HomeMy WebLinkAbout05 - Summary Vacation of Certain Existing Public Sewer Easement Areas at 850 San Clemente DriveQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
September 26, 2023
Agenda Item No. 5
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Jason Joh, Associate Civil Engineer
jjoh@newportbeachca.gov
PHONE: 949-644-3323
TITLE: Resolution No. 2023-55: Summary Vacation of Certain Existing
Public Sewer Easement Areas at 850 San Clemente Drive
ABSTRACT:
The property owners of 850 San Clemente Drive are requesting that the City of Newport
Beach (City) summarily vacate certain existing public sewer easement areas across the
property that are not occupied by City -owned and maintained sewer facilities due to
relocation and/or removal of said facilities as part of the Vivante Newport Center
development. The sewer easement is no longer needed by the City.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Adopt Resolution No. 2023-55, A Resolution of the City Council of the City of Newport
Beach, California, Summarily Vacating a Portion of a Public Sewer Easement at
850 San Clemente Drive (Parcel 1 of Lot Merger No. LM2018-004);
c) Direct staff to process the summary vacation of said certain easement areas; and
d) Direct the City Clerk to have the Resolution and summary vacation documents
recorded by the Orange County Recorder.
DISCUSSION:
As a part of the redevelopment of the property located at 850 San Clemente Drive
(Building Permit X2019-2738), the property owner is requesting the City summarily vacate
certain existing public sewer easement areas within the property. The vacation of existing
sewer easement areas that are absent of active City facilities will address the project's
specific condition of approval regarding modifying existing easements (as described in
Attachment B — Resolution No. PC2019-021, Conditions of Approval Public Works
Department #125) and allow the property owner to obtain the Final Certificate of
Occupancy.
5-1
Resolution No. 2023-55: Summary Vacation of Certain Existing
Public Sewer Easement Areas at 850 San Clemente Drive
September 26, 2023
Page 2
In 1977, a 15-foot-wide public sewer easement was granted to the City by the
850 San Clemente Drive property owner (APN 442-261-05) for sewer purposes. An
existing 8-inch diameter sewer main that was constructed across the 850 and 856 San
Clemente Drive properties has historically provided sewer conveyance to said properties.
The actual date of construction is unknown but construction predated the 1977 grant of
easement as building plans dated 1977 show the sewer main as an existing facility.
During this time, the adjacent property to the west, 856 San Clemente Drive (APN 442-
261-17), was owned by the City. Years later the Newport Center Branch Library was
constructed on the 856 San Clemente Drive property. Subsequently through a change in
property ownership in 1999, a 15-foot wide public sewer easement was granted to the
City on the 856 San Clemente Drive property (APN 442-261-17) for the existing 8-inch
diameter sewer main crossing the property.
In 2020, a lot adjustment/merger (LM2018-004) combining the 850 San Clemente Drive
(APN 442-261-05) and 856 San Clemente Drive (APN 442-261-17) properties into a
single parcel (APN 442-261-24) was recorded. The 850 San Clemente Drive address is
used for the new parcel and existing public easements from the two subject properties
were retained in the lot merger with no modifications.
During construction of the Vivante Newport Center project, a large portion of the existing
8-inch sewer main was abandoned in place per the approved plans, leaving the affected
sewer easement areas unoccupied by any active City facilities. The remaining portion of
the existing 8-inch sewer main and respective easement towards the southwest corner of
the property is to remain (see Attachment C — Area Map).
Pursuant to the California Streets and Highway Code Section 8333, the City Council may
summarily vacate a public service easement when the easement has been superseded
by relocation, or determined to be excess by the easement holder, and there are no other
public facilities located with the easement.
Staff recommends the existing public sewer easement areas (as shown in Attachment C)
be summarily vacated to satisfy the condition of the California Streets and Highway Code
given that said easement does not have any public facilities within the easement. All
public utilities facilities are located within the public rights-of-way/easements.
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
5-2
Resolution No. 2023-55: Summary Vacation of Certain Existing
Public Sewer Easement Areas at 850 San Clemente Drive
September 26, 2023
Page 3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A
— Resolution No. 2023-55
Attachment B
— Resolution No. PC2019-021
Attachment C
— Vicinity Map
Attachment D
— Location Map
5-3
ATTACHMENT A
RESOLUTION NO. 2023- 55
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, SUMMARILY
VACATING A PORTION OF A PUBLIC SEWER
EASEMENT AT 850 SAN CLEMENTE DRIVE (PARCEL 1
OF LOT MERGER NO. LM2018-004)
WHEREAS, the City Council ("City Council") of the City of Newport Beach ("City"),
pursuant to Chapter 4 of the Public Streets, Highways and Service Easements Vacation
Law, Section 8330 et seq. of the California Streets and Highways Code, is authorized to
summarily vacate a public service easement when the easement has not been used for
the purpose for which it was dedicated or acquired for five consecutive years immediately
preceding the proposed vacation; the date of dedication or acquisition is less than five
years, and more than one year, immediately preceding the proposed vacation and the
easement was not used continuously since that date; or the easement has been
superseded by relocation, or determined to be excess by the easement holder, and there
are no other public facilities located within the easement;
WHEREAS, the property owner of 850 San Clemente Drive ("Property") has
requested the City vacate a section of a 15-foot public sewer easement ("Easement"),
which section is legally described in Exhibit "A" and shown in Exhibit "B", from the
Property, with another section of the Easement, also shown in Exhibit "B," to remain;
WHEREAS, the segment of the 8-inch sewer main in the section of the Easement
proposed for vacation was abandoned in place as part of the Vivante Newport Center
project, there are no active City facilities in that section of the Easement, and thus that
section of the Easement is unnecessary for future sewer purposes; and
WHEREAS, the City Council, having reviewed and considered the various
elements of the City's General Plan with respect to the proposed summary vacation of
the specified section of the Easement, has determined that the proposed summary
vacation is consistent with the General Plan.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council does hereby summarily vacate the section of the
Easement described in Exhibit "A" and shown in Exhibit "B" as the sewer easement area
to be vacated on the grounds that the portion of the Easement is excess and there are no
other public facilities therein.
Section 2: The City Clerk is hereby directed to record this resolution in the office
of the Orange County Recorder in accordance with Section 8336 of the California Streets
and Highways Code.
5-4
Resolution No. 2023-
Page 2 of 3
Section 3: That from and after the date the resolution is recorded, the portion of
the Easement described in Section 1 no longer constitutes a public service easement.
Section 4: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 5: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 6: The City Council finds the adoption of this resolution is not subject to
the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or
indirectly.
5-5
Resolution No. 2023-
Page 3 of 3
Section 7: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 26th day of September, 2023.
Noah Blom
Mayor
ATTEST:
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
7
✓tr ( _
aron C. Harp
City Attorney
Attachment(s): Exhibit A — Legal Description of Easement
Exhibit B — Map of Easement
5-6
EXHI 1T "A"
SEVVER EASDAENT 0:LlITCbldM
LECA.L DESCRIPTION
I`l THE CITY OF NEAP•ORT BEACH, COUNTY OF CRANvE. STATE OF CAUFNNIA, THOSE PORTIONS OF
':EL 1, .AS. DESCRIBED, IN LOT MERCER NO. LV 2018—w,04 RECCR,CjED JUNE 2. 2020 AS INSTRUVE'.T
t0200C-C-26944E OF CFFICIA.L RECORDS OF SAID CCQNTr, DESCRIBED IN PARCELS A5 FOLLOWS:
PARCEL
:TRI -f LAND 15.00 FEET IN WIDTH LYING 7.50 FEET CAN EACH SIDE OF THE FCLLQ?oING DES: RIHED
...El,TE-LI`.E
BEGINNING AT A POINT CAI THE EASTERLY LINE OF SAID PARCEL 1 DISTANT NORTH 10-37"47" EAST
..00 FEET FROM THE SOLTHEASTERLY CORNER OF SAID PARCEL 1,
THENCE a:)RTH 79'22'13" 'LEST K2.8`- FEET:
THENCE SOUTH 81'58'00" WEST 93 00 FEET T: µ. --LINT OF ENDING
THE ABOVE DESCRIBED STRIP OF LLNU 1 AL .: :;E:: �IBED AS A CITY OF NEWPORT BEACH E4ER
E�-E•IENT 1% THE DCvUMENT RECORCED LLiLY ID, ' t„ 1%4 BOOK 12296, PACE 1131 AND A
!I- i.`ITY OF NEWPORT BE.A'-H SE'AER EASEMENT IN THE DOCUVENT RECCRDEO JULY 28,
I' :T .1t.1ENT NO. 1999C550354 BOTH OF OFRCIAL REC,3RDS-
THE ALCOVE DESCRIBED PARCEL OF LAND C94TAINS 5,943 SQUARE FEET. MORE OR LESS.
'H: •'`• IN EXHRIT "B", ATTACHED HERETO AND BY THI°5 REFERENl:E VACE A P* T HEREOF,
THI E :::RIPTION WAS PREPARED BY ME OR UNDER MY OIRECTIC%, IN CONFORMANCE WITH THE
FE [ :1NAL LAND SuRvEYOR'S ACT,
' 8/31/23 0 0 n
a
'+il :HAEL R-ML-'Xf,. NL' 8 DATE �I
LICE'<=E E:x.'I;E1:: 12—. —23
P-i.GE t f?F
5-7
EXHIBIT "B"
SEWER EASEMENT QUITCLAIM
NORTHERLY LINE
PARCEL 1 I I
LM 2015-004 I I
I
I I
I I
I I
I II
PARCEL 1
LOT MERGER NO. LM 2018-004
I I
I I
INSTRUIVENT NO. 2020000269446
EASTERLY LINE
PARCEL 1 w
c',R ION OF EASEMENT EASEMENT TO BE L'M 2018-004
TO BE OUITCLAIMFD PER QUITCLAIMED PER DOC. :r
DOC. REC- 07/28/99 REC- 07/19/77 IN P D'g. T
AS INST'-?,-19990880354 BK. 12296, PG. 1131 PAR.
N 79 22'13' W 3G2.89'
S r SOUTHEASTERLY i 4
CORNER PARCEL 1
I w19b.B4' LM 2018-004
`0 !i 79'22'13' W 232.C9' -
SAN CLEME14TE GRIPE
\lP20R'1101 OF EASEMENT
r rREC, E07/28/99 ASC j
INSTR. 419990880354
NOTE:
TI-IS NIAP WAS COMPILED FROA1 RECORD
DATA PER PAI.B. 8118 - 9
PREPARED UNDER MY DIRECTION
I DATE: 6/1.3/23
C 30' 60, 120'
1 inch =60 fI_
LEGEND:
VVER UI CLAIMED NT AREA
TOBE Q
SE'oVER EASEMENT
TO REMAIN
P,0,6, POINT OF BEGINNING
PLAT TAIT & ASSOCIATES INC.
PAGE CITY OF NEWPORT BEACH Engineering- Surveying -Environmental
1 CIF 1 COUNTY OF ORANGE 701 PARKCENTER DRIVE, SANTA ANA, CALIFORNIA 92705
STATE OF CALIFORNIA TEL (714) 56D I
5-8
ATTACHMENT B
RESOLUTION NO. PC2019-021
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING CITY
COUNCIL ADOPTION OF ENVIRONMENTAL IMPACT REPORT
ADDENDUM NO. ER2016-002 AND APPROVAL OF GENERAL
PLAN AMENDMENT NO. GP2018-003, PLANNED COMMUNITY
DEVELOPMENT PLAN AMENDMENT NO. PC2018-001,
DEVELOPMENT AGREEMENT NO. DA2018-005, MAJOR SITE
DEVELOPMENT REVIEW NO. SD2018-003, CONDITIONAL USE
PERMIT NO. UP2018-019, AND LOT MERGER NO. LM2018-004
AND REVOCATION OF USE PERMIT NO. UP2005-017 AND
MODIFICATION PERMIT NO. MD2004-059 FOR THE VIVANTE
SENIOR HOUSING PROJECT, LOCATED AT 850 AND 856 SAN
CLEMENTE DRIVE (PA2018-185)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Nexus Development Corporation representing Vivante Newport
Center, LLC ("Applicant"), with respect to property located at 850 and 856 San Clemente
Drive, and legally described as Parcel 2 of Newport Beach Lot Line Adjustment No. 95-3
together with Parcel 2 of Resubdivision No. 501 ("Property").
2. The Applicant proposes the demolition of the existing Orange County Museum of Art
("OCMA") (23,632 square feet) and associated administrative office building (13,935
square feet) to accommodate the development of a 183,983-square-foot, six -story
combination senior housing (90-unit residential dwelling units) and memory care facility (27
beds). The approximately 2.9 acre site is located on San Clemente Drive opposite the
intersection with Santa Maria road.
3. The Applicant, requests the following approvals from the City of Newport Beach ("City")
General Plan Amendment — To amend Anomaly No. 49 to change the land use
category from PI (Private Institutions) to MU-H3 (Mixed -Use Horizontal). The
proposed amendment also includes 90 additional dwelling units and would reduce
the nonresidential floor area from 45,208 square feet to 16,000 square feet in Statistical
Area L1. Table LU1 is amended to reflect a total of 540 dwelling units authorized
within the MU-H3 land use designation.
