NO RIGHT TO
ENTER UPON THE SAID LAND OR ANY PORTION THEREOF ABOVE SAID PLANE PARALLEL TO
AND 500 FEET BELOW THE PRESENT SURFACE OF TI EE SAID LAND FOR ANY PURPOSE
WHATSOEVER.
AS RESERVED BY THE IRVINE COMPANY, A MICHIGAN CORPORATION IN THE DEED RECORDED
FEBRUARY 19, 1993 AS INSTRUMENT NO. 93-107963 OF OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED
“DECLARATION OF ACCESS EASEMENTS (MACARTHUR/CAMPUS)” DATED JANUARY 30, 1992 AND
RECORDED FEBRUARY 20, 1992 AS INSTRUMENT NO. 92-101692 AS AMENDED AND RESTATED IN
AN INSTRUMENT RECORDED APRIL 16, 1992 AS INSTRUMENT NO. 92-247260, BOTH OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA.
47
6
ADDRESS APN LEGAL DESCRIPTION
PARCEL 3:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED
“DECLARATION OF ACCESS EASEMENT. DATED JUNE 17, 1992, AND RECORDED JUNE 30, 1992 AS
INSTRUMENT NO. 92- 440213 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
4341 Birch Street
Newport Beach CA
427-121-14 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 6 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 190, PAGES 11, 12 AND 13 OF
MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS
AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY
OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER,
THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE
IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED DECEMBER 31, 1991 AS INSTRUMENT
NO. 91-720058 OF OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO MATTER HOW
ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH
RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL,
REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR,
WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL,
PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL; BUT WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH
48
7
ADDRESS APN LEGAL DESCRIPTION
RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION,
RECORDED DECEMBER 31, 1991 AS INSTRUMENT NO. 91-720058 OF OFFICIAL RECORDS. APN: 427-
121-14
4500 and 4520 Campus
Drive
Newport Beach, CA
427-111-01,
427-111-02
and 427-121-
10
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS
SHOWN ON A MAP FILED IN BOOK 60, PAGE 22 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
4600 Campus Drive
Newport Beach, CA
427-111-05 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 16 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 190, PAGES 11 TO 13 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM, ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM AND OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE ON THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED BY THE IRVINE COMPANY, RECORDED
FEBRUARY 19, 1993 AS INSTRUMENT NO. 93-107971, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR AND OWNED OR USED BY GRANTOR IN CONNECTION
49
8
ADDRESS APN LEGAL DESCRIPTION
WITH OR WITH RESPECT TO THE LAND TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR
OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED BY GRANTOR WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING,
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED BY THE IRVINE
COMPANY, RECORDED FEBRUARY 19, 1993 AS INSTRUMENT NO. 93 -107971, OFFICIAL RECORDS.
PARCEL 2:
NONEXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED
“AMENDED AND RESTATED OR ACCESS EASEMENTS (MACARTHUR/CAMPUS)”, DATED MARCH
25, 1992, RECORDED APRIL 16, 1992 AS INSTRUMENT NO. 92-247260, IN THE OFFICIAL RECORDS OF
ORANGE COUNTY, CALIFORNIA.
4360 Campus Drive
Newport Beach, CA
427-121-08 THE LAND REFERRED TO HEREIN BELO W IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 30 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 130, PAGES 25, 26, 27, 28, 29 AND 30 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY CALIFORNIA.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS,
AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY
OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER,
THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE
IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 15, 1994 AS INSTRUMENT
NO. 94-0179376, OFFICIAL RECORDS.
50
9
ADDRESS APN LEGAL DESCRIPTION
ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO MATTER HOW
ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH
RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL,
REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR,
WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL,
PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL; BUT WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH
RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION,
RECORDED MARCH 15, 1994 AS INSTRUMENT NO. 94-0179376, OFFICIAL RECORDS.
4501 Birch Street
Newport Beach, CA
427-111-10 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 12 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 190. PAGES 11 TO 13 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS,
AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY
OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR. ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER,
THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE
IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED JANUARY 10, 1992 AS INSTRUMENT
NO. 92-015047, OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO MATTER HOW
51
10
ADDRESS APN LEGAL DESCRIPTION
ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH
RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL,
REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR,
WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL,
PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL; BUT WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH
RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION,
RECORDED JANUARY 10, 1992 AS INSTRUMENT NO. 92-015047, OFFICIAL RECORDS.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER THAT PORTION OF LOT 13 OF
TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 190, PAGES 11 TO 13 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID LOT; THENCE NORTH 29° 52' 01 ” WEST
327.33 FEET TO THE MOST WESTERLY CORNER OF SAID LOT; THENCE NORTH 52° 01' 58 ” EAST
24.24 FEET ALONG THE NORTHWESTERLY LINE OF SAID LOT TO THE NORTHWESTERLY
PROLONGATION OF A LINE PARALLEL WITH AND NORTHEASTERLY 24.00 FEET FROM THE
SOUTHWESTERLY LINE OF SAID LOT; THENCE SOUTH 29° 52' 10” EAST 331.81 FEET ALONG SAID
PROLONGATION, SAID PARALLEL LINE AND THE SOUTHERLY PROLONGATION THEREOF TO A
POINT ON A CURVE IN THE SOUTHERLY LINE OF SAID LOT, SAID CURVE BEING CONCAVE
SOUTHERLY, HAVING A RADIUS OF 272.00 FEET, A RADIAL TO SAID POINT BEARS NORTH 24° 48'
17” WEST; THENCE WESTERLY 24.03 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
5° 03' 44” OF THE POINT OF BEGINNING.
4630 Campus Drive
Newport Beach, CA
427-111-06 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 15 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 190, PAGES 11 TO 13 OF MISCELLANEOUS MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
52
11
ADDRESS APN LEGAL DESCRIPTION
EXCEPTING THEREFROM, ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELLS OR MINES; WITHOUT HOWEVER, THE RIGHT TO DRILL MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER 500 FEET OF THE SUBSURFACE
OF THE LAND, AS RESERVED IN THE DEED BY THE IRVINE COMPANY RECORDED FEBRUARY 19,
1993 AS INSTRUMENT NO. 93-107967, OFFICIAL RECORDS.
PARCEL 2:
NONEXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED “AM
ENDED AND RESTATED DECLARATION OF ACCESS EASEMENTS (MACARTHUR/CAMPUS) DATED
MARCH 25, 1992 RECORDED APRIL 16, 1992 AS INSTRUMENT NO. 92-247260, IN THE OFFICE
RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 3:
NONEXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED “
RECIPROCAL EASEMENT AGREEMENT AND CONSENT” DATED OCTOBER 14, 1999 RECORDED
NOVEMBER 19, 1999 AS INSTRUMENT NO. 19990805278, AND AMENDED BY THE CERTAIN
DOCUMENT ENTITLED “WAIVER AND AMENDMENT TO RECIPROCAL EASEMENT AGREEMENT”
DATED AUGUST 24, 2015 RECORDED AUGUST 28, 2015 AS INSTRUMENT NO. 2015000446662 IN THE
OFFICE RECORDS OF ORANGE COUNTY, CALIFORNIA.
4525, 4533 and 4647
MacArthur Boulevard
Newport Beach, CA
427-111-09 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
53
12
ADDRESS APN LEGAL DESCRIPTION
LOT 13 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 190, PAGE(S) 11 TO 13 INCLUSIVE, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM,
AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR
UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING
AND OPERATING THEREFORE AND STORING IN AND REMOVING THE SAME FROM THE LAND OR
ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND
MINE FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS
AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM
SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER,
THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE
IRVINE COMPANY, A MICHIGAN CORPORATION RECORDED APRIL 16, 1992.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR
OTHERWISE UTILIZE SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING,
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL, BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN DEED FROM THE IRVINE COMPANY,
A MICHIGAN CORPORATION RECORDED APRIL 16, 1992.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED
“DECLARATION OF ACCESS EASEMENTS (MACARTHUR/CAMPUS)” DATED JANUARY 30, 1992 AND
RECORDED FEBRUARY 20, 1992 AS INSTRUMENT NO. 92-101692, OFFICIAL RECORDS AND
AMENDED BY DOCUMENT RECORDED APRIL 16, 1992 AS INSTRUMENT NO. 92-247260, OFFICIAL
RECORDS, IN THE OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
54
13
ADDRESS APN LEGAL DESCRIPTION
PARCEL 3:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN INSTRUMENT ENTITLED
“DECLARATION OF ACCESS EASEMENTS (BIRCH/MACARTHUR)” DATED JANUARY 30, 1992 AND
RECORDED FEBRUARY 20, 1992 AS INSTRUMENT NO. 92-101691 OFFICIAL RECORDS AND
AMENDED BY DOCUMENT RECORDED APRIL 16, 1992 AS INSTRUMENT NO. 92-247259 OFFICIAL
RECORDS IN THE OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
4320 Campus Drive
Newport Beach, CA
427-121-06 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE
COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 28 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 130, PAGES 25 THROUGH 30, INCLUSIVE
OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND, AS RESERVED BY THE IRVINE COMPANY, A MICHIGAN
CORPORATION, BY DEED RECORDED MAY 6, 1994 AS INSTRUMENT NO. 94-317183 OF OFFICIAL
RECORDS.
55
Planning Commission Resolution No. PC2020-020
Page 19 of 24
EXHIBIT “B”
Addendum to the
General Plan Update (SCH No. 2006011119)
and the
2014 Land Use Element Amendment (SCH No. 2013101064)
Environmental Impact Reports
Available separately due to bulk at:
www.newportbeachca.gov/ceqa
Then look for the link for Newport Airport Village Addendum (PA2014-225)
56
Planning Commission Resolution No. PC2020-020
Page 20 of 24
EXHIBIT “C”
General Plan Amendment
57
Land Use Change: Airport Office and Supporting Uses (AO) toMixed-Use Horizontal 2 (MU-H2) andAdd Anomaly 86 (329 dwelling units and 297,572 commercial sq ft)for parcels in outlined area.