• Planned Community Development Plan Amendment — To modify the San
Joaquin Plaza Planned Community Development Plan (PC-19) to include
development and design standards to allow for 90 senior dwelling units and 27
memory care beds. The Applicant also requests an increase in the height limit from
65 feet to 69 feet with 10 feet for appurtenances.
City of Newport Beach
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Planning Commission Resolution No. PC2019-021
Page 2 of 44
• Development Agreement — To provide public benefits should the Project be
approved pursuant to Section 15.45.020 (Development Agreement Required) of the
Municipal Code because the requested General Plan Amendment includes 50 or
more dwelling units and adds dwelling units within Statistical Area L1.
• Conditional Use Permit — To allow the operation of the proposed senior housing
and memory care facility, alcohol service for dining hall and lounge areas in the form
of a Type 47 (On Sale General) and Type 57 (Special On Sale General) Alcoholic
Beverage Control ("ABC"), and ensure land use compatibility.
• Major Site Development Review — To allow the construction of 90 senior dwelling
units and a 27-bed memory care facility and to ensure the site is developed in
accordance with the applicable planned community and zoning code development
standards and regulations pursuant to Newport Beach Municipal Code ("NBMC")
Section 20.52.080 (Site Development Reviews).
• Lot Merger — To merge the two existing parcels into one development site.
• Addendum to Environmental Impact Report (SCH#2016021023) — To address
reasonably foreseeable environmental impacts resulting from the legislative and
project specific discretionary approvals, the City has determined that an addendum
to a previously certified Environmental Impact Report ("EIR") is warranted pursuant
to the California Environmental Quality Act ("CEQA").
4. The Property is designated PI (Private Institutions) by the General Plan Land Use Element
and is located within the PC-19 (San Joaquin Plaza Planned Community) Zoning District.
5. The Property is not located within the coastal zone; therefore, a coastal development
permit is not required.
6. A study session was held on April 18, 2019, 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. A public hearing was held on July 18, 2019 in the Council Chambers at 100 Civic Center
Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in
accordance with the Ralph M. Brown Act and Chapter 15 of the 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.
On November 29, 2016, the City Council adopted Resolution No. 2016-126 certifying
Environmental Impact Report No. ER2016-002 for the Museum House Project and
approving a Mitigation Monitoring and Reporting Program ("MMRP") that was prepared
in compliance with the California Environmental Quality Act ("CEQA") set forth in the
08_10_18 Cityof Newport Beauty _
5 10
Planning Commission Resolution No. PC2019-021
Paqe 3 of 44
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. The Project reviewed under the EIR
included a General Plan amendment, Planned Community Development Plan
amendment, tentative vesting tract map, major site development review, traffic study,
and development agreement to allow demolition of the existing 23,632-square-foot
OCMA building to accommodate the development of a 25-story, 100-unit residential
condominium building with two levels of subterranean parking on a two -acre site
("Original Project").
2. The Applicant proposes to include additional land area to the Project site (856 San
Clemente Drive), resulting in the demolition of the 23,662-square-foot OCMA and
supporting administration offices building totaling approximately 37,567 square feet, and
construction of a 183,983-square-foot, six -story senior housing development (90
residential dwelling units) and memory care facility (27 beds). Due to these proposed
changes compared with the Original Project considered in the EIR, 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 State
CEQA Guidelines. The City retained PlaceWorks to prepare the Addendum. A revised
Mitigation Monitoring and Reporting Program ("MMRP") was also prepared, and all
applicable mitigation measures from the previous MMRP were included.
3. The following environmental topics were identified as potentially affected by the
implementation of the proposed Project: Aesthetics, Air Quality, Cultural Resources,
Geology/Soils, Greenhouse Gas Emissions, Hazards/Hazardous Materials, Hydrology
and Water Quality, Land Use/Planning, Noise, Population and Housing, Public Services
recreation, Transportation/Traffic, and Utilities and Sewer Services. These topics were
the subject of the Draft EIR analysis, and potential impacts were identified. The
document includes mitigation measures to reduce the potentially significant adverse
effects to a less than significant level related to Air Quality, Cultural Resources, Geology
and Soils and Transportation/Traffic.
4. The noise analysis concluded that even with nine mitigation measures, the construction -
related noise impact would be significant and unavoidable. In particular the impact is
due to the proximity of the apartments to the north of the site which will be occupied prior
to the start of construction. The nine mitigation measures address vehicle and
equipment maintenance and the erection of a temporary sound barrier/curtain between
the construction site and apartments. All mitigation measures are identified in the
Mitigation Monitoring and Reporting Program, which is included as "Exhibit B." Although
the proposed Project requires less excavation and grading and has a shorter
construction period, all previously identified noise mitigation will be applied.
5. On the basis of the entire environmental review record, the Project will not result in any
new significant impacts that were not analyzed in the EIR for the Original Project, nor will
the Project cause a substantial increase in the severity of any previously identified
environmental impacts. The potential impacts associated with this Project would either
be the same or less than those described in the EIR. In addition, there are no substantial
°°°° City of Newport Beach ,,,
Planning Commission Resolution No. PC2019-021
Paae 4 of 44
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 the
EIR, 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 EIR is
the appropriate environmental documentation for the Project. In taking action on any of
the approvals for the proposed Project, the data presented in the EIR, as augmented by
the Addendum, and the MMRP are considered as part of the record.
6. The Addendum to the EIR, including the MMRP, is hereby recommended for adoption
by the City Council. The Addendum to the EIR 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.
7. 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. REQUIRED FINDINGS.
Amendments to the General Plan and Planned Community Development Plan (i.e., "Zoning
Code") are legislative acts and neither Chapter 20.66 (Amendments), Amendments of the
NBMC nor State Planning Law set forth any required findings for either approval or denial of
such amendments. Notwithstanding the foregoing, the General Plan amendment and Planned
Community Development Plan amendment are consistent with the General Plan and Zoning
Code as provided herein:
L General Plan Amendment (GPA)
The requested GPA from PI to MU-H3 does not eliminate existing or future land uses to
the overall detriment of the community given the site's size, location, and surrounding
uses. Numerous PI -designated properties are located throughout the City that can
accommodate privately owned facilities that serve the public. Additionally, cultural
institutions are allowed by right in eleven (11) commercial and mixed -use zoning
districts.
2. The requested GPA and resulting land use change are compatible with the surrounding
existing uses and planned land uses identified by the General Plan because the Project
would introduce a senior housing development (residential use) and memory care facility
(nonresidential use) into the Newport Center area, which is currently a regional center
of business and commerce that includes major retail, professional office, entertainment,
recreation, and residential developments in a master planned mixed -use area. The
Project would help to ensure adequate accommodations are available to the City's aging
"" City of Newport Beach ,,,
Planning Commission Resolution No. PC2019-021
Page 5 of 44
population and is in furtherance of the policies set forth in the General Plan Land Use
Element.
3. The requested GPA and resulting land use change is consistent with other applicable
land use policies of the General Plan as provided below.
a. 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.
The Project would replace the OCMA and the possibility to construct 45,208-square-
foot private institutional buildings with a facility to serve the aging population defined
as people over 60. This demographic comprises almost 22 percent of the City's total
population according to latest available Census Bureau data from 2018. At present,
there are approximately 752 units (congregate and independent living) and 265 beds
(convalescent care) in similar facilities citywide.
b. Land Use Element Policy LU3.2 (Growth and Change). Enhance existing
neighborhoods, districts, and corridors, allowing for re -use and infill with uses that
are complementary in type, form, scale, and character. Changes in use and/or
densitylintensity should be considered only in those areas that are economically
underperforming, are necessary to accommodate City's share of projected regional
population growth, improve the relationship and reduce commuting distance
between home and jobs, or enhance the values that distinguish Newport Beach as
a special place to live for its residents. The scale of growth and new development
shall be coordinated with the provision of adequate infrastructure and public
services, including standards for acceptable traffic level of service.
The Project would enhance Newport Center by providing an updated building that
complies with all current Building and Fire Codes. The change in use, increase in
dwelling units, and reduction of nonresidential floor area are appropriate given that
the Project will provide additional, adequate accommodations for the City's aging
population, which is continuing to grow and assist in meeting the City's housing
goals. Terms may be included in the development agreement to further ensure public
welfare and safety. The Project would result in a calculated overall increase of
average daily trips ("ADT") by 129, based on trip counts for the existing site and the
Institute of Transportation Engineers' ("ITE's") 2017 Trip Generation Manual, 10tn
Edition trip rate for a continuing care retirement community. The existing OCMA and
administrative office building generated a calculated 164 average daily trips, while
the Project is estimated to generate 367 ADT.
c. Land Use Element Policy LU 3.3 (Opportunities for Change). Provide opportunities
for improved development and enhanced environments for residents in the following
districts and corridors, as specified in Polices 6.3.1 through 6.22.7:
`""° City of Newport Beach 5-13
Planning Commission Resolution No. PC2019-021
Page 6 of 44
Fashion Island/Newport Center. expanded retail uses and hotel rooms and
development of residential in proximity to jobs and services, while limiting increases
in office development
The Project will provide additional, adequate accommodations for the City's aging
population, which is continuing to grow and assist the City in meeting housing goals.
The Project will be developed in close proximity to retail and service uses,
restaurants, entertainment, and recreation amenities present in Fashion Island and
would not result in increases in office development in the area.
d. Land Use Element Policy LU3.8 (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 JIMA 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 two hundred (200) feet above ground level to the ALUC for review.
The ALUC will review this Project prior to City Council consideration, consistent with
this Policy. Staff will report the ALUC's action to the City Council.
e. Land Use Element Policy LU 5.3.2 (Mixed -Use Building Location and Size of
Nonresidential Uses). Require that 100 percent of the ground floor street frontage of
mixed -use buildings be occupied by retail and other compatible nonresidential uses,
unless specified otherwise by policies LU 6.1.1 through LU 6.20.6 for a district or
corridor.
The proposed nonresidential portion of the Project consists of a 27-bed memory care
facility, which will be located on the second floor level of the building. While LU 5.3.2
requires nonresidential uses to be located on the ground floor level of mixed -use
buildings, the memory care facility use has a unique need to limit access of its
residents who could become a flight risk. For security purposes, this portion of the
development is located on the second floor level, while more common area amenities
and services that serve all residents of the Project will be located on the ground floor
and basement level potions of the building. This design, with common amenities at
the first floor level, is consistent with the intent of this policy to create a synergy for
residents and visitors to enter and utilize the building. All residents of the Project
(memory care residents must be accompanied by a staff member) will have the
opportunity to utilize these common area amenities that are located on the first floor
level.
f. Land Use Element Policy LU 5.3.3 (Parcels Integrating Residential and
Nonresidential Uses). Require that properties developed with a mix of residential and
nonresidential uses be designed to achieve high levels of architectural quality in
accordance with policies LU 5.1.9 and LU 5.2.1 and planned to ensure compatibility
among the uses and provide adequate circulation and parking. Residential uses
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should be seamlessly integrated with nonresidential uses through architecture,
pedestrian walkways, and landscape. They should not be completely isolated by
walls or other design elements. (Imp 2.1)
The Project integrates residential and nonresidential uses into one cohesive building.
The building design will provide a high level of architectural quality, utilizing materials
such as smooth -coat plaster walls, natural travertine stone, vinyl windows, metal
railings, window trims, and a porte-cochere. The nonresidential memory care facility
will be integrated and located within a portion of the second floor level of the building.
Residents of the memory care facility (accompanied by staff) will have the ability to
mingle and utilize the same common area amenities such as activity rooms, outdoor
gardens, seating areas, and dining areas that are provided for the rest of the senior
housing. The Project will be served by a 118-space surface level parking lot and the
number of parking spaces and circulation is designed to adequately accommodate
residents, visitors, staff, shuttles, deliveries, moving vehicles and emergency
vehicles.
g. Land Use Element Policy LU 5.3.6 (Parking Adequacy and Location). Require that
adequate parking be provided and is conveniently located to serve tenants and
customers. Set open parking lots back from public streets and pedestrian ways and
screen with buildings, architectural walls, or dense landscaping.
The Project will be served by a 118-space surface level parking lot and the number
of parking spaces and circulation is designed to adequately accommodate residents,
visitors, staff, shuttles, deliveries, moving vehicles and emergency vehicles. The
parking area is set back from San Clemente Drive and the adjacent sidewalk with
site landscaping along the street frontage.
h. Land Use Element Goal LU 6.14 (Newport Center/Fashion Island). A successful
mixed -use district that integrates economic and commercial centers serving the
needs of Newport Beach residents and the subregion, with expanded opportunities
for residents to live close to jobs, commerce, entertainment, and recreation, and is
supported by a pedestrian -friendly environment.
Refer to Fact in Support of Finding 3c.
Land Use Element Policy L U 6.14.2 (Newport Center f" MU-H3, " "CO-R, " "CO-M, "
and "RM" designations]). Provide the opportunity for limited residential, hotel, and
office development in accordance with the limits specified by Tables LU1 and LU2.
(Imp 2.1)
Refer to Fact in Support of Finding 3b and 3c.
j. Land Use Element Policy LU 6.14.4 (Development Scale). Reinforce the original
design concept for Newport Center by concentrating the greatest building mass and
height in the northeasterly section along San Joaquin Hills Road, where the natural
topography is highest and progressively scaling down building mass and height to
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follow the lower elevations toward the southwesterly edge along East Coast
Highway. (imp 2.1, 3.1, 4.1 )
The Project is located at the northwesterly portion of Newport Center. The existing
development in Newport Center is consistent with LU 6.14.4 as the majority of the
office towers over 200 feet and the Island Hotel are located in northeasterly section
in Blocks 500 and 600. The type and design of a structure, not just the use, are
important in determining if the bulk and scale of the building are appropriate for this
particular location. Additionally, per NBMC Section 20.30.060 (Height Limits and
Exceptions), height limits in planned communities are not bound by its limitations
provided that appropriate findings are made. The existing PC-19 (San Joaquin Plaza
Planned Community) development standards limit building height to 65 feet in height
while the proposed Project height is 68 feet 8 inches (with an additional 10 feet
allowed for appurtenances). The building design, bulk, and scale, is consistent with
the height and grade of other buildings located in the immediate vicinity of Newport
Center and will not create a substantial shade or shadow impact on adjacent
development such as Villas Fashion Island.
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 within Statistical Area L1. One prior GPA in Statistical Area L1
has been approved since 2009. The amendment results in a reduction of
nonresidential floor area (45,208 square feet to 16,000 square feet) and an
increase of 90 dwelling units. The conversion of the 16,000 square feet of
nonresidential floor area from private institutional use to a blended commercial
rate and the addition of 90 dwelling units for the proposed facility results in a net
increase of twenty-six (26) a.m. peak hour trips and a net increase of fifty-two
(52) p.m. peak hour trips. These increases are based on the trip generation rates
for the blended private institutions to blended commercial rate (for the
convalescent care/memory care component) and residential apartment units (for
senior housing/congregate care component), which are considered the best
available comparable land uses in Council Policy A-18.
b. As none of the thresholds specified by Charter Section 423 are exceeded, no
vote of the electorate is required if the City Council chooses to approve GPA No.
GP2018-003.
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
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preserving or mitigating impacts to cultural resources. The City received comments from
the NAHC indicating that four tribal contacts should be provided notice regarding the
proposed amendment. The tribal contacts were provided notice on April 4, 2019.
California Government Code Section 65352.3 requires notification 90 days prior to
Council action to allow tribal contacts to respond to the request to consult. The City was
not contacted by any tribal contacts during this 90 day period.
U. Planned Community Development Plan Amendment
The proposed amendment to the PC-19 Zoning District meets the intent and purpose
for a PC as specified in NBMC Section 20.56.010 (Planned Community District
Procedures, Purpose). The Property is located in the northwest portion of Newport
Center, which is a regional center of business and commerce that includes major retail,
professional office, entertainment, recreation, and residential development in a master
planned mixed -use area. The amended PC-19 Development Plan is complementary to
the surrounding development, including the development standards and allowed uses
of the adjoining PC-56 (North Newport Center Planned Community) Zoning District.
2. The proposed amendment to the PC-19 Development Plan would apply appropriate site
and Project -specific setbacks, intensity, and height limits to the Project given the site's
urban location and all required parking is provided on site. The Property is currently fully
developed and does not support any natural resources. All potential environmental
impacts associated with the Project are appropriately addressed through standard
building permit procedures and the mitigation measures identified in the EIR addendum.
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-19 Development Plan.
III. Height Increase
NBMC Section 20.30.060(C)(3) (Height Limits and Exceptions, Required Findings) requires
findings A through D to be made to adopt a Planned Community District with an increase in the
height of the structure above the base height limit. -
Finding:
A. The Project Applicant is providing additional project amenities beyond those that are
otherwise required. Examples of project amenities include, but are not limited to:
i. Additional landscaped open space;
ii. Increased setback and open areas; and
iii. Enhancement and protection of public views, and
Facts in Support of„ -Finding:
The building design provides a high level of design with open space, landscape,
residential amenities, and building setbacks that are similar or greater than those
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required on adjoining properties. The Project provides 15,487 square feet of landscaped
area on -site and extensive common open space amenities including outdoor seating
areas, raised gardens and vegetable planters, bocce ball court, outdoor kitchen, dog
park, and putting green.
2. The Project provides setbacks ranging from 36 feet along the northern property nearest
to residential uses up to 94 feet at the San Clemente Drive street frontage.
3. The Project does not inhibit designated public view points or coastal view corridors as
identified in Figure NR3 of the General Plan. The nearest coastal view road occurs to
the southwest along Jamboree Road and views are oriented toward the ocean. The
Project will not be visible from this location. Further, the proposed building will fit into the
height and architectural context of other office buildings and development in the Newport
Center area.
Finding:
B. The architectural design of the project provides visual interest through the use of light
and shadow, recessed planes, vertical elements, and varied roof planes,
Facts in Support of Finding:
The Project provides high quality architectural materials on the building fagade including
smooth -coat plaster walls, natural travertine stone, vinyl windows, metal railings, and
window trims.
2. The building is designed in an L-shape with a porte-cochbre located at the primary
building entrance along San Clemente Drive. This feature enhances the building entry
and provides visual interest at the most visible building fagade.
3. Juliet balconies for each unit will provide visual interest and building articulation
throughout the building.
4. The building style is complementary to surrounding office buildings in Newport Center
and the fagade is architecturally modeled after the office building located at 888 San
Clemente Drive.
5. The building's roofline provides a roof screen and mechanical wells to adequately
screen unsightly equipment and provide architectural variation at the exterior elevations.
Finding:
C. The increased height will not result in undesirable or abrupt scale changes or
relationships being created between the proposed structure(s) and existing adjacent
developments or public spaces. Where appropriate, the proposed structure(s) provides
a gradual transition to taller or shorter structures on abutting properties; and
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Facts in Support of Finding:
The proposed building height of 68 feet 8 inches is comparable to surrounding building
heights of 61 feet 9 inches at 888 San Clemente Drive, 65 feet at the Villas Fashion
Island, 80 feet at Pacific Life (700 Newport Center Drive), and 125 feet at 800 Newport
Center Drive. Further, these buildings allow an additional 10 feet for architectural
appurtenances, consistent with the proposed building height for the Project.
2. The Project height is cohesive with surrounding building heights particularly given the
site's grade elevations along San Clemente Drive, which range from 165 feet up to 189
feet. The proposed Project would be measured from the building entrance elevation at
181 feet.
Finding:
D. The structure will have no more floor area than could have been achieved without the
approval of the height increase."
Facts in Support of Finding:
The existing PC-19 (San Joaquin Plaza Planned Community) text does not establish a
floor area limit for the subject properties since it is currently designated for private
institutional land uses. The amended PC-19 text will establish a floor area consistent
with the proposed building area (approximately 184,000 square feet).
2. The proposed floor area could be achieved within the current 65-foot height limit if the
building footprint was enlarged. The proposed design with additional height affords
additional site area to provide code -required parking, circulation, and open space
amenities to serve the Project.
IV. Major Site Development Review
A site development review is required for the construction of five or more residential units
processed in conjunction with a mixed -use development. The site development review
analyzes the Project as a whole for compatibility with the site and surrounding land uses. In
accordance with NBMC Subsection 20.52.080(F) (Site Development Reviews, Findings and
Decision , the following findings and facts in support of such findings (E through G) are set
forth:
Finding:
E. The proposed development is allowed within the subject zoning district.
Fact in Support of Findin�t
The proposed Major Site Development Review for the approximately one hundred eighty
four thousand (184,000) square -foot Project is consistent with the proposed amendment
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to the PC-19 Development Plan, which would allow a residential care facility for the
elderly, subject to the approval of a conditional use permit. The Residential Care Facility
for the Elderly (RCFE) would be a combined memory care senior housing/assisted living
facility.
Finding:
F. The proposed development is in compliance with all of the following applicable criteria:
i. Compliance with this section, the General Plan, this Zoning Code, any applicable
specific plan, and other applicable criteria and policies related to the use or
structure;
ii. The efficient arrangement of structures on the site and the harmonious relationship
of the structures to one another and to other adjacent developments; and whether
the relationship is based on standards of good design;
iii. The compatibility in terms of bulk, scale, and aesthetic treatment of structures on
the site and adjacent developments and public areas,.
iv. The adequacy, efficiency, and safety of pedestrian and vehicular access, including
drive aisles, driveways, and parking and loading spaces;
v. The adequacy and efficiency of landscaping and open space areas and the use of
water efficient plant and irrigation materials; and
vi. The protection of significant views from public right(s)-of-way and compliance with
NSMC Section 20.30.100 (Public View Protection).
Facts in Support of Finding:
Refer to previously mentioned facts under Amendments (1 and !i), which discuss the
Project's consistency with the proposed MU-H3 General Plan land use designation and
the proposed amendment to PC-19 Development Plan.
2. The building will be set back a minimum of fifteen (15) feet from the San Clemente Drive
property line and five (5) feet from all other property lines. The Project is designed such
that the building is set back a minimum of approximately thirty-six (36) feet from the
adjacent residential property at the Villas Fashion Island to the north. The setback area
will be improved with parking areas and landscaping to help buffer the site from adjacent
uses and the public right-of-way.
3. The proposed structure will maintain a similar size and scale to that of the existing
adjacent buildings to the west and east along San Clemente Drive. The total gross floor
area will be no more than one hundred eighty-nine thousand (189,900) square feet,
which will be compliant with the maximum floor area allowed pursuant to the amended
San Joaquin Plaza PC.
4. The proposed structure complies with the post PC -amendment maximum height of sixty-
eight feet eight inches (68 feet 8 inches) as measured from finished grade to the top of
the uppermost ceiling. An additional ten (10) feet is allowed for roofing and mechanical
screening up to seventy-seven feet ten inches (77 feet 10 inches). All mechanical
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equipment on the rooftop will be screened in compliance with NBMC Subsection
20.30.020 (Buffering and Screening).
5. The proposed structure is required to comply with all Building and Fire Codes. The
facility is required to obtain a license from the Department of Social Services (DSS) of
the State of California for its operation.
6. The Project will be Italianate in appearance with building materials and finishes that
include smooth -coat plaster walls, natural travertine stone, vinyl windows, metal railings,
window trims, and a porte-cochere. The building style is complementary to surrounding
office buildings in Newport Center and the facade is modeled after 888 San Clemente
Drive.
7. Site access, including the new curb cut, drive aisles, driveways, parking, loading spaces,
and sight distance have all been reviewed by the Public Works Department for
adequacy, efficiency, and safety. The Project does not change any street parking
configurations as no parking is allowed on San Clemente Drive
8. The Project design complies with the required parking ratio of 1.2 parking spaces per
dwelling unit of congregate care/senior housing (i.e., 90 units multiplied by 1.2 = a
minimum of one hundred eight (108) parking spaces) and one parking space for every
three beds of memory care (i.e., twenty-seven (27) beds divided by three (3) = a
minimum of nine (9) parking spaces). A total of 118 parking spaces are provided on -
site.
9. All facility operations including delivery hours to the facility are limited by the conditions
of approval to help mitigate potential impacts to the adjacent residential neighbors.
10. The Project includes approximately 15,487 square feet of landscape area, which has
been designed to meet NBMC Chapter 14.17 (Water -Efficient Landscape) requirements
with respect to water efficiency.
11. Lighting of the building is conditioned to meet the requirements of the NBMC to mitigate
impacts to neighboring properties.
12. The visual simulations indicate that the Project does not have the potential to obstruct
public views from public view points and corridors, as identified on General Plan Figure
NR 3 (Coastal Views), to the Pacific Ocean, Newport Bay and Harbor, offshore islands,
the Old Channel of the Santa River (the Oxbow Loop), Newport Pier, Balboa Pier,
designated landmark and historic structures, parks, coastal and inland bluffs, canyons,
mountains, wetlands, and permanent passive open space. The Project is not located
near any public view points and there are no designated public views through or across
the site.
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Findin :
G. The proposed development is not detrimental to the harmonious and orderly growth of
the City, nor will it endanger, jeopardize, or otherwise constitute a hazard to the public
convenience, health, interest, safety, or general welfare of person residing or working in
the neighborhood of the proposed development.
Facts in Support of Finding:
The Project has been designed to ensure that potential conflicts with surrounding land
uses are minimized to the extent possible to maintain a healthy environment for both
businesses and residents by providing an architecturally pleasing building with
articulation and building modulation to enhance the urban environment consistent with
development in Newport Center.