AO
AO
MU-H2
MU-H2
MU-H2
MU-H2
MU-H2
AO
CO-G
CO-G
CO-G
CO-G
MU-H2
MU-H2
CG
CG
CG
MU-H2
CG
PF
RS-D
CG
CG
CO-G
CO-G
AO
!86
MU-H2AO
CAP
I
T
A
N
C
T
ZEN
I
T
H
A
V
E
CORINTHIAN W A Y
SPRUCE AVEBOWSPRIT DR
HAL
F
D
O
M
E
P
L UPTOWNNEW PORTDRTELLER AVEMARTINMARTINGALE WAYSCOTT DRSPRUCE STORCHID STNEWPORT PLACE DR
QU
A
I
L
S
T
DO
V
E
S
T
CYPRESS STD
O
V
E
S
T
MACARTHURCT
QU
A
I
L
S
T
FAIRCHILD RDWESTERLY PLBRIS
T
O
L
S
T
N
BRIS
T
O
L
S
T
CA
M
P
U
S
D
R
BIR
C
H
S
T
BRIS
T
O
L
S
T
NBIRCH STVON KARMAN AVECAMPUS DRJAMBOREE RDMACARTHUR BLVDUptownPark
PA2014-225_GP2014-004_Reso_Exhibit.mxd
0 700350
FeetI
City of Newport BeachGIS DivisionMay 29, 2020
GP2014-004 (PA2014-225)General Plan Amendment
58
Planning Commission Resolution No. PC2020-020
Page 21 of 24
Anomaly Number 86 shall be inserted into Table LU2 and shall read as follows:
Table LU2 Anomaly Locations
Anomaly
Number
Statistical
Area
Land Use
Designation
Development
Limit (sf) Development Limit (Other) Additional Information
86 L4 MU-H2
Nonresidential
development
297,572
329 dwelling units
59
Planning Commission Resolution No. PC2020-020
Page 22 of 24
EXHIBIT “D”
Zone Code Amendment
60
Zoning District Change Office Airport (OA) to Planned Community (PC) forparcels in outlined area
OA
OA
OA
OA
OA
PC-11
PC-58
PC-15
PC-60
SP-7
CAP
I
T
A
N
C
T
ZEN
I
T
H
A
V
E
CORINTHIAN W A Y
SPRUCE AVEBOWSPRIT DR UPTOWNNEWPORTDRHAL
F
D
O
M
E
P
L TELLER AVEMARTINMARTINGALE WAYSCOTT DRSPRUCE STORCHID STNEWPORT PLACE DR
QU
A
I
L
S
T
DO
V
E
S
T
UPPERNEW PORTPLAZADRCYPRESS STD
O
V
E
S
T
MACARTHURCT
QU
A
I
L
S
T
FAIRCHILD RDWESTERLY PLBRIS
T
O
L
S
T
N
BRIS
T
O
L
S
T
CA
M
P
U
S
D
R
BIR
C
H
S
T
BRIS
T
O
L
S
T
NBIRCH STVON KARMAN AVECAMPUS DRJAMBOREE RDMACARTHUR BLVDUptownPark
PA2014-225_CA2014-009_Reso_Exhibit.mxd
0 700350
FeetI
City of Newport BeachGIS DivisionMay 21, 2020
CA2014-009 (PA2014-225)Code Amendment
61
Planning Commission Resolution No. PC2020-020
Page 23 of 24
EXHIBIT “E”
Planned Community Development Plan
PC-60
Newport Airport Village
62
N EWPORT A IRPORT V ILLAGE
PLANNED COMMUNITY
DEVELOPMENT PLAN
PC-60
Adopted XXXXXX, 2020
Ordinance No. XX-2020
63
TABLE OF CONTENTS
Newport Airport Village i
SECTION PAGE
I. INTRODUCTION AND PURPOSE ............................................................................................... 1
A. Introduction ......................................................................................................................... 1
B. Location ................................................................................................................................ 1
C. Surrounding Area ................................................................................................................. 3
D. Purpose and Objective ......................................................................................................... 4
E. Relationship to Other Regulations ....................................................................................... 4
II. LAND USE AND DEVELOPMENT REGULATIONS ....................................................................... 5
A. Permitted Uses ..................................................................................................................... 6
B. Prohibited Uses .................................................................................................................... 7
C. Existing Legal Nonconforming Uses and Structures ............................................................ 7
D. Land Use Concept ................................................................................................................ 7
E. Development Standards – Planning Area 1 (Mixed-Use Residential Area) ......................... 8
F. Development Standards – Planning Area 2 (Non-Residential Area) ................................. 12
G. Additional Development Standards ................................................................................... 13
III. ARCHITECTURAL DESIGN CONSIDERATIONS ......................................................................... 16
A. General Principles .............................................................................................................. 16
B. Mixed-Use .......................................................................................................................... 16
C. Residential Uses ................................................................................................................. 16
D. Office/Commercial Uses .................................................................................................... 17
E. Conceptual Images to Guide Development ....................................................................... 17
IV. RESIDENTIAL DESIGN GUIDELINES......................................................................................... 21
A. Architectural Variety .......................................................................................................... 21
B. Windows and Entries ......................................................................................................... 21
C. Massing and articulation .................................................................................................... 21
V. PLAN ADMINISTRATION and implementation ...................................................................... 22
A. Permit Review Procedures ................................................................................................. 22
B. Parcel or Tract Maps .......................................................................................................... 22
C. Amendments to Planned Community Development Plan................................................. 22
D. Administrative Responsibility ............................................................................................ 22
E. Enforcement ...................................................................................................................... 22
64
TABLE OF CONTENTS
Newport Airport Village ii
FIGURE PAGE
Figure 1 - Vicinity Map .................................................................................................................... 2
Figure 2 - Airport Area .................................................................................................................... 2
Figure 3 - Newport Airport Village Planned Community ................................................................ 3
Figure 4 - Land Use Map ................................................................................................................. 5
Figure 5 - Conceptual Development Plan ..................................................................................... 10
Figure 6 - Mixed-Use Conceptual Images ................................................................................... 188
Figure 7 - Multi-Unit Residential Conceptual Images ................................................................... 19
Figure 8 - Office/Commercial Conceptual Images ........................................................................ 20
65
NEWPORT AIRPORT VILLAGE
PLANNED COMMUNITY DEVELOPMENT PLAN (PCDP)
I. INTRODUCTION AND PURPOSE
A. Introduction
The Newport Airport Village Planned Community Development Plan (PCDP) (PC-60) is
envisioned to be a horizontal mixed-use development on an approximately 16.46-acre
site that is located in the northern portion of the City, near Macarthur Blvd and Campus
Drive. The City of Newport Beach Municipal Code (NBMC) allows a Planned Community
Development Plan to address land use designations and regulations in Planned
Communities. The PCDP serves as the controlling zoning ordinance for the site and is
authorized and intended to implement the provisions of the Newport Beach General Plan.
The maximum buildout of the PCDP would result in 329 residential dwelling units,
exclusive of any density bonus as allowed pursuant to California Government Code
Section 65915; and 297,572 square feet of office, retail, and commercial use.
The Newport Airport Village Planned Community (PC) consists of approximately 16.46
acres and prior to the development pursuant to this PCDP, a variety of commercial
services, including: retail, restaurants, offices, rental car agencies, and other similar uses
were developed. The Newport Airport Village Design Guidelines (contained herein)
provide a conceptual vision of the physical implementation of the project and have been
drafted to assist the City and community to visualize the architectural theme and desired
character of the development. The Design Guidelines also provides the visual and mental
imagery of what the current property owner and City see for the future development of
the PC.
B. Location
As shown in Figures 1 and 2, the PC District is generally located southeast of John Wayne
Airport and within the “Airport Area” Sub-Area as defined by the Newport Beach General
Plan. The Airport Area includes 360 acres in the northernmost portion of Newport Beach,
bounded by Campus Drive to the west and north, Jamboree Road to the east, and Bristol
Street to the south. The City of Irvine is located north and east of the Airport Area. T he
Airport Area is proximate to Interstate 405 and State Routes 55 and 73. The Airport Area
initially was a light industrial and commercial office area of Newport Beach, but is
gradually redeveloping into a mixed-use community integrating residential development
with existing non-residential uses consistent with the 2006 Newport Beach General Plan.
66
I. INTRODUCTION AND PURPOSE
Newport Airport Village 2
Figure 1 - Vicinity Map
Figure 2 - Airport Area
67
I. INTRODUCTION AND PURPOSE
Newport Airport Village 3
More specifically, the PC is located west of MacArthur Boulevard, south of Campus Drive,
north of Birch Street, and about 550 feet north of Dove Street, as shown in Figure 2.
Figure 3 - Newport Airport Village Planned Community
As also noted in Figure 3, the 65-dBA CNEL noise contour line for John Wayne Airport
(JWA) transects the site. Areas east of (i.e., outside) the 65 dBA CNEL line are “Clearly
Compatible” or “Normally Compatible” with multi-family residential and mixed-use
development under General Plan Table N2 (Land Use Noise Compatibility Matrix). Areas
west of (i.e., inside) the 65 dBA CNEL line are “Normally incompatible” or “Clearly
incompatible” with multi-family residential and mixed-use development under General
Plan Table N2. Under the Airport Environs Land Use Plan for John Wayne Airport (AELUP),
this means that areas west of the 65 dBA CNEL line are deemed suitable for residential
uses and other noise-sensitive uses if the interior noise standard of 45 dBA CNEL can be
maintained with an accompanying dedication of a avigation easement for noise .
Additionally, building heights west of the 65 dBA CNEL line are restricted for aviation
safety.
C. Surrounding Area
John Wayne Airport, a commercial and general aviation airport that is owned and
operated by the County of Orange, is located to the west and north of the site (across
68
I. INTRODUCTION AND PURPOSE
Newport Airport Village 4
Campus Dr). To the immediate northeast of the site, on the southwest corner of
MacArthur Blvd and Campus Dr, is a five-story office building and a small multi-tenant
commercial building. Across MacArthur Boulevard, on the northeast corner of MacArthur
Blvd and Campus Dr, is a nine-story office building that contains professional and medical
office uses; a five-story apartment building at the intersection of Douglas and Martin
Court; and multiple hotels and restaurants along MacArthur Blvd. To the east (across Birch
St) are several multi-story office buildings that range from three to fourteen stories,
hotels, and retail and restaurant uses. Commercial services, including vehicle sales and
repairs and a pharmacy; restaurants; and office uses, including medical offices occupy the
properties to the south of the PC.
D. Purpose and Objective
The purpose of the PCDP is to establish appropriate zoning regulations that govern the
land use and development of the PC in a manner that is consistent with the City of
Newport Beach General Plan. Implementation of the PCDP will:
− Provide a quality mixed-use development that includes residential and supporting
commercial uses; as well as, commercial uses that support or benefit from the
proximity to the airport.
− Create two planning areas to guide the development of the PC District (see Figure
4). Planning Area 1 will include the residential and, potentially, a complimentary
retail or service commercial component of the PC District. Planning Area 2 will
consist exclusively of non-residential uses.
− Provide new housing opportunities in response to increased demand for housing,
reduction of vehicle trips, and an encouragement of an active lifestyle by
increasing the opportunity for residents to live in proximity to jobs, services, and
entertainment. Such housing will be proximate to, and interconnected with,
commercial development through pedestrian walkways provided by future
development within the PCDP.
− Ensure all residential units are located outside the John Wayne Airport 65 dBA
CNEL noise contour and Safety Zone 3.
E. Relationship to Other Regulations
Whenever the provisions of this PCDP conflict with the regulations of the NBMC, the
regulations contained herein will prevail. The NBMC including the Zoning Code apply and
shall also regulate this development whenever regulations are not provided within this
PCDP. Unless otherwise defined herein, all words and phrases used in this PCDP shall have
the same meaning and definition as used in the NBMC.
69
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 5
II. LAND USE AND DEVELOPMENT REGULATIONS
The PC is subdivided into two planning areas. Figure 4 shows the Land Use Map for the
PC District with the 65 dBA CNEL noise contour separating the residential use area from
the non-residential use area.