2. The proposed building has been designed to accommodate and provide safe access for
emergency vehicles, delivery trucks, and refuse collections vehicles, as determined by
the City Traffic Engineer. Emergency, refuse, and delivery trucks will utilize the entry
drive off of San Clemente Drive at the southerly side of the Property. Secondary egress
and emergency access will be available through the access drive to the northeast. The
final size, design, location, and screening of the refuse enclosures will comply with the
requirements of NBMC Section 20.30.120 (Solid Waste & Recyclable Materials
Stora e), ensuring compatibility with the on --site and adjacent uses.
3. Conditions of Approval are included to help ensure any potential impacts are limited,
including, but not limited to:
a. Condition of Approval No. 12 limits delivery and commercial trash pick-up hours to
the facility to mitigate potential impacts to the adjacent neighbors.
b. Conditions of Approval Nos. 29 and 30 require all outdoor lighting to meet the
requirements of the Zoning Code, prohibiting light and glare spillage from the facility
to the adjacent properties. This will be reviewed in more detail as part of the building
permit plan check process.
c. The noise from a convalescent and/or congregate care facility is typically low.
Conditions of Approval Nos. 32 and 33 helps to ensure that the use will comply with
NBMC Chapter 10.26 (Community Noise Control).
4. The Project would introduce approximately one hundred fifty-three (153) new residents,
which is a nominal increase in the City's overall total population. However, these types
of facilities typically require more calls for emergency medical services than a residential
community of the same size. Terms may be included in the development agreement to
further ensure public welfare and safety.
5. The Project is located in close proximity to Fire Station 3, which will be available to
respond to medical emergency calls for the facility.
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6. The City has sufficient water supply to serve the Project. Site landscaping will adhere
to the requirements of NBMC Chapter 14.17 (Water -Efficient Landscaping).
7. The John Wayne Airport is located approximately 2.94 miles southeast of the Property
and is the nearest public airport. The Project is within the notification area of the Airport
Environs Land Use Plan ("AELUP") for John Wayne Airport. According to the notice
criteria tool, the Project is in proximity to a navigation facility and may impact the
assurance of navigation signal reception. However, many adjacent high rise buildings
exceed the height of the proposed Project. A "No Hazard" determination was provided
by the Federal Aviation Administration ("FAA"). The Project site also falls outside the 60
dBA Community Noise Equivalent Level contour line established by the AELUP and
would, therefore, not conflict with any land use compatibility issues related to noise.
Finally, the Project site does not fall within any of the AELUP Safety Zones, in which
certain land uses have been identified as incompatible and restricted. The General Plan
and PC amendments will first be forwarded to the ALUC for their review prior to the City
Council consideration.
8. The Project does not involve the use or manufacture of any hazardous substances that
could impact nearby development. Moreover, Project construction would comply with all
applicable laws and regulations governing application and disposal of any hazardous
materials discovered during construction.
9. Rooftop mechanical equipment is located within a mechanical equipment well and within
an equipment screen and is not visible from the public right-of-way.
10. The new construction complies with all Building, Public Works, Fire Codes, City
ordinances, and all conditions of approval.
11. A structure has existed at this location since 1976. The Project will improve the site with
construction that complies with all current requirements. The Project will nominally
increase the overall average daily trips ("ADT") by approximately one hundred twenty-
nine (129) per the existing site trip counts and the 2017 Institute of Transportation
Engineers ("ITE") Trip Generation Manual. The Public Works Department has reviewed
the proposed operational characteristics and determined that a traffic study is not
required to comply with the Traffic Phasing Ordinance.
12. The Project would replace the existing office buildings with a needed service for the
aging population, where persons over the age of 65 comprise almost twenty-two (22)
percent of the City's total population according to latest available US Census Bureau
data from July 1, 2018.
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V. Conditional Use Permit
The Applicant requests Type 47 (On Sale General) and Type 57 (Special On Sale General)
ABC licenses for alcohol service within designated dining hall and lounge areas of the senior
housing and memory care facility. In accordance with NBMC Section 20.48.030 (Alcohol Sales)
and Section 20.52.020(F) (Conditional Use Permits and Minor Use. Permits, Findings _and
Decision), the following findings and facts in support of such findings (H through M) are set
forth:
Finding:
H. The use is consistent with the purpose and intent of Section 20.48.030(C)(3) (Alcohol
Sales).
Facts in Support of Finding:
1. The following criteria has been considered:
a. The crime rate in the reporting district and adjacent reporting districts as
compared to other areas in the City.
The Part One Crimes Rate in Reporting District 39 (RD 39) is higher than the Part
One Crimes Rate for the City and adjacent districts due to the high concentration
of commercial land uses. However, with the introduction of the new residential
units, the crime rate is expected to decrease. The Police Department does not
object to this Project as conditioned.
b. The numbers of alcohol -related calls for service, crimes, or arrests in the
reporting district and in adjacent reporting districts.
Due to the high concentration of commercial land uses, the calls for service and
number of arrests are greater than adjacent Reporting Districts. The Police
Department does not consider the rate high because of the concentration of
restaurants and commercial uses within Fashion Island and the surrounding
North Newport Center. The Newport Beach Police Department has not previously
reported any calls for service to the subject property since the proposed use is
part of a new development.
c. The proximity of the establishment to residential zoning districts, day care
centers, hospitals, park and recreation facilities, places of worship, schools, other
similar uses, and any uses that attract minors.
The Project site is located in a senior housing facility and is intended to serve
residents and their guests. The complex is surrounded by commercial and
residential zoning districts and uses. The dining area for residents is located
inside of the building on the first and second floor levels. There are no day care
centers, hospitals, park and recreation facilities, places of worship, or similar uses
in the immediate vicinity.
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d. The proximity to other establishments selling alcoholic beverages for either off -
site or on -site consumption.
The per capita ratio of one license for every 12 residents is higher than all
adjacent reporting districts and the average citywide ratio. This is due to the
commercial nature of RD 39, which contains all of North Newport Center,
including Fashion Island.
e. Whether or not the proposed amendment will resolve any current objectionable
conditions.
The Project has been reviewed and conditioned to ensure that the purpose and
intent of NBMC Section 20.48.030 (Alcohol Sales) is maintained and that a
healthy environment for residents and businesses is preserved. The service of
alcohol is intended for the convenience of residents of the apartment complex
and their guests. Operational conditions of approval relative to the sale of
alcoholic beverages will help ensure compatibility with the surrounding uses and
minimize alcohol related impacts.
Finding.
The use is consistent with the General Plan and any applicable specific plan;
Fact in Support of Finding. -
The Project is consistent with the General Plan, as proposed to be amended. See all
Facts in Support of Findings 1 through 3 for the General Plan Amendment (1).
Finding:
J. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code;
Fact in Support_of Finding:
The Project complies with all NBMC and PC-19 development standards, as proposed
to be amended, including, but not limited to, height, floor area, parking, and landscaping.
See all Facts in Support of Findings 1 through 3 for the Planned Community
Development Plan Amendment (II).
Finding:
K. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity;
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Facts in Support of Finding:
The Project will replace an existing museum and associated administrative office
building with senior housing and a memory care facility. At present, a forty-five thousand
two hundred eight (45,208)-square-foot building could be constructed on the Property.
The Project improvements will modernize and comprehensively upgrade the general
appearance of the site.
2. The Property is located along San Clemente Drive in Newport Center. A new curb cut
will be created for site access and will be located directly across from Santa Maria Drive
and used as the primary entry and exit. Secondary egress and emergency access will
occur across an existing access drive at the northeast corner of the property.
3. The Property is immediately adjacent to professional office buildings to the west and
southeast, which are taller or comparable in height. Several residential buildings are
located in the immediate vicinity, with The Colony Apartments to the southwest and the
Villas Fashion Island to the northeast. These are permitted to have structures with a
maximum height of fifty (50) feet on a fifteen (15)-foot high podium and sixty-five (65)
feet, respectively with an additional 10 feet for appurtenances. The Project is a quasi -
residential use and complies with the maximum height limitations as identified in the
amended PC-19 Development Plan. It has been designed such that it will be compatible
with the adjoining land uses. All proposed building construction will be set back a
minimum of approximately thirty-six (36) feet from the property lines abutting the Villas
Fashion Island apartments. The main drive aisle, landscaping, and a perimeter site will
serve to further buffer those residential uses from the Project.
4. Condition of Approval No. 2 is included to limit the Project to 90 senior housing dwelling
units and 27 memory care beds, which will ensure the operation does not intensify.
5. See all Facts in Support of Finding G above.
Finding:
L. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical)
access and public services and utilities; and
Facts in Support of Finding:
1. The Property is currently developed with an access drive over the adjacent property at
888 San Clemente Drive. The Project will add its own driveway approach on San
Clemente Drive for Project access and a secondary access easement will be recorded
for egress and emergency vehicle access.
2. The Project provides adequate parking and circulation including turn -around areas for
deliveries. Conditions of approval are included to ensure compliance with all the
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circulation standards and the final plans are required to be reviewed and approved by
the Public Works Department.
3. Adequate emergency vehicle access has been incorporated into the Project design and
have been reviewed by the Fire Department. Conditions of approval are included to help
ensure compliance with all emergency vehicle access requirements and the final plans
are required to be approved by the Fire Department during plan check.
4. The City currently services the site with water and sewer via mains that run through San
Clemente Drive and Santa Barbara Drive out to Jamboree Road. The City has indicated
that the Project could be adequately served by its infrastructure. The Gas Company and
Southern California Edison will continue to service the site for gas and electrical through
existing connections.
Finding.-
M. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard
to the public convenience, health, interest, safety, or general welfare of persons residing
or working in the neighborhood of the proposed use.
Fact in Support of Finding:
See all Facts in Support of Finding G above.
Vi. Lot Merger
In accordance with Section 19.68.030(H) (Lot Mergers, Required Findings), the following
findings and facts in support of such findings (N through R) are set forth:
Finding:
N. Approval of the merger will not, under the circumstances of this particular case, be
detrimental to the health, safety, peace, comfort and general welfare of persons residing
or working in the neighborhood of such proposed use or be detrimental or injurious to
property and improvements in the neighborhood or the general welfare of the City, and
further that the proposed lot merger is consistent with the legislative intent of Title 19.
Facts in Support of Finding:
The Project consists of a single building site constructed across 850 and 856 San
Clemente Drive.
2. The Property is located within the PC-19 (San Joaquin Plaza Planned Community)
Zoning District, which is amended to accommodate the Project.
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3. The Project is consistent with the purpose and intent of Title 19 (Subdivisions) of the
NBMC, inasmuch as it will help to protect landowners and surrounding residents, and
will preserve the public health, safety, and general welfare of the City. It will also be
consistent with the policies and provisions of the General Plan, as discussed under
Subsection I, Facts 1-3 and Finding P.
4. All building improvements are required to comply with applicable NBMC regulations and
City policies.
Finding:
O. The lots to be merged are under common fee ownership at the time of the merger.
Fact in Support of Finding:
1. The Properties, described in Section 1 of this Resolution, are under common fee
ownership by Vivante Newport Center, LLC, as evidenced by the Title Report submitted
with the application.
Finding:
P. The lots, as merged, will be consistent or will be more closely compatible with the
applicable zoning regulations and will be consistent with other regulations relating to the
subject property including, but not limited to, the General Plan and any applicable
Coastal Plan or Specific Plan.
Facts in Support of Finding:
The General Plan Land Use Element designation will be amended for this parcel from
PI (Private Institutions) to MU-H3 (Mixed -Use Horizontal), which is consistent with the
surrounding block in Newport Center. This area is intended to provide for horizontal
intermixing of regional commercial, office, hotel, multi -family residential, and ancillary
commercial uses. The Project, which consists of senior housing (an attached multi-
family residential use) and memory care facility (a nonresidential use), is consistent with
the MU-H3 land use designation.
2. The Project is consistent with the following General Plan Land Use Element Policies:
a. LU 4.2 - Prohibition of New Residential Subdivisions. Prohibit new residential
subdivisions that would result in additional dwelling units unless authorized by an
amendment of the General Plan (GPA). Lots that have been legally merged through
the Subdivision Map Act and City Subdivision Code approvals are exempt from the
GPA requirements and may be re -subdivided to the original underlying legal lots.
This policy is applicable to all Single Unit, Two Unit, and Multiple Unit Residential
land use categories.
08-10-18 City of Newport Beach
5-28
Planning Commission Resolution No. PC2019-021
Paae 21 of 44
The Project includes a General Plan amendment to allow for a mixed -use land use
designation that would accommodate 90 new residential units and 27 memory care
beds as part of the Project on a single building site in Newport Center.
3. Merging of the two existing parcels will comply with Zoning Code requirements relating
to minimum lot area and minimum lot width. The proposed parcel will be 126,600 square
feet in area,(2.9 acres) for which there is no required minimum lot size. The width of the
parcel will be 429 feet, for which there is no current minimum lot width. The PC-19 (San
Joaquin Plaza Planned Community) text will establish minimum lot area and lot widths
based on the proposed lot merger.
Finding:
Q. Neither the lots, as merged, nor the adjoining parcels, will be deprived of legal access
as a result of the merger.
Fact in Support of Finding:
Neither of the merged parcels, nor the adjoining parcels, will be deprived of legal access
as a result of the merger. Access to both properties is provided from San Clemente Drive
and a new driveway and curb cut will be provided to serve the Project. Secondary access
will be recorded for egress and emergency vehicle access to the northeast of the
property across the Villas Fashion Island property (APN No. 442-261-23).
Finding:
R. The lots, as merged, will be consistent with the pattern of development nearby and will
not result in a lot width, depth or orientation, or development site that is incompatible
with nearby lots. In making this finding, the review authority may consider the following.
a. Whether development of the merged lots could significantly deviate from the
pattern of development of adjacent and/or adjoining lots in a manner that would result
in an unreasonable detriment to the use and enjoyment of other properties.
b. Whether the merged lots would be consistent with the character or general
orientation of adjacent and/or adjoining lots.
c Whether the merged lots would be conforming or in greater conformity with the
minimum lot width and area standards for the zoning district.
Facts in Support of Finding:
The orientation and primary access to the merged parcel will remain from San Clemente
Drive, a public road.
2. Properties along San Clemente Drive consist of varying shapes and sizes. Although the
proposed lot merger will create a larger parcel, it will not create an excessively large
parcel in comparison to existing lots and parcels in Newport Center. The width of the
San Clemente Drive frontage will appear unchanged and consistent with the widths of
other properties on San Clemente Drive.
OB-10-18 City of Newport Beach =,
Planning Commission Resolution No. PC2019-021
Paae 22 of 44
Vll. Waiver of Parcel Map
In accordance with NBMC Section 19.08.030(A)(3) (Waiver of Parcel Map Requirement), the
Zoning Administrator may approve a waiver of the parcel map requirement in cases where no
more than three (3) parcels are eliminated. The following finding and facts in support of such
finding are set forth-
Finding-
S. That the proposed division of land complies with requirements as to area, improvement
and design, flood water drainage control, appropriate improved public roads and
property access, sanitary disposal facilities, water supply availability, environmental
protection, and other applicable requirements of Title 19, the Zoning Code, the General
Plan, and any applicable Coastal Plan or Specific Plan.
Facts in Support of Findinq:
Improvements on the Property will be required to comply with the development
standards of the NBMC and General Plan,
2. The Project combines the Properties into a single parcel of land and does not result in
the elimination of more than three (3) parcels.
3. Approval of the Project would remove the existing interior lot line and allow the
Properties to be used as a single site. The Lot Merger in and of itself would not change
the land use or intensity at the site. The Project complies with all design standards and
improvements required for new subdivisions by Title 19 (Subdivisions), Title 20
(Planning and Zoning), and the General Plan.
Vlll. Development A_reement
Development Agreement No. DA2018-005 satisfies the requirement of Chapter__15.45
(Development Agreements):
A development agreement is requested by the Applicant, as the Project would add more
than 50 dwelling units within Statistical Area L1 (Newport Center Area). The
development agreement 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.
2. The Planning Commission recommends the adoption of a development agreement that
includes all the mandatory elements for consideration to ensure public safety and public
benefits that are appropriate to support conveying the vested development rights
consistent with the General Plan and Government Code Section 65867.5 (terms under
negotiation).
°' `' City of Newport Beach 5-30
Planning Commission Resolution No. PC2019-021
Paae 23 of 44
IX. Revocation
Revocation of Use Permit No. UP2005-017 is requested by the Applicant. Use Permit No.
UP2005-017 allowed beer and wine sales at the museum. Revocation of Modification Permit
No. MD2004-059 which allowed additional flagpoleslsignage beyond that allowed by the NBMC
is also requested by the Applicant. In accordance with NBMC Section 20.68.050(B)(44)(a)
(Review Authority's Action), the following finding and fact in support of the revocation are set
forth:
Finding:
T. The permit or approval was issued in error or circumstances under which the permit or
approval was granted have been modified to an extent that one or more of the findings
that justified the original approval can no longer be made and the public health, safety,
and welfare require the revocation or modifications.
Fact in Support of Finding:
The Property is subject to changed circumstances under which the site will no longer be
improved with the infrastructure and occupied by a use contemplated by Use Permit No.
UP2005-017 and Modification Permit No. MD2004-059.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City hereby recommends the City Council of the City
adopt the Environmental Impact Report Addendum No. ER2016-002 (SCH No.
2016021023), as depicted in Exhibit "A," which consists of the EIR Addendum,
Appendices, and Certified EIR.
2. The Planning Commission of the City hereby recommends the City Council of the City
approve the Mitigation Monitoring Report Program as depicted in Exhibit "B" of this
resolution.
3. The Planning Commission of the City hereby recommends the City Council of the City
approve General Plan Amendment No. GP2018-003 as depicted in Exhibit "C," to
change the land use category from PI (Private institutions) to MU-H3 (Mixed -Use
Horizontal), amend Table LU1 to allow for 540 dwelling units within the MU-H3 land use
designation, and amend Anomaly No. 49 (Table LU2 and associated figures), adding 90
additional dwelling units and reducing the nonresidential floor area from 45,208 square feet
to 16,000 square feet in Statistical Area L1.
4. The Planning Commission of the City hereby recommends the City Council of the City
approve Planned Community Development Plan Amendment No. PC2018-001 (Zoning)
as depicted in Exhibit "D" to change the PC-19 (San Joaquin Plaza Planned Community)
'"" City of Newport Beach ,,,
Planning Commission Resolution No. PC2019-021
Page 24 of 44
land use designation and revise the development standards to accommodate the
Project.
5. The Planning Commission of the City hereby recommends the City Council of the City
approve Development Agreement No. DA2018-005, as set forth in Exhibit "E" (terms under
negotiation).
6. The Planning Commission of the City hereby recommends the City Council of the City
approve Major Site Development Review No. SD2018-003 and Conditional Use Permit
No. UP2018-019, subject to the Conditions of Approval set forth in Exhibit "F."
7. The Planning Commission of the City hereby recommends the City Council of the City
rescind Modification Permit No. MD2004-059 (PA2004-184) and Use Permit No.
UP2005-017 (PA2005-086), which upon vesting of the rights authorized by this
resolution, shall become null and void.
8. The Planning Commission of the City hereby recommends the City Council of the City
approve Lot Merger No. LM2018-004, subject to the Conditions of Approval set forth in
Exhibit "F."
PASSED, APPROVED, AND ADOPTED THIS 18TH DAY OF JULY, 2019.
AYES: Ellmore, Klaustermeier, Lowrey, Rosene and Weigand
NOES:
ABSTAIN:
ABSENT: Kleiman and Koetting
""" City of Newport Beach s„
Planning Commission Resolution No. PC201 9-021
Pape 25 of 44
Exhibit "A"
Addendum to Environmental Impact Report
EIR SCH No. 2016021023
• Addendum
• Appendices
Certified EIR
(Available separate due to bulk)
www.newportbeachca.gov/cecla
"" City of Newport Beach s„
Planning Commission Resolution No. PC2919-921
Paae 26 of 44
Exhibit "B"
Mitigation Monitoring Report Program
"" City of Newport Beach
5-34
June 2019 1 Mitigation Monitoring and Reporting Program
State Clearinghouse No. 2016021023
VIVANTE SENIOR LIVING PROJECT
City of Newport Beach
Prepared for:
City of Newport Beach
Contact: Makana Nova, Associate Planner
Community Development Department
100 Civic Center drive
Newport Beach, California 92660
949, 644.3 249
Prepared by:
Place Works
Contact: JvAnn Hadfield, Principal,
3 MacArthur Place, Suite 1100
Santa Ana, California 92707
714,966.9220
info@placeworks.com
www.placeworks.com
PLACEWORKS
City
Of Newport
beaC� s-ss
City of Newport Beach s,s
VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Table of Contents
Section 22=
MITIGATION MONITORING AND REPORTING PROGRAM .........................
......1
1.1 PURPOSE OF _MITIGATION MONITORING AND REPORTING PROGRAM ............................ 1
1.2 PROJECT i.00; 1TiON....................................................................................................................................... 2
1.3 PROJECT SUNI%LL RY.........................................................................................................................................3
Ust of Tables
Table Page
Table 1 Mitigation Monitoring Requirements
61
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Table of Contents
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1 . Mitigation Monitoring and Reporting Program
1.1 PURPOSE OF MITIGATION MONITORING AND REPORTING
PROGRAM
This mtigation Monitoring and Reporting Program has been developed to provide a vehicle by -which to
monitor mitigation measures and conditions of approval outlined in the Vivonte Senior Living Project EIR
Addendum, State Clearinghouse No. 2016021023. The Mitigation -Monitoring and Reporting Program
M.RP) has been prepared in conformance with Section 21081.6 of the Public Resources Code and City of
Newport Beach -Monitoring Requirements. Section 21081.6 states:
(a) Vlen making findings required by paragraph (1) of subdivision (a) of Section 21081 or
when adopting; a mitigated negative declaration pursuant to paragraph (2) of subdivision
(c) of Section 21080, the following; requirements shall apply:
(1) The public agency shall adopt a reporting or monitoring program for the changes
made to the project or conditions of project approval, adopted in order to mitigate
or avoid significant effects on the environment. The reporting or monitoring
program shall be designed to ensure compliance during project implementation. For
those changes which have been required or incorporated into the project at the
request of a responsible agency or a public agency having jurisdiction by law over
natural resources affected br the project, that ag*enq� shall, if so requested by the
lead or responsible agency, prepare and submit a proposed reporting or monitoring
program.
(2) The lead agency shall specify- the location and custodian of the documents or other
material which constitute the record of proceedings upon which its decision is
based.
The State CEQA Guidelines Section 15097 provides clarification of mitigation monitoring and reporting
requirements and guidance to local lead agencies on implementing strategies. The reporting or monitoring;
program must be designed to ensure compliance during project implementation. The City of Newport Beach
is the lead agency for the Vivante Senior Living Project and is therefore responsible for implementing the
MNIRP The WNIRP has been drafted to meet the requirements of Public Resources Code Section 21081.0 as
a full- enforceable monitoring program.
The NI-MRP consists of the mitigation program and the measures to implement and monitor the mitigation
program. The IMIRP defines the following; for the mitigation measure outlined in Table 1, Alit%gation
Aloniloiiq Rerluirewentr
Apr`20
19 City of Newport Beach Page
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
■ Definition of Mitigation. The mitigation measure contains the criteria for mitigation, either in the form
of adherence to certain adopted regulations or identification of the steps to be taken in mitigation.
■ Responsible Party or Designated Representative. Unless otherwise indicated, the project applicant is
the responsible parrs, for implementing the mitigation, and the City of Newport Beach or a designated
representative is .responsible for monitoring the performance and implementation of the mitigation
measures. To guarantee that the mitigation measure will not be inadvertently overlooked, a supervising
public official acting as the Designated Representative is the official who grants the permit or
authorization called for in the performance. kWhere more than one official is identified, permits of
authorization from all officials shall be required.
■ Time Frame. In each case, a time frame is provided for performance of the mitigation measure or
review of evidence that mitigation has taken place. The performance points selected are designed to
ensure that impact -related components of project implementation do not proceed without establishing
that the mitigation is implemented or ensured. All activities are subject to the approval of all required
permits from local, state, and federal agencies with permitting authority over the specific activity.
The numbering system in Table 1 correspond~ With the numbering mstern used in the EIR Addendum. The
last column of the _X111RP table will be used by the parties responsible for documenting when
implementation of the mitigation measure has been completed. The ongoing documentation and monitoring
of mitigation compliance will be completed by the City of Newport Beach. The completed NLIIRP and
supplemental documents will be kept on file at the City of Newport Beach Community Development
Department Planning Division.
1.2 PROJECT LOCATION
The proiect site is in the south-central portion of the City of Newport Beach (City), which is in the western
part of Orange County in southern California. The Cite is bordered by Huntington Beach to the northwest,
Costa ;Mesa to the north, Irvine to the northeast, unincorporated areas (Crystal Cave State Park) of Orange
County to the southeast, and the Pacific Ocean to the south. Regional access to the project site is provided via
Interstate 405 (I-405), State Route 55 (SR-55), SR-73 (San Joaquin Hills Transportation Corridor), and
Highway 1 (Pacific Coast mgh'a'av).
The project site is in Newport Center, an area of the Cite that includes a mix of high- and low-rise office,
residential, and hospitability buildings surrounding the Fashion Island regional mall. The site is approximately
2.9 acres and is at 850 and 856 San Clemente Drive (assessor's Parcel Numbers 442-261-05 and 442-261-17,
respectively). The project site is generally bounded by Santa Cruz Drive to the east, Santa Barbara Drive to
the west, San Joaquin Hills Road to the north, and San Clemente Drive to the south.
Page 7 City of Newport Beach Plarelf'rirks
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
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Mitigation Monitoring and Reporting Program
1.3 PROJECT SUMMARY
The proposed project consists of redeveloping the project site with the Vivante Senior Living Project, which
is a multistory luxury senior living ,project that would provide assisted living units, a memory care unit, and
various resident amenities and services.