Figure 4 - Land Use Map
70
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 6
A. Permitted Uses
Table 1 lists the permitted uses for each planning area of the Planned Community. The
uses identified within the table are not intended to be a comprehensive list, but rather
major use categories. The Community Development Director may determine other uses
not specifically listed herein are allowed or allowed pursuant to a MUP or CUP, provided
they are consistent with the purpose of the planning areas, are compatible with
surrounding uses, and are not listed as a prohibited use.
Table 1
Permitted Uses
Uses Planning
Area 1
Planning
Area 2
Additional
Regulations
Residential
Multi-unit dwellings P -
Live/work units P -
Mixed-use development P -
Accessory dwelling units P - NBMC 20.48.200
Home Occupations P - NBMC 20.48.110
Residential accessory uses
and amenities
P P
Food, alcohol, entertainment
Alcohol sales (off-site) MUP MUP NBMC 20.48.030
Alcohol Sales (on-site) CUP CUP NBMC 20.48.030
Bars, lounge, nightclub CUP CUP NBMC 20.48.030 & 20.48.090
Food service, no late hours MUP MUP NBMC 20.48.030 & 20.48.090
Food service, late hours CUP CUP NBMC 20.48.030 & 20.48.090
Office, retail, service
Financial Institutions P P
Offices, business &
professional
P P
Offices, medical and dental P P
Personal services, general P P
Personal services, restricted MUP MUP
Retail sales (less than
10,000 sq. ft.)
P P
Retail sales (greater than
10,000 sq. ft.)
P P
Other uses
Uses not listed herein, but
allowed in the OA zone
A A Subject to applicable NBMC
requirements
71
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 7
Table 1 Continued
P = Permitted Use
CUP = Conditional Use Permit
MUP = Minor Use Permit
A = Allowed subject to permit requirements provided in Table 2-4 of NBMC Section
20.20.020(C)
- = Not Permitted
B. Prohibited Uses
The following uses shall be expressly prohibited from the PCDP:
1. Any use not authorized by this PCDP unless the Community Development Director
determines a particular use consistent with the purpose and intent of the PCDP ,
2. Residential dwelling units within (i.e., west of) the 65 dBA CNEL (or above) noise
contour from John Wayne Airport (residential accessory uses, and amenities are
allowed),
3. Residential dwelling units within John Wayne Airport Safety Zone 3 (residential
accessory uses, and amenities are allowed),
4. The following uses, if said structure within 250 feet of any residential dwelling
unit:
a. Handicraft Industry
b. Industry, Small (less than 5,000 sq. ft.)
c. Emergency Health Facilities/Urgent Care
d. Ambulance Services
e. Funeral Homes and Mortuaries
f. Maintenance and Repair Services.
C. Existing Legal Nonconforming Uses and Structures
Existing legally established use and structures that no longer conform to the provisions of
this PCDP shall be subject to NBMC Chapter 20.38.
D. Land Use Concept
Figure 5 depicts the conceptual development plan for Newport Airport Village Planned
Community. Multi-story residential structures would be located near the north side of the
site in Planning Area 1 and may have a retail/commercial component. Office, commercial
and other non-residential buildings would be located south of the residential buildings in
Planning Area 2. A landscaped esplanade with open space areas, pedestrian pathways
with areas for passive seating, and bicycle facilities will be provided to create an efficient
and safe pedestrian-friendly environment interconnecting the various land uses through-
72
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 8
out the site with surrounding properties and public ways. Although the PC may not be
developed exactly as depicted in the conceptual land use development map, it serves as
a demonstration of what could be achieved through the application of the site
development standards of this PCDP.
E. Development Standards – Planning Area 1 (Mixed-Use Residential
Area)
1. Permitted Height of Residential or Mixed-Use Structures: No structure, nor any
portion of any structure, architectural feature, elevator penthouse, or mechanical
equipment shall exceed a height of 85 feet measured consistent with the Zoning
Code.
2. Permitted Height of Nonresidential Structures: No structure, nor any portion of
any structure, architectural feature, elevator penthouse, or mechanical
equipment shall exceed a height of 37 feet measured consistent with the Zoning
Code, unless a Site Development Review is approved pursuant to NBMC Section
20.52.080, in which case the maximum shall be 55 feet.
3. Setbacks: Minimum setbacks shall be as follows:
a. Buildings, or portion thereof, that are under 20 feet in height shall be setback
a minimum of 10 feet from any street property line and a minimum of 5 feet
from any internal property line.
b. Buildings, or portion thereof, that are 20 feet or greater in height shall be
setback a minimum of 20 feet from any street property line and a minimum of
5 feet from any internal property line.
4. Residential Density: Densities shall be a minimum of 30 dwelling units per acre
and a maximum of 50 dwelling units per acre, not including density bonus units.
5. Residential Development Limit: A maximum of 329 dwellings units shall be
permitted, exclusive of any density bonus as allowed pursuant to California
Government Code Section 65915. In addition, residential development (excluding
density bonus units) shall be subject to the maximum development allocation for
the Airport Area established by General Plan Land Use Policy 6.15.5, or any
successor policy or development limit resulting from a future General Plan
Update/Amendment, provided that such allocation does not result in a reduction
of the 329 permitted dwelling units in Planning Area 1.
6. Floor Area Limit: Floor area for nonresidential uses shall not exceed 94,583 square
feet. This floor area limit is based on the conversion of commercial development
allowed by the general plan to residential dwelling units pursuant to General Plan
73
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 9
Policy LU6.15.5. The 2006 General Plan allowed a 0.5 FAR (155,509 square feet)
that is reduced by 60,926 square feet and converted to allow 329 dwelling units.
7. Common Open Space: All residential development shall incorporate common
open space in the amount of 75 square feet per unit with minimum dimensions of
15 feet in any direction. At least half of the common open space shall consist of
recreational amenities, including but not limited to the following:
a. Swimming pools/spas and adjacent lounging decks
b. Exercise facilities
c. Tennis courts
d. Basketball courts
e. Clubhouse rooms
f. Roof deck recreation areas
g. Community gardens
h. Barbecue and other active (e.g. bocce ball) or passive (e.g., reading)
courtyards
i. Other amenities as deemed appropriate by the Community Development
Director
Outdoor common areas or recreational areas shall be posted with an outdoor
notification sign to users regarding the proximity to John Wayne Airport and
presence of operating aircraft.
74
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 10
Figure 5 - Conceptual Development Plan
75
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 11
8. Private Open Space: All residential development shall incorporate private open
space in the amount of 5% of the gross floor area (minimum) for each unit with a
minimum dimension of 6 feet in any direction.
9. Affordability Requirements: Residential development shall include affordable
housing as follows: a minimum of 5% of units for very-low income households, or
a minimum of 10% of units for low-income households, or a minimum 10% of units
for moderate-income households within a common-interest development. The
following requirements also apply:
a. Affordable units shall be provided on-site.
b. Affordable units shall be designed and distributed within the residential as
follows:
i. Number of Bedrooms. Affordable units shall reflect the range of
numbers of bedrooms provided in the residential development project
as a whole.
ii. Comparable Quality and Facilities. Affordable units shall be comparable
in the facilities provided (e.g., laundry, recreation, etc.) and in the
quality of construction and exterior design to the market-rate units.
iii. Size. Affordable units may be smaller and have different interior
finishes and features than the market-rate units, and
iv. Location. Affordable units shall be dispersed throughout the residential
development, unless clustering is allowed by the review authority.
c. 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 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.
d. Density bonuses/incentives or development standard concessions shall be
provided pursuant to NBMC Chapter 20.32 and Section 65915 et. seq of the
California Government Code.
10. Sound Mitigation: 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 the interior noise standard. The residential units
shall be constructed, and noise attenuated in compliance with the report.
76
II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 12
11. Residential Design: Unless otherwise deemed appropriate by the City’s Review
Authority all residential and mixed-use buildings shall be generally consistent with
the residential design guidelines as set forth in Section IV of the PCDP.
12. Notification to owners and tenants: A written disclosure statement shall be
prepared prior to sale, lease, or rental of a residential unit within the
development. The disclosure statement shall indicate that the occupants will be
living in an urban type of environment adjacent to an airport and that the noise,
odor, and outdoor activity levels may be higher than a typical suburban residential
area. The disclosure statement shall include a written description of the potential
impacts to residents of both the existing environment (e.g., noise from planes,
commercial activity on the site and vehicles streets) and potential nuisances based
upon the allowed uses in the zoning district . Each and every buyer, lessee, or
renter shall sign the statement acknowledging that they have received, read, and
understand the disclosure statement. A covenant shall also be included within all
deeds, leases or contracts conveying any interest in a res idential unit within the
development that requires: (1) the disclosure and notification requirement stated
herein; (2) an acknowledgment by all grantees or lessees that the property is
located within an urban type of environment and that the noise, odor, a nd
outdoor activity levels may be higher than a typical suburban residential area; and
(3) acknowledgment that the covenant is binding for the benefit and in favor of
the City of Newport Beach.
13. Deed notification: A deed notification shall be recorded with the County
Recorder’s Office, the form and content of which shall be satisfactory to the City
Attorney. The deed notification document shall state that the residential unit is
located in a mixed-use development and that an owner may be subject to impacts,
including inconvenience and discomfort, from lawful activities occurring in the
project or zoning district (e.g., noise, lighting, odors, high pedestrian activity levels,
etc.).
14. Park Dedications and Fees: All residential subdivisions shall comply with all park
dedications and fees, as required in NBMC Chapter 19.52.
F. Development Standards – Planning Area 2 (Non-Residential Area)
In addition to the additional development standards listed in Section II(F) of this PCDP,
the following standards apply to all development in Planning Area 2.
1. Permitted Height of Structures: No structure, nor any portion of any structure,
architectural feature, elevator penthouse, or mechanical equipment shall exceed
a height of 37 feet, unless a Site Development Review is approved pursuant to
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II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 13
NBMC Section 20.52.080, in which the review authority may allow buildings or
structures to exceed 37 feet to a maximum of 55 feet.
2. Setbacks: Minimum setbacks shall be 15 feet from any street property line and 5
feet from any internal property line.
3. Floor Area Ratio: Floor area ratio shall not exceed 0.5, except for warehouse uses,
which are allowed a maximum floor area ratio of 0.75.
4. Lot Size and Dimensions: Newly created lots shall meet the minimum standards
for lots provided in NBMC Section 20.20.030 for the OA (Office—Airport) Zoning
District.
G. Additional Development Standards
In addition to the planning area specific development standards listed in Sections II(D)
and II(E) of this PCDP, the following standards apply to all development within the
Newport Airport Village Planned Community.
1. Maximum Intensity: The total area of all office, retail, and other commercial uses
within the Newport Airport Village PC shall not exceed 297,572 square feet.
2. Parking and Circulation: Parking and on-site circulation shall comply with NBMC
Chapter 20.40. All proposed development is required to be reviewed and
approved by the Planning Division, Public Works Department, the City Traffic
Engineer, Fire Department and Building Division. On-site circulation, including but
not limited to, driveway location, sight distance, parking lot design, drive aisles,
emergency vehicle access and access the disabled shall meet applicable codes,
polices and design standards. All approved vehicle entry points to the PC District
shall comply with applicable City of Newport Beach Public Works and Fire
Department requirements regarding safe and convenient vehicular access.
3. Landscaping: A detailed landscape and irrigation plan shall be prepared by a
licensed landscape architect and submitted with the Site Development Review
application. Landscaping shall be designed, installed, and maintained in consistent
with all requirements of NBMC Chapters 14.17 (Water Efficient Landscaping) and
20.36 (Landscaping Standards). Landscape shall also be maintained in a healthy,
weed-free condition, free of litter and consistent with NBMC Section 20.30.130
(Traffic Safety Visibility Area).
4. Pedestrian and Bicycle Connection: All uses in the PC shall be interconnected
through safe and efficient pedestrian and bicycle paths, including a pedestrian
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II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 14
connection feature between the residential and non-residential components of
the PC District.
5. Lighting: A detailed lighting plan with lighting fixtures and standard designs shall
be submitted with the Site Development Review application and shall comply with
NBMC Section 20.30.070. The lighting system shall be designed and maintained to
conceal the light source and minimize light spillage and glare outside of the
boundary of the PC District. A minimum average 0.5 foot-candle shall be provided
on all driving or walking surface during the hours of operation and one hour
thereafter. All lighting shall comply with NBMC Section 20.30.070.
6. Utilities: A Utilities Plan shall be submitted with the Site Development Review
application. The final alignment and location of utilities shall be reviewed and
approved by the Public Works Department. Adequate access for maintenance
vehicles shall be provided. All utilities on private property shall be privately
maintained and operated.
7. Air Conditioning Units: The use of individual through-window or through-wall air
conditioning units any commercial or residential unit is prohibited.
Signs: A comprehensive sign program with sign materials and lighting details shall
be submitted with the Site Development Review application. All signage shall
comply with the Chapter 20.42 of the Municipal Code. Should a future
neighborhood public park be constructed in either Planning Area, the park shall
be posted with a notification to users regarding the proximity to John Wayne
Airport and aircraft overflight and noise. Outdoor common areas or recreational
areas shall also be posted with an outdoor notification sign to users regarding the
proximity to John Wayne Airport and presence of operating aircraft.
8. Fences, Hedges, & Walls: Fences, hedges, and walls shall be limited to the
following heights, subject to the exceptions contained in NBMC Section 20.30.040:
a. Street setback areas – 42 inches
b. Interior setback areas – 6 feet
c. Between residential uses and nonresidential uses and parking areas – 8 feet
9. Buffering and Screening
a. General Requirements: Mechanical equipment must be located so that the
impact of noise on residential 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.
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II. LAND USE AND DEVELOPMENT REGULATIONS
Newport Airport Village 15
b. 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 residential
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. Supports for window washing equipment
are permitted and are not required to be screened from view. No setbacks
are required for rooftop mechanical equipment or appurtenances. All roof-
mounted mechanical equipment and appurtenances shall be at or below all
applicable height limits.
c. Ground-mounted Mechanical Equipment: Ground-mounted mechanical
equipment shall be screened from public rights-of-way and/or public
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 is not permitted with or without slats is not allowed.
d. Outdoor Storage: Where equipment, material, or merchandise is allowed to
be stored outdoors, these items shall be screened from public view and
adjacent residential areas using fences, walls, solid hedges, or other
methods. Chain link fencing with or without slats is not allowed.
e. Solid Waste Storage Areas: New development shall provide adequate,
enclosed areas with solid roofs for collecting, storing, and loading solid waste
and recyclable materials. The square footage provided for solid waste and
recyclable materials storage must be in compliance with NBMC Section
20.30.120. Solid waste and recyclable materials storage areas must be
adequate in distribution to serve the project and be screened from public
rights-of-way and/or public property as seen from a point six feet above
ground level. Screening may consist of solid masonry walls, metal gates,
landscaping, or similar methods. Structures used for solid waste screening
must be visually compatible with the surrounding structures and must be
properly secured to prevent access by unauthorized persons, while allowing
authorized persons access for disposal of materials.
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III. ARCHITECTURAL DESIGN CONSIDERATIONS
Newport Airport Village 16
III. ARCHITECTURAL DESIGN CONSIDERATIONS
A. General Principles
The following general principles shall be considered when siting and designing new
development within Newport Airport Village.
1. Development should be designed to convey a unified and high-quality character
with use of consistent architectural design vocabulary, materials, and color
palette.
2. Building elevations should employ architectural treatments, articulation and
modulation of mass to avoid the appearance of monolithic box-like buildings.
3. High-quality doors, windows, moldings, and finishes should be used on elevations
visible from streets and pedestrian paths.
4. Roof profiles should be articulated to reduce the appearance of large structures
and provide visual interest.
5. Streetscape design and plant materials should reflect the street’s location and
nature.
6. Abundant use of landscape within interior courtyards, open spaces, and parking
areas should be encouraged.
7. The design of parking areas and parking facilities should consider architectural
consistency and physical integration with nearby buildings.
8. Open parking lots should be set back from public streets and screened using
buildings, decorative walls, berms or dense landscaping.
B. Mixed-Use
The following principles shall be considered when siting and designing new mixed-use
development.
1. Residential uses should be seamlessly integrated with nonresidential uses through
pedestrian connections, landscape, and other physical connections.
2. Conflicts between different uses, such as noise, vibration, glare, odors, and similar
impacts, should be minimized through careful siting, building design and
incorporation of appropriate building materials.
3. Entries for residential units and nonresidential businesses should be separate and
well-defined.
C. Residential Uses
The following principles shall be considered when new development includes residential
use.
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III. ARCHITECTURAL DESIGN CONSIDERATIONS
Newport Airport Village 17
1. Private open space for each residential unit should be usable and functional.
2. Common residential open space should create opportunities for recreation and
promote an attractive living environment.
D. Office/Commercial Uses
The following principles shall be considered when siting and designing new office or
commercial development.
1. Building siting should be oriented around public spaces such as plazas, courtyards,
walkways, and open spaces.
2. On-site landscaping should emphasize special features such as entryways.
3. Landscape and other amenities should be used to provide visual relief within
surface parking lots.
4. A common signage program that reflects the architectural style and character of
the development should be prepared to address tenant identification and
wayfinding.
5. Common streetscape and lighting programs should be developed to promote
pedestrian activity.
6. Site design should provide clear site access, entrance drives and building entries
as well as minimize conflicts between service vehicles, private automobiles, and
pedestrians.
E. Conceptual Images to Guide Development
The following images provide general direction to convey the desired quality for new
development through architectural massing, detail, variety in building materials and
integration of pedestrian-orientation. These images are meant to inspire designers and
do not indicate the precise design of future development within Newport Airport Village.
The images are grouped by land use type: mixed use, multi-unit residential buildings, and
office/commercial development.
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III. ARCHITECTURAL DESIGN CONSIDERATIONS
Newport Airport Village 18
Figure 6 - Mixed-Use Conceptual Images
83
III. ARCHITECTURAL DESIGN CONSIDERATIONS
Newport Airport Village 19
Figure 7 - Multi-Unit Residential Conceptual Images
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III. ARCHITECTURAL DESIGN CONSIDERATIONS
Newport Airport Village 20
Figure 8 - Office/Commercial Conceptual Images
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IV. RESIDENTIAL DESIGN GUIDELINES
Newport Airport Village 21
IV. RESIDENTIAL DESIGN GUIDELINES
The Newport Airport Village Residential Design Guidelines are intended to set parameters
for the design of residential buildings and ensure an appropriate aesthetic quality is
provided on all residential buildings. All residential and mixed-use buildings within
Newport Airport Village PC should be generally consistent with the guidelines contained
in this section of the PCDP.
A. Architectural Variety
1. Buildings should utilize more than a single-color on all façades.
2. Buildings should utilize more than a single finished material on all façades. For the
purpose of this requirement, windows are not considered a finished material.
3. Building should have more than one roof height. The change in roof height shall
be at least 5 feet for buildings with a height under 30 feet tall and 10 feet for
buildings with a height of 30 feet or more.
4. Buildings should not have blank façades. For the purpose of these guidelines a
blank façade shall mean, any portion of the façade that is above the ground level
and does not have a window or balcony 15 feet in any direction.
B. Windows and Entries
1. The primary pedestrian entry into the building should lead into a common lobby
or corridor and shall face the street or a common open space.
2. Ground level dwelling units are encouraged to have an individual primary entry on
the exterior façade of the building.
3. Rain protection should be provided above all pedestrian entries through the use
of awnings, porticos, arcades, or the like.
4. Exterior windows and doors should be inset a minimum 2-½ inches from the
adjoining wall.
C. Massing and articulation
1. The first three floors of a building should have a plane-break to divide all street
facing facades into segments no more than 30 feet wide. Plane-breaks shall have
a minimum depth and width of 5 feet.
2. The fourth floor and above of a building should have a plane-break on all street
facing facades. Plane-breaks shall have a minimum depth of 5 feet and be across
25% of the width of the building.
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V. PLAN ADMINISTRATION AND IMPLEMENTATION
Newport Airport Village 22
V. PLAN ADMINISTRATION AND IMPLEMENTATION
A. Permit Review Procedures
Approval of the Site Development Review application by the City-designated Review
Authority consistent with NBMC Chapter 20.52 shall be required prior to the issuance of
a grading or building permit for the construction of any new structure within the
boundaries of the PCDP. The application shall include all materials necessary to clearly
determine consistency with this PCDP and applicable requirements of the Newport Beach
Municipal Code. The applicant shall include a descriptive narrative supported by facts,
exhibits, or diagrams that clearly show how a proposed development generally conforms
to the PCDP design guidelines.
B. Parcel or Tract Maps
No parcel or tract map shall be recorded prior to the approval of the Site Development
Review for the entire project or significant phase so that the responsibility for
performance of, and payment for, maintenance are clear.
C. Amendments to Planned Community Development Plan
Applications for amendments to this Planned Community Development Plan shall follow
the process identified in the NBMC Section 20.56.050(E).
D. Administrative Responsibility
All property within this PCDP shall be subject to NBMC Chapter 20.60 that prescribes the
authority and responsibilities of the Newport Beach City Council, Planning Commission,
Hearing Officer, Zoning Administrator, and Community Development Director (Planning
Director) in the administration of this PCDP and the Zoning Code.
E. Enforcement
All property within this PCDP shall be subject to NBMC Chapter 20.68 that establishes
provisions intended to ensure compliance with this PCDP and the Zoning Code.