The project site sits on two parcels that are approximately 2.9 acres. The proposed project would demolish
the 23,632-square-foot, single -story OCKA building and the 14,556-square-foot single -story office building,
remove the surface parking lots, grub onsite vegetation, and remove all ornamental trees onsite. The project
site would be developed with the proposed luxury senior living project which includes a six -story plus
basetnent, 183,500-square-foot, L-shaped, building which would be centrally located x6thin the project site.
The proposed building would be constructed up to 69 feet in height and would house assisted living units and
a memory care unit, and congregate care services, via a state -licensed residential care facility for the elderly,
would be provided to residents in both the assisted living; and memory care units. The proposed project
would include 54 one -bed units (studios) and 36 two -bed units in the assisted living portion, and 27 beds are
proposed in the nine memory* care units. There would be a total of 153 beds within the 99 units proposed.
Unit sizes would range from 530 square feet for one -bed units and up to 2,5011 square feet for two-hed units.
All units would be provided on the second to sixth floors of the building, with the exception of a couple of
units on the ground level.
April2019 City of Newport Beach Rage
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Tbas prrgc itrterrtrorrally left blank
lea,0¢ City of Newport Beach Platv`f:,rks
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Reauirements
Monitor
Responsibility for Responsibility for (Signature Required)
Mitigation Measure Implementation Timing Monitoring [Date of Compliance]
5.1 AIR QUALITY
AQ-1
During construction, the construction contractor(s) shall require
Project Applicant;
During building plan
City of Newport Beach
the use of interior paint with D grams per liter (gIL) of volatile
Construction Contractor
check and construction
Community Development
organic compounds (VOC) (i.e., zero VOC paint). Paints that
Department — Building
emit less than the low-VOC limits of South Coast Air Quality
Division
Management District (SCAOMD) Rule 1113 are known as
"super -compliant paints." A list of super -compliant VOC coating
manufacturers is available at SCAQMD's website
{http:i)www.agmd.govlprdastbrochureslpaintguide.htmlj. Use of
super -compliant interior paints shall be noted on building plans.
AQ-2
The construction contractor(s) shall limit the daily amount of
Project Applicant;
During grading and
City of Newport Beach
debris haul trips during the project's Orange County Museum of
Construction Contractor
construction
Community Development
Art (CCMA) building demolition and asphalt demolition phase to
Department — Building
a maximum of 32 truckloads per day (64 truck trips per day)
Division
Additionally, except for the building demolition activity, no other
construction activities (onsite building debris reprocessing,
administrative office building demolition, grading, building
construction, etc.) shall commence until completion of the
QCMA building debris hauling. These requirements shall be
noted on all construction management plans and truck trips and
mileage shall be documented.
5.2 CULTURAL
RESOURCES
CUL-1
Prior to the issuance of grading permits, the project applicant
Project Applicant;
Prior to issuance of
City of Newport Beach
shall demonstrate to the Community Development Department
Certified Archaeologist:
grading permits
Community Development
that an Orange County- certified professional archaeologist has
Construction Contractor
Department — Planning
been retained to monitor any potential impacts to archaeological
Division
resources throughout the duration of any ground -disturbing
activities at the project site. The qualified archeologist shall be
present at the pregrade meeting to discuss the monitoring,
collection, and safety procedures of cultural resources, if any are
found-
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation
Timing
Responsibility for
Monitoring
Monitor
(Signature Required)
(Date of Compliance)
If subsurface cultural resources are discovered during ground -
disturbing activities, the construction contractor shall ensure that
all work stops within 25 feet of the find until the qualified
archeologist can assess the significance of the find and, if
necessary, develop appropriate treatment or disposition of the
resources in consultation with the City of Newport Beach and a
representative of the affected Native American tribe (Gabrieleno
or Juaneno). The archeological monitor shall have the authority
to halt any project -related activities that may adversely impact
potentially significant archaeological resources. Suspension of
ground disturbances in the vicinity of the discoveries shall not be
lifted until an archeological monitor has evaluated the
discoveries to assess whether they are classified as significant
cultural resources, pursuant to the Ca]ifom[a Environmental
Quality Act and, if determined to be significant, to develop an
appropriate treatment or disposition plan. As required by
General Plan Policy HR 2.4, any scientifically valuable materials
will be donated to a responsible public or private institution with
a suitable repository, located within Newport Beach or Orange
County, whenever possible.
CUL-2
Prior to issuance of any grading permit, the Applicant shall
Project Applicant
During grading and
City of Newport Beach
provide satisfactory evidence that a Native American monitor
construction
Community Development
(i.e., Gabrieleno Band of Mission Indians -Kith Nation), has been
Department — Planning
retained to observe ground disturbance activities during grading
Division
and excavation activities. In the event that tribal cultural
resources are discovered, the Native American monitor sha€I be
included in the consultation on the recommended next steps.
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
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Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Monitor
Responsibility for Responsibility for (Signature Required)
Mitigation Measure Implementation Timing Monitoring [Date of Compliance]
5.3 GEOLOGY AND SOILS
GEO-1
Based on the provided plans, sufficient space should be
Project Applicant
Prior to issuance of
City of Newport Beach
available for deep excavations to be accomplished using open
grading permits
Community Development
cuts. If site access is limited, temporary shoring may be required
Department — Building
for supporting the vertical sides of the required excavations. if
Division
shoring is required, it will conform to the Geotechnical Report
and following requirements:
Prior to issuance of grading permits, the City of Newport Beach
Building Division shall confirm that the grading plans include the
shoring requirements detailed in the project's geotechnical
study. Cantilever, tied -back or internally braced shoring systems
can be used for the subterranean excavation. Cantilever shoring
systems are typically limited to a maximum retained height of 15
feet. Ted•back shoring walls will require a temporary or
permanent easement from the adjacent property owners and the
City of Newport Beach. The shoring system shall be designed to
resist a lateral earth pressure equivalent to a fluid weighing 35
pounds per cubic foot. An allowable passive earth pressure of
275 psf per foot of depth below the bottom of the excavation
shall be used for design of the shoring system. An allowable
passive earth pressure of 550 psf per foot can be used for
isolated soldier piles.
If sufficient distance from the property line is available, it may be
possible to excavate to the subgrade elevation without the use
of shoring. Temporary slope in the marine terrace deposit may
be excavated at slopes where the proportion of the height of the
rise is less than or equal to the length of the slope (1H:1V).
Alternatively, sloped excavations may be used to reduce the
height of the shored excavation. In the case, the earth pressures
above may be increased and will be handled on a case by case
basis when the height of the sloped excavation is known.
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
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Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Monitor
Responsibility for
Responsibility for
(Signature Required)
Mitigation Measure
Implementation
Timing
Monitoring
Date of Compliance)
All shoring and excavation shall comply with current
Occupational Safety and Health Administration regulations and
observed by the designated competent person on site.
GEO.2
The bedding zone is defined as the area containing the material
Project Applicant
Prior to issuance of
City of Newport Beach
specified that is supporting, surrounding, and extending to one
grading permits
Community Deveiopment
foot above the top of any proposed utility pipes. During grading
Department -- Building
and construction plan reviews, the City of Newport Beach
Division
Building Divisions shall confirm that the project's proposed
bedding satisfies the requirements of the Standard
Specifications for Public Works Construction (SSPWC) Section
306-1.2.1. There shall be a 4-inch minimum of bedding below
the pipe and 1-inch minimum clearance below a projecting bell.
There shall be a minimum side clearance of 6 inches on each
side of the pipe. Bedding material shall be sand, gravel, crushed
aggregate, or native free -draining material having a sand
equivalent of not less than 30, or other material approved by the
engineer. Materials used for the bedding zone shall be placed
and compacted with light mechanical means to reduce the
potential of damaging the pipe; jetting shall not be allowed.
GEO-3
Backfll shall be considered as starting 12 inches above the
Project Applicant;
Prior to issuance of
City of Newport Beach
pipe, On -site excavated materials are suitable as backfill. During
Construction Contractor
grading permits and
Community Development
construction activities, any boulders or cobbles larger than three
during construction
Department — Building
inches in any dimension shall be removed before backfilling. All
Division
backfill shall be placed in loose lifts not exceeding the thickness
specified in the Geotechnical Report and be compacted to at
least 90 percent relative compaction. The upper 12 inches below
pavement shall be compacted at least to 95 percent relative
compaction. Mechanical compaction will be required to
accomplish compaction above the bedding along the entire
pipeline alignments.
In backfill areas, where mechanical compaction of soil backfill is
impractical due to space constraints, sand -cement slurry may be
substituted for compacted backfill. The slurry shall contain one
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
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Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Monitor
Responsibility for
Responsibility for
(Signature Required)
Mitigation Measure
Implementation
Timing
Monitoring
Date of Compliance)
and one-half sacks of cement per cubic yard and have a
maximum slump of 5 inches. When set, such a mix typically has
the consistency of hard compacted soil and allows for future
excavation.
A lean non -shrink concrete plug with a minimum width length of
3 feet shall be pi aced in the utility trenches at the location where
off -site utilities enter the project boundaries to minimize the
potential for off -site water flow onsite.
GEC-4
All foundation excavations shall be observed and/or tested by
Project Applicant;
During grading and
City of Newport Beach
the project applicant's geotechnical consultant before placement
Geotechnical Consultant
construction
Community Deveiopment
of concrete to verify that the foundations would be supported in
Department -- Building
competent soils. If soft or loose soils are encountered at the
Division
subgrade level, the soils shall be removed or brought to a near -
optimum moisture content (t2 percent), recompacted, and
tested to a minimum of 95 percent ►elative compaction prior to
placement of fill or footing or floor slab construction. Only
granular soils shall be used for compacted fill.
Mat foundations. if used in the project, may also derive lateral
load resistance from passive resistance along the vertical sides
of the foundations. Therefore, an ultimate passive fluid pressure
of 275 pounds per cubic foot (pcf) shall be used. It is
recommended that an ultimate sliding friction coefficient of 0.35
to be used for design. Passive and sliding resistance may be
used in combination without reduction, The required factor of
safety is 1.5 for static loads and 1.1 for wind or seismic loads.
GEO-5
Prior to the issuance of grading permits, the project applicant
Project Applicant;
Prior to issuance of
City of Newport Beach
shall demonstrate to the Community Development Department
Certified Paleontologist
grading permits
Community Development
that an Orange County —certified professional paleontologist has
Department — Planning
been retained to monitor any potential impacts to paleontological
Division
resources throughout the duration of any ground -disturbing
activities at the project site. The paleontologist shall develop and
implement a Paleontological Mitigation Plan, which shall include
•lpril 0 J 9
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation
Timing
Responsibility for
Monitoring
Monitor
(signature Required)
Date of Compliance)
the following minimum elements:
■ All earthmoving activities eight feet or more below the
current surface shall he monitored full-time by a qualified
paleontological monitor.
■ If fossils are discovered, the paleontological monitor has the
authority to temporarily divea work within 25 feet of the find
to allow recovery of the fossils and evaluation of the fossil
locality.
• Fossil localities shall require documentation, including
strati gra ph ic columns and samples for micropaleontolog1cal
analyses and for dating.
• Fossils shall be prepared to the point of identification and
evaluated for significance.
■ Significant fossils shall be cataloged and identified prior to
being donated to an appropriate repository.
• The final report shall interpret any paleontological resources
discovered in the regional context and provide the catalog
and all specialists' reports as appendices.
An executed curation agreement shall be part of the plan, and
the project proponent shall bear all expenses of the mitigation
program, including curation of materials meeting significance
criteria.
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Table 1 Mitigation Monitorin
4 NOESE
VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
uirements
Monitor
Responsibility for Responsibility for (Signature Required)
Mitigation Measure Implementation Timing Monitorinq (Date of Compliance)
NOW
At least 30 days prior to commencement of demolition or any
Project Applicant;
At least 30 days prior to
City of Newport Beach
other construction activities, notification shall be given to all
Construction Contractor
demolition or
Community Development
residents or businesses within 500 feet of the project site
construction
Department — Building
regarding the planned construction activities. The notification
Division
shall include a brief description of the project, the activities that
would occur, the duration and hours when construction would
occur. The notification shall also include the telephone number
of the construction contractor's authorized representative to
respond in the event of a vibration or noise complaint.
N01-2
Prior to the beginning of construction activities, a sign shall be
Project Applicant;
Prior to construction
City of Newport Beach
posted at the entrance to the jab site, clearly visible to the
Construction Contractor
Community Development
public, that contains a contact name and telephone number of
Department — Building
the construction contractor's authorized representative to
Division
respond in the event of a vibration or noise complaint. If the
authorized representative receives a complaint, he/she shall
investigate, take appropriate corrective action, and report the
action to the City of Newport Beach's Community Development
Director.
NOW
Route all construction -related trips (including worker commuting,
Project Applicant;
During grading and
City of Newport Beach
material deliveries, and debrislsoil hauling) so as to minimize
Construction Contractor
construction
Community Development
pass-bys or residential areas around the project site.