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Planning Commission Resolution No. PC2020-020
Page 24 of 24
EXHIBIT “F”
Development Agreement
88
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City 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
JRSM, LLC
concerning
NEWPORT AIRPORT VILLAGE
4341, 4361 BIRCH STREET, AND 4501 BIRCH STREET
4320, 4340, 4360, 4400, 4540, 4500, 4520, 4570, 4600, AND 4630 CAMPUS DRIVE
4525, 4533 AND 4647 MACARTHUR BOULEVARD
89
-2-
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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 JRSM, 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 fee simple owner of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as 4341, 4361, and
4501 Birch Street, 4320, 4340, 4360, 4400, 4540, 4500, 4520, 4570, 4600, and 4630 Campus
Drive, and 4525, 4533 and 4647 MacArthur Boulevard (“Property) and therefore is authorized to
enter into this Agreement pursuant to Government Code Section 65865 and Newport Beach
Municipal Code Chapter 15.45. 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 Six Million Dollars
and 00/100 ($6,000,000). Developer shall pay the Public Benefit Fee to the City as provided in
Article 3 of this Agreement.
E. This Agreement is consistent with the City of Newport Beach General Plan,
including, without limitation, the Property’s proposed “MU-H2” (Mixed-Use Horizontal 2)
General Plan designation that is being adopted and approved by the City Council concurrently
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2
with its approval of this Agreement to establish appropriate standards to regulate land use and
development of the Property consistent with the General Plan.
G. 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 Program Environmental Impact Report
(SCH# 2006011119) (“PEIR”) that was certified by the City Council on July 25, 2006 for the
2006 General Plan Update and Supplemental Environmental Impact Report (SCH# 2013101064)
(“SEIR”) that was certified by the City Council on July 22, 2014 for the 2014 Land Use Element
Update, 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.
H. On June 4, 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.
I. On _______________, 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
_______________, 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.
“Adopting Ordinance” shall mean City Council Ordinance No. 2020-__ approving and
adopting this Agreement.
“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.
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“CEQA” 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 JRSM, 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.
“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
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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) General Plan Amendment No. GP2014-004 to change the
General Plan Land Use Designation of the project area from Airport Office and Supporting Uses
(AO) to Mixed Use Horizontal 2 (MU-H2) and to amend Table LU2 (Anomaly Locations) to add
the project area as an anomaly to allow for the development of 329 dwelling units, exclusive of
any permitted density bonus and 297,572 square feet of nonresidential floor area; (3) Planned
Community Development Plan Amendment No. PC2020-002 to adopt the Newport Airport
Village Planned Community Development Plan (PCDP). The PCDP sets the development,
design and land use standards for the project area; (4) Zoning Code Amendment CA2014-009 to
change the zoning district of the project area from OA (Office Airport) to PC-60 (Newport
Airport Village Planned Community); (5) Development Agreement No. DA2014-003 which
would provide vested rights to develop the planned community, while also providing public
benefits should the Project be approved; (6) a density bonus in accordance with the California
Government Code Section 65915 et. seq. (7) the Addendum to PEIR (SCH No. 2006011119) and
SEIR (SCH No. 2013101064) ER2020-002 (SCH#2016021023); and (8) 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 of the Municipal Code
(buildings and construction), Title 19 of the Municipal Code (subdivisions and inclusionary
housing), and Title 20 of the Municipal Code (planning, zoning and density bonus), but
specifically excluding all other sections of the Municipal Code, including without limitation Title
5 of the Municipal Code (business licenses and regulations). 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 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
thirty (30) 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
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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; or (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. 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 seq., 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 seq., as amended
(“RCRA”); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., 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 seq., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety
Code Section 25100, et seq.
“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
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.
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“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.
“Party” or “Parties” shall mean either City or Developer or both, as determined by the
context.
“Project” shall mean 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 at 4341, 4361, and 4501 Birch Street, 4320, 4340, 4360, 4400,
4500, 4520, 4540, 4570, 4600, and 4630 Campus Drive, and 4525, 4533 and 4647 MacArthur
Boulevard 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.
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.
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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
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 fifteenth (15th)
anniversary of the Effective Date for the residential portion and the twentieth (20th) anniversary
for the non-residential portion; (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
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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 Six Million Dollars and 00/100
($6,000,000), which shall be in addition to any other fee or charge to which the Property and the
Project would otherwise be subject.
The Developer shall pay Two Million Dollars and 00/100 ($2,000,000) of the Public
Benefit Fee to the City within thirty (30) days of the Effective Date of the Agreement ; Two
Million Dollars and 00/100 ($2,000,000) of the Public Benefit Fee at the time the City issues the
Project’s first building permit; and Two Million Dollars and 00/100 ($2,000,000) of the Public
Benefit Fee to the City at the time of issuance of the first certificate of occupancy or temporary
occupancy permit. Should the Developer fail to pay the Public Benefit Fee at the times provided
above, the Developer shall be in default of the Agreement, as further described in Article 8 of
this Agreement.
The amount of the Public Benefit Fee shall be increased based upon percentage increases
in the CPI Index. The first CPI adjustment to the Public Benefit Fee 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 Adjus tment
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 the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to
that Adjustment Date. Notwithstanding any other provision set forth in this Agreement to the
contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except
pursuant to the CPI Index as stated in this Section 3.1.
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The City has not designated a specific project or purpose for the Public Benefit Fee.
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 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 the Public
Benefit Fee shall be allocated and no final decisions have been made as of the Agreement Date.
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. The park land dedication requirement for the Project pursuant to the
City General Plan Land Use Policy 6.5.13 is 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 Municipal Code Chapter 19.52 obligations governing park land dedication and
fees. City acknowledges that Developer shall be 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. In lieu of dedicating land, the Developer shall pay one-half of
the park dedication fee at the time the first building permit(s) is issued for any residential unit
and the second-half to be paid at the time the first building permit(s) is issued for the non-
residential portion of the Project.
3.2.2 Public Safety Fee. Developer shall pay a public safety fee in the amount of One
Million Dollars and 00/100 ($1,000,000) 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.
3.3 Reserved.
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4. Development of Project.
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.
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.
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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.
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 Regulations. 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.
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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 City’s Municipal Code.
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
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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
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. 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.
5. 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
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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.
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
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.
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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
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
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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.
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
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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 Liability of City 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.
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 Indemnity Arising From Acts or Omissions of Developer.
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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
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 at tributable 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 Environmental Indemnity.
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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.
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
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
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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.
12. Mortgagee 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 Mortgagee 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
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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.
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
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TO DEVELOPER: JRSM, LLC
4040 MacArthur Boulevard, Suite 300
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
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
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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.
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
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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
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 Party 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.
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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
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]
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SIGNATURE PAGE TO DEVELOPMENT AGREEMENT
“DEVELOPER”
JRSM, LLC, a California limited liability
company
By: ____________________________
Name: ____________________________
Title: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
“CITY”
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
Will O’Neill, Mayor
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
Sean Matsler, Attorney for Developer
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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)
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ADDRESS APN LEGAL DESCRIPTION
4361 Birch Street,
Newport Beach CA
427-121-23 THE LAND REFERRED TO HEREIN BELOW IS SITUATED NEWPORT
BEACH IN THE COUNTY OF ORANGE, STATE OF CALIFORNI A, AND
IS DESCRIBED AS FOLLOWS:
LOTS 7, 8, 9 AND 10 OF TRACT NO. 5169, IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN
ON A MAP RECORDED IN BOOK 190, PAGES 11, 12 AND 13 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA.
SAID LAND IS ALSO SHOWN AS PARCEL 1 ON LOT LINE
ADJUSTMENT 93-5, RECORDED DECEMBER 8, 1993 AS
INSTRUMENT NO. 93-0854901, OFFICIAL RECORDS.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS,
MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, AND OTHER MATERIAL RESOURCES AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE GRANT DEED RECORDED APRIL 9, 1993 AS INSTRUMENT NO.
93-0237996 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR
INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR,
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR
WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND
POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE
SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
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ADDRESS APN LEGAL DESCRIPTION
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE GRANT DEED
RECORDED APRIL 9, 1993 AS INSTRUMENT NO. 93 -0237996,
OFFICIAL RECORDS.
4540 Campus Drive
Newport Beach, CA
427-111-03 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 18 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 190, PAGES 11 THROUGH 13, INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS
BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, RECORDED JUNE 30, 1992 AS INSTRUMENT NO. 92 -
440215 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR
INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR,
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR
WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND
POWER TO EXPLORE, DRILL, REDRILL, REMOVE, AND STORE THE
SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED
119
ADDRESS APN LEGAL DESCRIPTION
JUNE 30, 1992 AS INSTRUMENT NO. 92-440215 OF OFFICIAL
RECORDS.
PARCEL 2:
AN EASEMENT FOR DRIVEWAY PURPOSES OVER THE WESTERLY
12 FEET OF THE NORTHERLY 60 FEET OF LOT 17 OF TRACT NO.
5169, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN
BOOK 190, PAGES 11 THROUGH 13, INCLUSIVE OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA, AS SET FORTH IN THAT CERTAIN DECLARATION OF
ACCESS EASEMENT, RECORDED JUNE 30, 1992 AS INSTRUMENT
NO. 92-440213 OF OFFICIAL RECORDS, UPON THE TERMS AND
CONDITIONS AS THEREIN PROVIDED
4340 Campus Drive
Newport Beach, CA
427-121-07 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 29 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP RECORDED IN BOOK 130, PAGES 25 TO 30 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS,
MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED BY
THE IRVINE COMPANY IN DEED RECORDED FEBRUARY 4 , 1994 AS
INSTRUMENT NO. 94-0085581 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR
INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR,
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR
WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND
POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE
120
ADDRESS APN LEGAL DESCRIPTION
SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS AS RESERVED IN THE DEED
RECORDED FEBRUARY 4, 1994 AS INSTRUMENT NO. 94-0085581 OF
OFFICIAL RECORDS
4400 Campus Drive
Newport Beach, CA
427-121-09 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 31 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 130, PAGE(S) 25 THROUGH 30, INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS,
MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED BY
THE IRVINE COMPANY IN DEED RECORDED DECEMBER 20, 1991
AS INSTRUMENT NO. 91-702340, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR
INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR,
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR
WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND
POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE
SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
121
ADDRESS APN LEGAL DESCRIPTION
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS AS RESERVED IN THE DEED
RECORDED DECEMBER 20, 1991 AS INSTRUMENT NO. 91-702340, OF
OFFICIAL RECORDS
4570 Campus Drive
Newport Beach, CA
427-111-04 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 17 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 190, PAGES 11 THROUGH 13, INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAND COUNTY.
EXCEPTING THEREFROM ALL MINERALS, OIL, GAS, PETROLEUM,
OTHER HYDROCARBON SUBSTANCES AND ALL UNDERGROUND
WATER IN OR UNDER OR WHICH MAY BE PRODUCED FROM SAID
LAND WHICH UNDERLIES A PLANE PARALLEL TO AND 500 FEET
FROM THE PRESENT SURFACE OF SAID LAND FOR THE PURPOSE
OF PROSPECTING FOR, THE EXPLORATION, DEVELOPMENT,
PRODUCTION, EXTRACTION AND TAKING OF SAID MINERALS,
OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES
AND WATER FROM SAID LAND BY MEANS OF MINES, WELLS,
DERRICKS, OTHER EQUIPMENT FROM SURFACE LOCATIONS O N
ADJOINING OR NEIGHBORING LAND OR LYING OUTSIDE OF THE
ABOVE DESCRIBED LAND, IT BEING UNDERSTOOD THAT THE
OWNER OF SUCH MINERALS, OIL GAS, PETROLEUM, OTHER
HYDROCARBON SUBSTANCES AND WATER AS SET FORTH
ABOVE, SHALL HAVE NO RIGHT TO ENTER UPON THE SAID LAN D
OR ANY PORTION THEREOF ABOVE SAID PLANE PARALLEL TO
AND 500 FEET BELOW THE PRESENT SURFACE OF TI EE SAID
LAND FOR ANY PURPOSE WHATSOEVER.
AS RESERVED BY THE IRVINE COMPANY, A MICHIGAN
CORPORATION IN THE DEED RECORDED FEBRUARY 19, 1993 AS
INSTRUMENT NO. 93-107963 OF OFFICIAL RECORDS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
INSTRUMENT ENTITLED “DECLARATION OF ACCESS EASEMENTS
(MACARTHUR/CAMPUS)” DATED JANUARY 30, 1992 AND
RECORDED FEBRUARY 20, 1992 AS INSTRUMENT NO. 92-101692 AS
AMENDED AND RESTATED IN AN INSTRUMENT RECORDED APRIL
16, 1992 AS INSTRUMENT NO. 92-247260, BOTH OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 3:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
122
ADDRESS APN LEGAL DESCRIPTION
INSTRUMENT ENTITLED “DECLARATION OF ACCESS EASEMENT.
DATED JUNE 17, 1992, AND RECORDED JUNE 30, 1992 AS
INSTRUMENT NO. 92- 440213 OF OFFICIAL RECORDS OF ORANGE
COUNTY, CALIFORNIA.
4341 Birch Street
Newport Beach CA
427-121-14 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 6 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP RECORDED IN BOOK 190, PAGES 11, 12 AND 13 OF
MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY
WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL
PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY
BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, RECORDED DECEMBER 31, 1991 AS INSTRUMENT
NO. 91-720058 OF OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS
THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR, AND
OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH
RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER
TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME
FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED
DECEMBER 31, 1991 AS INSTRUMENT NO. 91-720058 OF OFFICIAL
RECORDS. APN: 427-121-14
123
ADDRESS APN LEGAL DESCRIPTION
4500 and 4520
Campus Drive
Newport Beach, CA
427-111-01,
427-111-02
and
427-121-10
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 IN THE CITY OF NEWPORT BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN
BOOK 60, PAGE 22 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
4600 Campus Drive
Newport Beach, CA
427-111-05 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 16 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 190, PAGES 11 TO 13 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM, ANY AND ALL OIL, OIL RIGHTS,
MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM AND OTHER MATERIAL RESOURCES AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE ON THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED BY THE IRVINE COMPANY, RECORDED FEBRUARY 19,
1993 AS INSTRUMENT NO. 93-107971, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR
INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR
WITH RESPECT TO THE LAND TOGETHER WITH THE RIGHT AND
POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE
SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
124
ADDRESS APN LEGAL DESCRIPTION
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED BY THE
IRVINE COMPANY, RECORDED FEBRUARY 19, 1993 AS
INSTRUMENT NO. 93-107971, OFFICIAL RECORDS.
PARCEL 2:
NONEXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
INSTRUMENT ENTITLED “AMENDED AND RESTATED OR ACCESS
EASEMENTS (MACARTHUR/CAMPUS)”, DATED MARCH 25, 1992,
RECORDED APRIL 16, 1992 AS INSTRUMENT NO. 92 -247260, IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
4360 Campus Drive
Newport Beach, CA
427-121-08 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 30 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP RECORDED IN BOOK 130, PAGES 25, 26, 27, 28, 29 AND 30 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY
CALIFORNIA.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS
BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, RECORDED MARCH 15, 1994 AS INSTRUMENT NO.
94-0179376, OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS
THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR, AND
OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH
RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER
TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME
FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
125
ADDRESS APN LEGAL DESCRIPTION
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED
MARCH 15, 1994 AS INSTRUMENT NO. 94-0179376, OFFICIAL
RECORDS.
4501 Birch Street
Newport Beach, CA
427-111-10 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 12 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP RECORDED IN BOOK 190. PAGES 11 TO 13 INCLUSIVE OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS
BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR. ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, RECORDED JANUARY 10, 1992 AS INSTRUMENT
NO. 92-015047, OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER, RIGHTS OR INTERESTS
THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR, AND
OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH
RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER
TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME
FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
126
ADDRESS APN LEGAL DESCRIPTION
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED
JANUARY 10, 1992 AS INSTRUMENT NO. 92-015047, OFFICIAL
RECORDS.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER
THAT PORTION OF LOT 13 OF TRACT NO. 5169, IN THE CITY OF
NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 190, PAGES 11 TO 13 INCLUSIVE
OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID LOT;
THENCE NORTH 29° 52' 01” WEST 327.33 FEET TO THE MOST
WESTERLY CORNER OF SAID LOT; THENCE NORTH 52° 01' 58”
EAST 24.24 FEET ALONG THE NORTHWESTERLY LINE OF SAID
LOT TO THE NORTHWESTERLY PROLONGATION OF A LINE
PARALLEL WITH AND NORTHEASTERLY 24.00 FEET FROM THE
SOUTHWESTERLY LINE OF SAID LOT; THENCE SOUTH 29° 52' 10”
EAST 331.81 FEET ALONG SAID PROLONGATION, SAID PARALLEL
LINE AND THE SOUTHERLY PROLONGATION THEREOF TO A
POINT ON A CURVE IN THE SOUTHERLY LINE OF SAID LOT, SAID
CURVE BEING CONCAVE SOUTHERLY, HAVING A RADIUS OF
272.00 FEET, A RADIAL TO SAID POINT BEARS NORTH 24° 48' 17”
WEST; THENCE WESTERLY 24.03 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 5° 03' 44” OF THE POINT OF
BEGINNING.
4630 Campus Drive
Newport Beach, CA
427-111-06 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 15 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 190, PAGES 11 TO 13 OF MISCELLANEOUS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPTING THEREFROM, ANY AND ALL OIL, OIL RIGHTS,
MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND INCLUDING THE
127
ADDRESS APN LEGAL DESCRIPTION
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT HOWEVER, THE RIGHT TO DRILL MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OF THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED BY THE IRVINE COMPANY RECORDED FEBRUARY 19 ,
1993 AS INSTRUMENT NO. 93-107967, OFFICIAL RECORDS.
PARCEL 2:
NONEXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
INSTRUMENT ENTITLED “AM ENDED AND RESTATED
DECLARATION OF ACCESS EASEMENTS (MACARTHUR/CAMPUS)
DATED MARCH 25, 1992 RECORDED APRIL 16, 1992 AS
INSTRUMENT NO. 92-247260, IN THE OFFICE RECORDS OF ORANGE
COUNTY, CALIFORNIA.
PARCEL 3:
NONEXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
INSTRUMENT ENTITLED “ RECIPROCAL EASEMENT AGREEMENT
AND CONSENT” DATED OCTOBER 14, 1999 RECORDED NOVEMBER
19, 1999 AS INSTRUMENT NO. 19990805278, AND AMENDED BY THE
CERTAIN DOCUMENT ENTITLED “WAIVER AND AMENDMENT TO
RECIPROCAL EASEMENT AGREEMENT” DATED AUGUST 24, 2015
RECORDED AUGUST 28, 2015 AS INSTRUMENT NO. 2015000446662
IN THE OFFICE RECORDS OF ORANGE COUNTY, CALIFORNIA.
4525, 4533 and
4647 MacArthur
Boulevard
Newport Beach, CA
427-111-09 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 13 OF TRACT NO. 5169, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP RECORDED IN BOOK 190, PAGE(S) 11 TO 13 INCLUSIVE, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS
BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFORE AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
128
ADDRESS APN LEGAL DESCRIPTION
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN
THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION RECORDED APRIL 16, 1992.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR
INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR,
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR
WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND
POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE
SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY
OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR CONTRACTUAL, BUT WITHOUT, HOWEVER, ANY
RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE
EXERCISE OF SUCH RIGHTS, AS RESERVED IN DEED FROM THE
IRVINE COMPANY, A MICHIGAN CORPORATION RECORDED APRIL
16, 1992.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
INSTRUMENT ENTITLED “DECLARATION OF ACCESS EASEMENTS
(MACARTHUR/CAMPUS)” DATED JANUARY 30, 1992 AND
RECORDED FEBRUARY 20, 1992 AS INSTRUMENT NO. 92 -101692,
OFFICIAL RECORDS AND AMENDED BY DOCUMENT RECORDED
APRIL 16, 1992 AS INSTRUMENT NO. 92-247260, OFFICIAL
RECORDS, IN THE OFFICIAL RECORDS OF ORANGE COUNTY,
CALIFORNIA.
PARCEL 3:
NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN
INSTRUMENT ENTITLED “DECLARATION OF ACCESS EASEMENTS
(BIRCH/MACARTHUR)” DATED JANUARY 30, 1992 AND RECORDED
FEBRUARY 20, 1992 AS INSTRUMENT NO. 92-101691 OFFICIAL
RECORDS AND AMENDED BY DOCUMENT RECORDED APRIL 16,
1992 AS INSTRUMENT NO. 92-247259 OFFICIAL RECORDS IN THE
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
4320 Campus Drive
Newport Beach, CA
427-121-06 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE
CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE
129
ADDRESS APN LEGAL DESCRIPTION
OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 28 OF TRACT NO. 3201, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP RECORDED IN BOOK 130, PAGES 25 THROUGH 30, INCLUSIVE
OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS,
MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE
SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR
GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR
MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED BY
THE IRVINE COMPANY, A MICHIGAN CORPORATION, BY DEED
RECORDED MAY 6, 1994 AS INSTRUMENT NO. 94-317183 OF
OFFICIAL RECORDS.