Department — Building
Division
N014
All heavy construction equipment used on the proposed project
Project Applicant;
During grading and
City of Newport Beach
shall be maintained in good operating condition, with all internal
Construction Contractor
construction
Community Development
combustion. engine -driven equipment fitted with intake and
Department — Building
exhaust muffles, air intake silencers, and engine shrouds no
Division
less effective than as originally equipped by the manufacturer.
N0I-5
Electricaliy powered equipment instead of pneumatic or internal
Project Applicant;
During grading and
City of Newport Beach
combustion powered equipment shall be used to the extent
Construction Contractor
construction
Community Development
possible.
Department — Building
Division
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VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Monitor
Responsibility for
Responsibility for
(Signature Required)
Mitigation Measure
Implementation
Timing
Monitoring
Date of Compliance)
N01-6
All stationary noise -generating equipment shall be located as far
Project Applicant;
During grading and
City of Newport Beach
away as possible from neighboring property lines; with particular
Construction Contractor
construction
Community Development
attention paid to the residential complex (currently under
Department - Building
construction) to the north of the project site.
Division
Ne1-7
Limit all internal combustion engine idling both on the site and at
Project Applicant;
During grading and
City of Newport Beach
nearby queuing areas to no more than five (5) minutes for any
Construction Contractor
construction
Community Development
given vehicle or machine. Signs shall be posted at the jab site
Department - Building
and along queueing lanes to reinforce the prohibition of
Division
unnecessary engine idling.
N01-8
The use of noise producing signals, including hams, whistles,
Project Applicant;
During grading and
City of Newport Beach
alarms, and bells will be for safety warning purposes only. Use
Construction Contractor
construction
Community Development
smart back-up alarms, which automatically adjust the alarm level
Department - Building
based on the background noise level, or switch off back-up
Division
alarms and replace with human spotters.
N01-9
A temporary noise barderJcurtain shall be erected between the
Project Applicant;
During building plan
City of Newport Beach
construction zone and adjacent residential receptors to the north
Construction Contractor
check and grading and
Community Development
of the project site boundary. The temporary sound barrier shall
construction
Department - Building
have a minimum height of 15 feet and be free of gaps and holes
Division
and must achieve a Sound Transmission Class (STC) of 35 or
greater. The barrier can be (a) a %-inch-thick plywood wall ❑R
(b) a hanging blanket/curtain with a surface density of at least 2
pounds per square foot. For either configuration, the
construction side of the barrier shall have an exterior lining of
sound absorption material with a Noise Reduction Coefficient
(NRC) rating of at least 0.7.
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Table 1 Mitigation Monitorin
uirements
VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Monitor
Responsibility for Responsibility for (Signature Required)
Mitigation Measure Implementation Timing Monitoring [Date of Compliance]
5.5 TRIBAL CULTURAL RESOURCES
CUL-1
Prior to the issuance of grading permits, the project applicant
Project Applicant;
Prior to issuance of
City of Newport Beach
shall demonstrate to the Community Development Department
Certified Archaeologist;
grading permits
Community Development
that an orange County —certified professional archaeologist has
Construction Contractor
Department — Planning
been retained to monitor any potential impacts to archaeological
Division
resources throughout the duration of any ground -disturbing
activities at the project site. The qualified archeologist shall be
present at the pregrade meeting to discuss the monitoring,
collection, and safety procedures of cultural resources, if any are
found.
If subsurface cultural resources are discovered during ground -
disturbing activities, the construction contractor shall ensure that
all work stops within 25 feet of the find until the qualified
archeologist can assess the significance of the find and, if
necessary, develop appropriate treatment or disposition of the
resources in consultation with the City of Newport Beach and a
representative of the affected Native American tribe (Gabrieleno
or Juaneno). The archeological monitor shall have the authority
to halt any project related activities that may adversely impact
potentially significant archaeological resources. Suspension of
ground disturbances in the vicinity of the discoveries shall not be
lifted until an archeological monitor has evaluated the
discoveries to assess whether they are classified as significant
cultural resources, pursuant to the Caiifomia Environmental
Quality Act and, if determined to be significant, to develop an
appropriate treatment or disposition plan. As required by
General Plan Policy HR 2.4, any scientifically valuable materials
will be donated to a responsible public or private institution with
a suitable repository, located within Newport Beach or Orange
County, whenever possible.
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5-51
VIVANTE SENIOR LIVING PROJECT EIR ADDENDUM MITIGATION MONITORING AND REPORTING PROGRAM
CITY OF NEWPORT BEACH
Mitigation Monitoring and Reporting Program
Table 1 Mitigation Monitoring Requirements
Mitigation Measure
Responsibility for
Implementation
Timing
Responsibility for
Monitoring
Monitor
(signature Required)
Qate of Co pliance
CUL-2
Prior to issuance of any grading permit, the Applicant shall
Project Applicant
During grading and
City of Newport Beach
provide satisfactory evidence that a Native American monitor
construction
Community Development
(i.e., Gabrieleno Band of Mission Indians-tGzh Nation), has been
Department — Planning
retained to observe ground disturbance activities during grading
Division
and excavation. In the event that tribal cultural resources are
discovered, the Native American monitor shall be included in the
consultation on the recommended next steps.
�rw_101
I�luczU'iu kr
5-52
Planning Commission Resolution No. PC2919-921
Paae 27 of 44
Exhibit "C"
General Plan Land Use Amendments
"" City of Newport Beach
5-53
C0-R
5AN LLE
RM 1
CO-R
0
Jo
M\33\�,o
CENf1 S�
0
GP2018-003 (PA2018-185)
General Plan Amendment
� FO%�•r. _ 850 f 856 San Clemente Drive
Document Name: PA2018-185(GP2018-003) Reso Exhibil (-a- 1 L 0 u a
400
800
I Feet
�A]
5-54
Land Use Element
[and Use Cateaory Uses Densii►d tntensit
MIXED -USE HORIZONTAL— The MU-H designation is intended to provide for the development of areas for a horizontally
MU-H distributed mix of uses, which may include general or neighborhood commercial, commercial
offices, multi -family residential, visitor -serving and marine -related uses, and/or buildings that
vertically integrate residential with commercial uses.
Mixed -Use Horizontal 1— The MU-H1 designation provides for a horizontal
MU-H1 Intermixing of uses.
For properties located an the inland side of Coast
Highway in the Mariners' Mile Corridor, (a) the Coast
Highway frontages shall be developed for marine -related
and highway -oriented general commercial uses in
accordance with CM and CG designations- and
(b) portions of properties to the rear of the commercial
frontage may be developed for free-standing
neighborhood -serving retail, multi -family residential units,
or mixed -use buildings that integrate residential with retail
uses on the ground floor In accordance with the CN, RM ,
CV, or MU-V designations respectively,
Properties located in the Dover Drive/Westcliff Drive
area may also be developed for professional offices or
mixed -use buildings that integrate residential with retail or
office uses on the ground floor in accordance with the CO
and Mil-V designations respectively.
Commercial or Office only:
floor area to land ratio of 0.5.
Multi -Family Residential only:
20.1-26.7 units per acre.
Mixed -Use Buildings: floor area
to land ratio of 1.5: where a
minimum floor area to land ratio
of 0.25 and maximum of 0.5
shall be used for nonresidential
purposes and a maximum of 1.0
for residential.
Mixed -Use Horizontal 2— The MU-H2 designation applies to properties located in
Residential: maximum of 2,200
MU-112 the Airport Area. It provides for a horizontal intermixing of
units as replacement of existing
uses that may include regional commercial office, multi-
office, retail, and/or industrial
family residential, vertical mixed -use buildings, industrial,
uses at a maximum density of 50
hotel rooms, and ancillary neighborhood commercial uses.
units per adjusted gross acre, of
which a maximum of 550 units
may be developed as infill.
Nonresidential Uses: as
defined by Table LU2
Mixed -Use Horizontal 3— The MU-H3 designation applies to properties located in
MU-1113 Newport Center. It provides for the horizontal intermixing
of regional commercial office, hotel, multi -family
residential and ancillary commercial uses. Within the
Tennis Club, residential uses may be developed as single-
family units.
Residential: maximum of 450` 540
units
Hotel: 65 rooms In addition to
those specified in Table LU2
Other: Nonresidential: As
specified by Table LU2
Newport Beach- ynaf
Newport Beach
5-55
Land Use Element
Table LU2
Anomaly Locations
Anomaly
Statistical Land Use
Development
Number
Area Designation
Limit s
Develo meet Limit Other Additional Information
37
Ll
CO-R
131,201
2,050 Theater Seats (not included in
total square footage)
38
L1
CO-M
443,627
39
L1
MU-H3
408,084
40
L1
MU-H3
1,426,634
425 Hotel Rooms (included in total
Square Footage)
41
Li
CO-R
327,671
42
L1
CO-R
286,166
43
Li
CV
611 Hotel Roams
44
Li
CR
1,619,525
1,700 Theater Seats (not included in
total square footage)
45
L1
CO-G
162,364
46
Li
MU-H3lPR
3,725
24 Tennis Courts
Residential permitted in accordance
with MU-H3.
47
L1
CG
105,000
48
L1
MU-H3
7,
49
Li
11W
90 Dwellinq Units
50
L1
CG
25.000
51
K1
PR
20,000
52
K1
CV
479 Hotel Rooms
53
K1
PR
567,500
See Settlement Agreement
54
A
CM
2,000
55
H3
PI
119,440
In no event shall the total combined
56
A3
pl
1,343,238
990,349 sf Upper Campus
gross floor area of both campuses
577,989 sf Lower Campus
exceed the development limit of
1,343,238 sq. ft.
57
Intentionally Blank
58
J5
PR
20,000
59
H4
MU-W1
247,402
144 Dwelling Units (included in total
square footage)
2,150 Hotel Rooms (2,960,000
square feet for hotel roams and
Newport Coast LCP Planning Area
related commercial uses identifed in
13
60
N
CV
*3,035,000
Newport Coast LCP)
'CarrecGan per Planning Commission
75.000 square feet for Day Use
Resolution 2030 adopted October6. 2016
Commercial
61
N
CV
125,000
Newport Coast LCP Planning Areas
3B and 14
62
L2
CG
2,300
63
G1
CN
66,000
64
M3
CN
74,000
65
M5
CN
80,000
66
,l2
CN
138,500
67
D2
PI
20,000
68
L3
PI
71,150
69
K2
CN
75,000
70
D2
RM-D
Parking Structure for Bay Island (No
Residential Units)
71
Li
I CO-G
11,630
City of NewpartPB(Seach General Plan
5-56
Planning Commission Resolution No. PC201 9-021
Pape 28 of 44
Exhibit "D"
Amended PC-19
(San Joaquin Plaza Planned Community
Development Plan)
"" City of Newport Beach
5-57
San Joaquin Plaza
Planned Community Development Plan
(PC 19 Amendment No. S)
Land Uses, Development Standards &
Procedures
Amended [insert date here]
City of Newport Beach
5-58
San Joaquin Plaza Planned Community Development Plan
(PC 19 Amendment No. 8)
Land Uses, Development Standards & Procedures
Table of Contents
I. Introduction
A. Introduction, Purpose, and intent of Development Plan
B. Relationship to Municipal Code
C. San Joaquin Plaza Statistical Analysis
D. Figure 1 - San Joaquin Plaza Planned Community Area Location map
II. Land Uses and Development Regulation
a. Permitted Uses
b. Development Limits
c. Transfer of Development Rights
III. Site Development Standards
a. Site Setbacks
b. Senior Housing Open Space Requirements
c. Parking
d. Floor Area Ratio
e. Lot Coverage
f. Permitted Height of Structures
g. Rooftop Appurtenances
h. Architectural Features
i. Site Walls, Retaining Walls, Garage Walls and Mechanical Screens
j. Refuse Collection
Ic. Landscaping
I. Lighting
m. Signs
n. LEED Certification
o. Construction and Utility Requirements
IV. Definitions
V. Site Development Review
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Page 6
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City of Newport Beach
5-59
San Joaquin Plaza PC Development Plan
Amendment No. 8
I. Introduction
A. Introduction, Purpose, and Intent of this Development Plan
The San Joaquin Plaza Planned Community District (PC-19) (the "San Joaquin Plaza PC District")
for the City of Newport Beach is part of the Newport Center Development in conformance with
the Newport Beach General Plan (the "General Plan"). The General Plan identifies the goal of
creating a successful mixed -use district that integrates economic and commercial centers serving
the needs of Newport Beach residents and the sub -region, with expanded opportunities for a
variety of housing development within Newport Center.
As shown on Figure 1, the San Joaquin Plaza PC District is located in the north end of Newport
Center where the concentration of building height and mass is greatest. It is generally bounded
by Santa Cruz Drive on the east, San Clemente Drive to the south, and Santa Barbara Drive to the
west. Surrounding uses include a parking structure to the east, office buildings and a parking
structure to the west, residential apartments to the north, and office and residential apartments
to the south across San Clemente Drive. The Fashion Island regional mall is approximately % mile
to the south. The purpose of the San Joaquin Plaza PC District is to ensure consistency with
General Plan policies related to development scale in Newport Center and expectations for high
quality development.