130
EXHIBIT B
SITE MAP
131
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City of Newport BeachGIS DivisionMay 29, 2020
Site Map - Newport Airport Village
(PA2014-225)
Legend
Project Area
65 JWA CNEL
JWA Safety Zones
City Boundary
(DA2014-003)
132
Attachment No. PC 2
Figure LU22 of the General Plan Land
Use Element
133
INTENTIONALLY BLANK PAGE134
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LAND USE POLICY
CITY of NEWPORT BEACHGENERAL PLAN
PROJECT NUMBER: 10579-01
Source: City of Newport Beach and EIP Associates
P A C I F I C O C E A N
?sE
A°E
%&l(
FIGURE LU22AIRPORT AREA
0 500 1,000250Feet
7N
Commercial and OfficeCUnderlying Uses: Office, Hotel, Supporting Retail,Residential Village: Housing and Mixed-Use(with Guidelines for Design and Development)
A B Airport-Supporting Businesses
Land UseDelineator Line
Highway
65 CNEL NoiseContour
!Refer to anomalytable
ConceptualDevelopmentPlan Area
Sub-Area
Figure_LU22_Airport_Area.mxd February/2011 135
INTENTIONALLY BLANK PAGE136
Attachment No. PC 3
Fiscal Analysis
Fiscal Analysis Fiscal Analysis Fiscal Analysis
137
INTENTIONALLY BLANK PAGE138
3527 Mt. Diablo Blvd. #248, Lafayette, CA 94549 ◼ Tel 925.934.8712
www.adeusa.com
MEMO
TO: Gregg Ramirez, Principal Planner
City of Newport Beach
FROM: Doug Svensson, AICP
DATE: May 8, 2020
SUBJECT: Fiscal Analysis for Newport Airport Village Project
INTRODUCTION
The fiscal analysis uses the Newport Beach Fiscal Impact Model to help calculate revenue and cost
impacts of the proposed project. This model was initially developed in support of the General Plan
Update, which was adopted in 2006.1 The model has been updated to reflect Fiscal Year 2019-2020
costs and revenues from the Newport Beach City Budget. The fiscal impact model calculates public
service impacts for specific land uses that support the residential population, the employment base
and the visitor population in Newport Beach. It also calculates the public revenues that each type of
land use typically generates for the City, including property taxes, sales taxes and other taxes as well
as a variety of user charges and fees.
The fiscal impact model is designed to calculate the average cost of public services required by new
development, on the assumption that new development affects City services in approximately the
same way that existing development does. The model nets out certain costs that are unlikely to
change with expansion of City government, such as the number of City Department Directors and
Division managers, as well as the City Council and City Clerk expenditures, but otherwise assumes
that City administrative support and overhead tends to increase as City government activities grow to
provide services to an expanding population and employment base. Over the long term, this is clearly
the dynamic that local governments experience. In the short term, development projects may have
lower or higher cost impacts depending on the existing capacity of City services to accommodate more
1 A technical description of the fiscal impact model may be found in: Applied Development Economics, Fiscal Impact
Analysis and Model, Newport Beach General Plan Update, January 2004.
139
A p p l i e d D e v e l o p m e n t E c o n o m i c s | P a g e 2
development, and the level of expenditure needed to expand services incrementally if existing
capacity is not available.
PROJECT DESCRIPTION
The proposed project would convert 61,000 sq. ft. of retail commercial development potential to 444
residential units, of which 37 would be affordable to very low income households. The project is part
of a 16.46 acre site in the Airport Area located on Birch Street, Campus Drive and MacArthur Blvd.
Under the current General Plan, 329 of the proposed dwelling units are already included as part of a
pool of 1,650 units that may be exchanged for the conversion of non -residential floor area to dwelling
units.
In order to calculate the fiscal effects of the proposed changes, it is necessary to estimate certain
socio-economic characteristics of the land uses, including population and employment, assessed value
and taxable sales. 2019 Census data indicates that the average household size in the City of Newport
Beach is 2.27 persons. With 444 units planned, the total population in the project is estimated at
1,008 persons.
The assessed value for the project has been derived from a review of multi-family property sales in
2019-2020 in Newport Beach, in combination with a review of Zillow rent indexes for Newport Beach
over the past year. Overall rent levels in Newport Beach have increased about 6% in the past year,
after several years of increases in the 2%/yr. range. For this analysis, we have estimated the property
values using an income capitalization approach. The resulting property values range from $565 per sq.
ft. to $740 per sq. ft. as shown in Table 1. The assessed values for affordable units are discounted
from market rates based on the difference between affordable and market rate rents. The total
residential assessed value in the project is estimated at $239.2 million, for an average of $538,700
per unit, including the affordable units. This approach assumes that the affordable units remain in
private ownership and are counted in the tax rolls. If the units are sold to a tax-exempt non-profit or
governmental organization, the total project assessed value would be reduced by $11.1 million.
The analysis uses the rent levels by unit type to estimate household income and taxable retail
spending, as shown in Table 2. We assume that rent comprises 30 percent of household income. We
then use a retail demand model to calculate the portion of income normally spent on taxable retail
sales. We have assumed for purposes of these calculations that households would spend two -thirds of
their annual retail budget in Newport Beach, and the remaining one -third would be spent at retail
centers in other cities or on out-of-town trips. The City receives sales tax at the rate of one percent of
taxable sales.
For the 61,000 sq. ft. retail commercial center, the analysis assumes 80 percent of the building space
would be occupied by retail or restaurant uses and 20 percent by service commercial businesses,
which may include personal care salons, repair services, fitness centers or insurance and retail estate
offices. This is typical of the commercial mix in Newport Beach overall. The building space is valued at
$300 per sq. ft. based on a review of similar property records and the space is estimated to generate
$535 per sq. ft. in taxable sales.
140
A p p l i e d D e v e l o p m e n t E c o n o m i c s | P a g e 3
TABLE 1:
ESTIMATED ASSESSED VALUES FOR THE RESIDENTIAL UNITS
IN THE NEWPORT AIRPORT VILLAGE PROJECT
UNIT TYPE SIZE
MKT RATE AFFORDABLE
TOTAL
UNITS
TOTAL
ASSESSED
VALUE
NO. OF
UNITS AV/SQ.FT.
NO. OF
UNITS AV/SQ.FT.
Studio 600 33 $650 3 $400 36 $13,590,000
1 Bdrm 750 227 $740 21 $400 248 $132,370,000
2 Bdrm 1,075 147 $565 13 $290 160 $93,238,333
Total 407 37 444 $239,198,333
Source: ADE, Inc., based on property transactions downloaded from CoreLogic ListSource, the Zillow Rent Index for
Newport Beach, and multi-family capitalization rates for Orange County provided in CBRE North America Cap Rate
Survey, Second Half 2019.
TABLE 2:
ESTIMATED HOUSEHOLD INCOME AND RETAIL TALES TAX
UNIT
TYPE
MARKET RATE AFFORDABLE
RENT
LEVELS
INCOME
@30%
SALES
TAX
RENT
LEVELS
INCOME
@30%
SALES
TAX
Studio $1,830 $73,189 $5,178 $1,121 $44,850 $288
1 Bdrm $2,366 $94,643 $46,129 $1,281 $51,250 $2,271
2 Bdrm $2,818 $112,733 $35,449 $1,441 $57,650 $1,648
Total $86,757 $4,207
Source: ADE, Inc.
FISCAL IMPACTS
The analysis, summarized in Table 3 below, estimates the current fiscal impact of the General Plan
permitted retail commercial center and compares it to the projected fiscal impact of the proposed
Newport Airport Village Project. The proposed project generates much more property tax, but less
than one-third of the sales tax of the planned commercial use on the site. Overall, though, the
proposed residential project generates nearly double the total revenues that could be expected from
the planned commercial center, at $799,500 compared to $444,300.
141
A p p l i e d D e v e l o p m e n t E c o n o m i c s | P a g e 4
TABLE 3:
PROJECTED FISCAL IMPACT OF THE NEWPORT AIRPORT VILLAGE PROJECT COMPARED TO THE
PLANNED RETAIL COMMERCIAL CENTER
Budget Category
Annual Revenues/Costs
Planned
Commercial
Newport
Airport Village Difference
REVENUES
GENERAL FUND
Property Tax $32,025 $418,597 $386,572
Property Tax in lieu of Sales Tax $3,232 $42,245 $39,013
Sales Tax $326,527 $90,964 ($235,563)
Transient Occupancy Tax $0 $0 $0
Franchise Fees $7,191 $20,528 $13,338
Business Licenses $12,072 $7,815 ($4,258)
Other Intergovernmental $2,197 $10,032 $7,835
Charges for Service $19,428 $88,703 $69,276
Fines, Penalties, and Forfeitures $4,144 $18,920 $14,776
Licenses and Permits $577 $2,636 $2,059
Use of Property $13,906 $63,493 $49,587
Other Revenue $1,080 $4,931 $3,851
Interest Income $1,843 $3,355 $1,512
SUBTOTAL GENERAL FUND $424,223 $772,220 $347,997
GAS TAX $327 $27,028 $26,701
MEASURE M $19,763 $264 ($19,498)
SUBTOTAL OTHER FUNDS $20,090 $27,292 $7,202
TOTAL REVENUE $444,313 $799,513 $355,200
EXPENDITURES
GENERAL FUND General Government $19,048 $103,953 $84,905
Police $101,551 $331,432 $229,882
Fire $52,852 $269,117 $216,265
Public Works $50,355 $229,909 $179,554
Community Development $3,336 $15,231 $11,895
Community Services $0 $289,978 $289,978
CIP Streets $27,056 $6,500 ($20,556)
Other CIP Projects $2,564 $11,704 $9,141
SUBTOTAL GENERAL FUND $256,760 $1,257,825 $1,001,065
GAS TAX $14,240 $3,421 ($10,819)
MEASURE M $19,949 $4,789 ($15,160)
SUBTOTAL OTHER FUNDS $34,189 $8,210 ($25,979)
TOTAL EXPENDITURES $290,949 $1,266,035 $975,086
NET (COST)/REVENUE $153,364 ($466,523) ($619,887)
Source: ADE, Inc. Note: Totals may not add due to rounding.
However, the proposed project would likely require a much higher level of services. The 2014 Land
Use Element Amendment Supplemental EIR indicates that the proposed project would not create
adverse impacts on City services. However, the level of service needed for residential development is
typically higher than for retail commercial development. Therefore, the fiscal analysis assumes there
would need to be an increase in City staff costs for most City services. Based on City service level
standards as reflected in the fiscal model, police protection costs for the residential population are
about three times that of the planned retail use, while fire protection and emergency services would
be more than five times higher. In addition, the residential project would require parks and recreation,
library and senior services provided by the City Recreation and Senior Services Department, which are
142
A p p l i e d D e v e l o p m e n t E c o n o m i c s | P a g e 5
generally not used by retail uses. The retail center does produce higher costs for streets maintenance,
reflected in the Streets CIP, the gas tax and Measure M, based on assumptions in the fiscal model
about relative traffic generation between residential and retail uses. Overall, City costs are about four
times higher for the proposed residential project than for the planned retail use. The proposed project
would generate an annual net fiscal cost to the City of about $466,500, as compared to the estimated
fiscal surplus from the planned commercial of $153,400.
CONCLUSION
The proposed residential use of the site would require a higher level of City services than the
commercial retail center and would produce a negative annual cost/revenue balance of $619,887
based upon the model. However, the General Plan contemplated the conversion of non-residential
space to 1,650 dwelling units in the Airport Area. With some of this conversion capacity utilized on this
site, an equivalent 61,000 sq. ft. of commercial development capacity would remain in place at other
locations in the area. Overall, the 2006 General Plan increased development potential for commercial
and lodging uses substantially, in addition to the new residential units it would permit. The net impact
of the growth in land uses at buildout of the General Plan compared to existing land uses in 2006
when the plan was adopted, would result in a positive fiscal impact for the General Fund of $21.7
million per year.2 Therefore, the incremental change requested in this project application would not
significantly change the fiscal health of the City in relation to the overall fiscal benefit of the
implementation of the General Plan citywide.
2 Applied Development Economics, Fiscal Impact Analysis Land Use Element Amendment, April 4, 2014. p. 3.
143
PA2014-225
Planning
Commission
June 4, 2020
Newport
Airport
Village
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Vicinity Map
2
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Area Map
Community Development Department -Planning Division 3
John Wayne Airport
Office
Car rental
Retail
Office
Retail
Hotel/Retail
Car Wash/Restaurant
Office
Office
Car Rental
Car Rental
Office
Office
Restaurant
Retail
Office
Crossings
Mixed-Use
Hotel
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Site
Overview
Community Development Department -Planning Division 4
16.46 acres located in Campus Tract in
the Airport Area
O.5 FAR (358,000 sq. ft.)
Exiting uses:
Retail, service and restaurants
Professional and medical office
Vehicle rental facilities (office, storage,
service
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Requested
Approvals
Community Development Department -Planning Division 5
General Plan Amendment
Change the land use designation from AO to MU-H2
Waiver of two general plan polices
Charter Section 423 -no increases, no vote of electorate
Zoning
Rezone property form OA to PlannedCommunity (PC)
Adopt new Newport Airport Village Planned Community
Development Plan (PCDP)
Development Agreement
Vested rights
Public benefits
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
AO Airport Office and Supporting Uses
0.5 Floor Area Ratio = 358,498 square feet
Office, commercial, vehicle rental, etc.
Zoning
OA Office-Airport
0.5 Floor Area Ratio =358,498 square feet
Office,commercial,vehicle rental,etc.
Current
Regulations
Community Development Department -Planning Division 6
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Project
Overview
Community Development Department -Planning Division 7
Commercial Floor Area -297,572 square feet
329 multi-unit dwellings (base units)
Affordable housing minimum requirement
•5% very low or 10 % low or 10 % moderate
Up to 115 density bonus DU’s
•35% density bonus maximum allowable
Future development to comply with PCDP development standards
•Height limits
•Parking
•Land use regulations
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
GPA
MU-H2
Residential
Community Development Department -Planning Division 8
Mixed-Use Horizontal
2—MU-H2
The MU-H2 designation applies to properties
located in the Airport Area. It provides for a
horizontal intermixing of uses that may include
regional commercial office, multi-family residential,
vertical mixed-use buildings, industrial, hotel rooms,
and ancillary neighborhood commercial uses.
Residential: maximum of
2,200 units as replacement
of existing office, retail,
and/or industrial uses at a
maximum density of 50 units
per adjusted gross acre, of
which a maximum of 550
units may be developed as
infill.
Nonresidential Uses: as
defined by Table LU2
Replacement Units –1,650 Maximum
•Conversion of underlying allowed uses into
dwelling units
•Trip neutral conversion
•61,926 square feet = 329 dwelling units
•Density bonus units not limited by GP
development limits
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Residential
Units
Status
Community Development Department -Planning Division 9
Note: Koll Center Residences not entitled
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
Amendment –
Airport Area
Community Development Department -Planning Division 10
86
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
Amendment –
Airport Area
Community Development Department -Planning Division 11
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
Amendment –
Anomaly 86
Community Development Department -Planning Division 12
Table LU2 Anomaly Locations
Anomaly
Number
Statistical
Area
Land Use
Designation
Development
Limit (sf)Development Limit (Other)Additional Information
86 L4 MU-H2
Nonresidential
development
297,572
329 dwelling units
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Community Development Department -Planning Division
Zoning District
Amendment
13
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Community Development Department -Planning Division
Zoning District
Amendment
14
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Community Development Department -Planning Division
Planned
Community
Development Plan
15
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Community Development Department -Planning Division
Development
Standards
16
Existing OA
Zoning
Planning Area 1 Planning Area 2
Floor Area 0.5 FAR
358,572 square feet 94,583 square feet
0.5 FAR
202,989 square feet
Dwelling Units Zero 329 plus up to 115
density bonus units
Zero
Setbacks Street(front): 15 feet
Side: 0
Rear: 0
Street (over 20 feet
high): 20 feet
Street (Less than 20
feet high): 10 feet
Side: 5 feet
Rear: 5 feet
(side and rear
measured from
property line)
Street: 15 feet
Side: 5 feet
Rear: 5 feet
(side and rear
measured from
property line)
Height Limit High Rise Height
Area: 300 feet
85 feet 37 feet
Parking Per Zoning Code Per Zoning Code Per Zoning Code
Architectural design
Considerations
No Yes Yes
Site Development
Review
Nonresidential
Greater than 10,000
SF
Mixed-use
Residential
Nonresidential Greater
than 10,000 sqft.
Nonresidential Greater
than 10,000 SF
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Airport Policy
and AELUP
Community Development Department -Planning Division 17
No Residential Development with 65 dba
CNEL noise contour
No residential development within Safety
Zone 3
JWA Airport Land Use Commission (ALUC)
review required
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Airport Policy
and AELUP
Community Development Department -Planning Division 18
Safety Zone 3 65 CNEL
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Community Development Department -Planning Division
Concept Plan –
Community
Development
Plan
19
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan Policy Waiver
LU 6.15.7. Overall Density
and Housing Types
Community Development Department -Planning Division 20
LU 6.15.7. Overall Density and Housing Types. Require
that residential units be developed at a minimum
density of 30 units and maximum of 50 units per net
acre averaged over the total area of each residential
village. Net acreage shall be exclusive of existing and
new rights-of-way, public pedestrian ways, and
neighborhood parks. Within these densities, provide
for the development of a mix of building types ranging
from townhomes to high-rises to accommodate a
variety of household types and incomes and to
promote a diversity of building masses and scales.
•493-832 dwelling units (16.46 acres)
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan Policy Waiver
LU 6.15.7. Overall Density
and Housing Types
Community Development Department -Planning Division 21
California Government Code Section
65915(e)(1)prohibits a city from applying a
development standard that will have the effect
of physically precluding the construction of a
development for projects that propose a density
bonus.
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan Policy Waiver
LU 6.15.7. Overall Density
and Housing Types
Community Development Department -Planning Division 22
Development Standard Limitations:
•65 dba CNEL boundary
•Safety Zone 3 boundary
Results of Limitations:
•Area for residential limited to 6.02 acres
•46 du/acre in Planning Area 1
Staff believes this rule applies and the waiver is
appropriate.
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
Policy Waiver
LU 6.15.13 Neighborhood
Parks Standards
Community Development Department -Planning Division 23
•Specific to the Airport Area
•Ensure adequate park facilities in the
Airport Area
•Allows City to waive requirement and
requires payment of pay in-lieu fee
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
Policy Waiver
LU 6.15.13 Neighborhood
Parks Standards
Community Development Department -Planning Division 24
LU 6.15.13 Neighborhood Parks Standards. To provide a focus and identity for the
entire neighborhood and to serve the daily recreational and commercial needs of
the community within easy walking distance of homes, require dedication and
improvement of at least 8 percent of the gross land area (exclusive of existing
rights-of-way) of the first phase development in each neighborhood, or ½ acre,
whichever is greater, as a neighborhood park. This requirement may be waived
by the City where it can be demonstrated that the development parcels are too
small to feasibly accommodate the park or inappropriately located to serve the
needs of local residents, and when an in-lieu fee is paid to the City for the
acquisition and improvement of other properties as parklands to serve the
Airport Area.
In every case, the neighborhood park shall be at least 8 percent of the total
Residential Village Area or one acre in area, whichever is greater, and shall have a
minimum dimension of 150 feet. Park acreage shall be exclusive of existing or
new rights-of-way, development sites, or setback areas. A neighborhood park
shall satisfy some or all of the requirements of the Park Dedication Ordinance, as
prescribed by the Recreation Element of the General Plan.
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
General Plan
Policy Waiver
LU 6.15.13 Neighborhood
Parks Standards
Community Development Department -Planning Division 25
•Proximity to JWA
•Lack of area outside 65 CNEL & Safety
Zone 3
•Nearby airport support uses
•Limited future residences
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Development
Agreement
Community Development Department -Planning Division 26
•Term :15 years for residential, 20 years for
non-residential
•Public Benefit Fee: $6,000,000 in three
installments
•General Plan Policy Waiver In-Lieu Park
Fee: $2,500,000
•Public Safety Fee: $1,000,000 for Fire Life
Safety staffing,services,or equipment
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
CEQA Review
Addendum
Community Development Department -Planning Division 27
2006 General Plan Update Program EIR
•No Increase above approved General
Plan
•Adopted GP has less development than
what was studied
2014Land Use Element Supplemental EIR
•Increases of 329 DU’S and 238,000 sq.
ft. of office studied
No new impacts identified
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
What Next
Community Development Department -Planning Division 28
o July -Airport Land Use
Commission Public Hearing
o City Council Public Hearing
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
Gregg Ramirez,
Principal Planner
949-644-3219
gramirez@newportbeachca.gov
Community Development Department -Planning Division 29
Thank you!
Questions?
Planning Commission - June 4, 2020
Item 4a Additional Materials Presented at Meeting
Newport Airport Village (PA2014-225)
June 04, 2020
Planning Commission
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
RE: Agenda Item: 4. Newport Airport Village Planned Community (PA2014-225)
Dear Planning Commission Members:
The Kennedy Commission (the Commission) is a broad-based coalition of residents and community
organizations that advocates for the production of homes affordable for families earning less than
$20,000 annually in Orange County. Formed in 2001, the Commission has been successful in
partnering and working with Orange County jurisdictions to create effective housing and land-use
policies that has led to the new construction of homes affordable to lower income working families.
We have reviewed the staff report for the proposed Newport Airport Village Planned Community
rezoning of 16.46-acre site located at the northwest intersection of Macarthur Boulevard and Birch
Street near John Wayne Airport. The Commission would like to provide the City of Newport
Beach’s Planning Commission comments on the proposal. The proposed project would convert
61,000 sq. ft. of retail commercial development potential to 444 residential units, of which 37 (8%)
would be affordable to very low-income households.
The Commission is encouraged that the proposal will expand housing development to help the City
meet its future housing needs. We strongly urge the City and Planning Commission to study this
development opportunity area and allow for the Newport Airport Village Planned Community to
help with the Cities affordable housing goals and objectives for the upcoming planning period. We
strongly urge that a minimum of 15-20% of the units being planned for be affordable to low and
very low income and extremely low-income households. We would also ask that the City prioritize
the housing needs of large families of very low and extremely low income, who encounter
difficulties in finding decent, affordable housing in Orange County.
The Commission looks forward to partnering with the City to create to increase and preserve
affordable homes for lower income households in the City. If you have any questions, please free to
contact me at (949) 250-0909 or cesarc@kennedycommission.org.
Sincerely,
Cesar Covarrubias
Executive Director
www.kennedycommission.org
17701 Cowan Ave., Suite 200
Irvine, CA 92614
949 250 0909
Working for systemic change resulting in the production of homes affordable to Orange County’s extremely low-income households
Planning Commission - June 4, 2020
Item 4b Additional Materials Received After Deadline
Newport Airport Village (PA2014-225)