This San Joaquin Plaza PC Development Plan (as hereby amended, this "Development Plan")
provides land use and development standards for the subject properties located at 850 San
Clemente Drive and 856 San Clemente Drive. This Development Plan supersedes the existing San
Joaquin Plaza PC Development Plan in its entirety, including the land use and development
standards therein. The specifications of this Development Plan are intended to provide flexibility
in both the land use and development standards for the planned buildings.
B. Relationship to the Municipal Code
Whenever the development regulations of this Development Plan conflict with the regulations
of the City of Newport Beach Municipal Code (the "Municipal Code"), the regulations contained
in this Development Plan shall prevail. The development regulations of the Municipal Code shall
apply with respect to those regulations not addressed by this Development Plan. All words and
phrases used in this Development Plan shall have the same meaning and definition as used in the
Municipal Code unless defined differently in Section IV (Definitions) of this Development Plan.
C. San Joaquin Plaza Statistical Analysis
The San Joaquin Plaza PC District area consists of the following two (2) existing buildings located
on the following two (2) adjoining parcels (however, this Development Plan allows for such
adjoining parcels to be combined into a single parcel for development purposes):
City of Newport E
5-60
Building 1 (850 San Clemente Drive) on Parcel 1
• Existing Use: Orange County Museum of Art Exhibition Space (23,632
Square Feet)
• Parcel Size: 1.996 acres
Building 2 (856 San Clemente Drive) on Parcel 2
• Existing Use: Orange County Museum of Art Galleries Administrative
Offices and Storage (13,935 Square Feet)
Parcel Size: 0.910 acres
Total combined Land Parcels consisting of 2.91 acres
D. Figure 1 - San Joaquin Plaza Planned Community Area Location Map
III
San Joaquin Hills Rd
NSan Joaquin Planned Comrnunit
City of Newport Beach ss,
II. Land Uses and Development Regulations
A. Permitted Uses
1. General
The specific uses listed in Section II.A.2 below are permitted under this Development Plan. In
addition, uses determined to be either accessory or ancillary to such permitted uses, or Support
Uses to such permitted uses, are also permitted under this Development Plan. in addition, the
Community Development Director may determine other uses not specifically listed herein,
provided they are consistent with the Mixed- Use Horizontal (MU-H3) Land Use designation.
2. San Joaquin Plaza
a. Senior Housing (with or without congregate care), which may include a
development which is licensed by the State of California as a residential care
facility for the elderly ("RCFE"). Such Senior Housing may include independent,
assisted -living, and/or memory care units for persons 50 years of age or older.
b. Convalescent Facility (with or without congregate care), which may include a
development which is licensed by the State of California as a RCFE. Such
Convalescent Facility may include assisted -living care and/or memory care units.
c. Uses that are accessory or ancillary to the foregoing permitted uses, Including
Support Uses for Senior Housing, are also permitted. These include, but are not
limited to, the following:
i. Lobby
ii. Club Rooms
id. Bowling alley
iv. Fitness Center
V. Business Services
vi. Rooftop Lounge
vii. Salon/Spa
viii. Commercial Kitchen & Dining Hall with ancillary on -site sale alcohol
service (Type 47/57 or similar license)
ix. Laundry
Conference Rooms & Admin Offices
Pool
Putting Green
Bocce Ball Court
Dog Park
Raised Herb Gardens
Similar resident serving uses
City of Newport Beach
5-62
d. Telecommunications facilities are permitted in accordance with Chapter 20.49
(Wireless Telecommunications Facilities) of the N3MC.
e. Land uses that are not listed above are not allowed, except as provided by Chapter
20.12(lnterpretation of Zoning Code Provisions) of the NBMC or as required by State Law.
f. Temporary uses may be allowed only upon approval of a limited term permit pursuant
to Section 20.52.040 (Limited Term Permits) of the NBMC.
B. Development Limits
1. General
The following development limits in this Development Plan are consistent with those
established by the General Plan:
2. San Joaquin Plaza
Up to 90 Senior Housing units are permitted within the San Joaquin Plaza PC District.
Senior Housing units, associated common areas, and ancillary uses are measured on a per unit
basis and not by gross floor area. Senior Housing units are comprised of separate or independent
living areas for one or more persons, with area or equipment for sleeping, sanitation, and food
preparation.
Up to 16,000 square feet of Convalescent Facilities or other non-residential uses
(excluding Senior Housing units and associated common areas and ancillary uses) are permitted
within the San Joaquin Plaza PC District. Convalescent Facilities and other non-residential uses
(excluding Senior Housing units and associated common areas and ancillary uses) are measured
by gross floor area.
C. Transfer of Development Rights
Development limits may be modified through the approval of a Transfer of Development
Rights. The transfer of development rights among the San Joaquin Plaza PC District and to/from
other areas in the Newport Center/Fashion Island District identified in the General Plan is allowed
in accordance with Policy LU 6.14.3 of the General Plan and this Development Plan. The transfer
of development rights shall be approved, as specified in the General Plan.
M. Site Development Standards
A. Site Setbacks
a. San Clemente Drive 151
0"
b. East Property Line (Adjacent to Parking Garage) 5'0"
6
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c. North Property Line (Adjacent to San Joaquin Apartments) 510"
d. West Property Line 510"
Note: Carports, site walls, trash or generator enclosures, and parking spaces shall not be
subject to any setback requirements.
B. Senior Housing Open Space Requirements
The following open space standards shall apply to Senior Housing:
1. Common Outdoor Open Space
The project shall provide a minimum of 5 percent common outdoor open space based
on the lot area (6,330 square feet minimum). The project shall provide common outdoor open
space either at grade, podium level, common level within the building or roof level. Qualifying
common outdoor open space areas shall have a minimum horizontal dimension of 30 feet and
may contain active and/or passive areas and a combination of hardscape and landscape features,
but a minimum of 10 percent of the common outdoor open space must be landscaped. All
common outdoor space must be accessible to all residents.
2. Common Indoor Open Space
The project shall provide at least one community room of at least 500 square feet for
use by residents of the project. The area should be located adjacent to, and accessible from,
common access point. This area may contain active or passive recreational facilities or meeting
space and must be accessible through a common corridor.
3. Private Open Space
At least 40 percent of all units shall provide private open space, on a balcony, patio,
or roof terrace. Private open space shall be a minimum of 30 square feet and an average
horizontal dimension of 6 feet. Balconies should be proportionately distributed throughout the
project in relationship to floor levels and sizes of units.
C. Parking
Off-street parking for Senior Housing units shall be provided at a ratio of not less than 1.2
parking spaces per unit. Ancillary uses, such as lobbies, club rooms, fitness center, business
services, amenities and building services shall not require additional parking as they support the
primary operations of the Senior Housing community and its residents.
Off-street parking for Convalescent Facilities (Memory Care) shall be provided at a ratio
of not less than one (1) parking space per three beds.
City of Newport t
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D. Floor Area Ratio
a. Allowable Floor Area Ratio (FAR)
b. Lot Area
c. Allowable Floor Area
E. Lot Coverage
Lot Coverage is the percentage of the site area.
a. Minimum Lot Area
b. Allowable Lot Coverage is 25%
c. Minimum Lot Width
F. Permitted Height of Structures
1.5:1 FAR
126,600 Square Feet
189,900 Square Feet
39,639 Square Feet
150 Feet
The maximum Building Height of all buildings shall be 69 feet as measured from Finished
Grade to the top of primary structure (top of ceiling above highest occupiable living space). Finish
Grade is defined as the elevation point of the main building entry point at ground floor in relation
to mean sea level.
G. Rooftop Appurtenances
Rooftop Appurtenances are permitted above the primary structure and may exceed the
maximum Building Height by up to 10 feet (79 feet maximum). Rooftop Appurtenances must be
screened from public view; the height of Rooftop Appurtenances shall not exceed the height of
the screening. Supports for window washing equipment are permitted, and are not required to
be screened from view. Additional setbacks on the roof are not required.
H. Architectural Features
Architectural Features are permitted above the primary structure and may exceed the
maximum Building Height by up to 10 feet (79 feet maximum). Such features must be an
extension of the architectural style of the building in terms of materials, design and color.
I. Site Wails, Retaining Walls, Garage Walls and Mechanical Screens
a. Site Walls
i. Site walls shall not exceed 8'0" from Finish Grade.
b. Retaining Walls
i. Interior: The height of a retaining wail that faces interior to the project must
not exceed 12'0" from Finish Grade to top of wall. A 42-inch guardrail is
allowed above the wall where it is necessary for building and safety.
ii. Exterior: Retaining walls that face exterior to adjacent properties and San
Clemente Drive at property lines are limited in height to 12'0" from Finish
City of Newport E
5-65
Grade not including handrail conditions that may be required above these
walls. These handrail requirements may be formed by the retaining wall.
c. Garage walls that are exposed will be treated as architectural building fa4ade.
d. Mechanical screens will be allowed to be of sufficient height to provide coverage of
equipment from public view. Required grills, louvers, vents and other functional
requirements of building equipment will, to the extent practical, be incorporated
into the building architecture. Ground -mounted mechanical screens shall not
exceed 12 feet in height. Mechanical equipment shall comply with the noise
standards of the City of Newport Beach Municipal Code.
J. Refuse Collection
The Senior Housing and Convalescent Facility shall provide a minimum of 384 square feet of trash
area. The trash area shall provide a dedicated area with three walls, a gate, and a solid roof cover
with a drain to the sewer system in accordance with the requirements of Section 20-30.120 (Solid
Waste and Recyclable Materials Storage) of the City of Newport Beach Municipal Code, All
storage of cartons, containers, and trash shall be shielded from view within a building or within
an area enclosed by a wall not less than 5 feet in height.
K. Landscaping
Refer to the landscape standards within the City of Newport Beach Municipal Code.
L. Lighting
Refer to the lighting standards within the City of Newport Beach Municipal Code.
M. Signs
1. General Sign Standards
A comprehensive sign program may be prepared if the applicant wishes to deviate
from the sign standards identified herein. Comprehensive sign programs shall be submitted for
review and consideration in accordance with the provisions of the City of Newport Beach
Municipal Code.
2. Prohibited Sign Types
Signs visible from public rights -of -way are prohibited as follows:
a. Rotating, flashing, blinking or signing with animation on a permanent basis
are prohibited.
b. Signs that imitate ❑r resemble off icial traffic signs or signals are prohibited.
C. Wind signs or audible signs are prohibited.
9
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d. Any other sign types identified in the City of Newport Beach Municipal
Code as prohibited are also prohibited hereunder.
Animated signs visible from public streets are not allowed unless otherwise permitted by the
Municipal Code.
3. Sign Standards San Joaquin Plaza
Primary building address numbers shall be visible from the street (and/or pedestrian walkways
in the case of necessity) and be located on the building so that they are visible from adjacent
frontage roads and designated parking areas. Secondary address signs may be located where
appropriate for on -site orientation and safety. All address signs shall have a consistent color,
design, and material for any given building. A single letter style sign is recommended.
Table 2 — Sign Standards for San Joaquin Plaza
Maximum
Sign
Maximum
Letter/
Type
Description
Location
Number/Area
Logo Height
36 inches
Project entry at
(6-foot
Entry columns or
San Clemente
maximum
ground mounted
(minimum 5-
4/100 square
overall
A
signs in front of
foot setback
feet each
height clear
landscaping.
from front
of sight -
property line)
distance
areas)
1 Primary/150
On building
square feet
Primary 48
B
Building sign
elevation or
and 4
inches
Secondary/100
Secondary
awning
square feet
36 inches
each
4 (additional
address signs
4 inches
may be located
minimum
where
as required
On building
appropriate for
by Fire
C
Building address
elevation
in -site
Department
orientation)/50
and 24
square feet
inches
each or as
maximum
otherwise
10
city of Newport tsea�
5-67
required by
Fire
Department
As required
As appropriate
by Fire
for safety and
department
D
Advisory signs
Entry to service
orientation/25
or Building
square feet
Code for
Safety
purposes
4. Temporary Signs
Temporary signs are permitted in accordance with the Newport Beach Municipal Code.
N. LEED Certification
The project shall be designed to meet the criteria of LEED Certification as based on LEED's
prototype points and scorecard rating system.
0. Construction and Utility Requirements
1. Archaeological/Paleontological
Grading of the site is subject to the provisions of the City Council Policies K-4 & K-5 regarding
archaeological and paleontological resources and Mitigation Measures as adopted in the EIR
addendum Mitigation Monitoring and Reporting Program (MMRP).
2. Building Codes
Construction shall comply with applicable provisions of the California Building Code and the
various other mechanical, electrical and plumbing codes related thereto as adopted by the
Municipal Code.
3. Grading
Grading and excavation of the project shall be conducted and undertaken in a manner both
consistent with grading manual standards and ordinances of the City of Newport Beach, in
accordance with a grading and excavation plan approved by the City of Newport Beach Building
Division, and in accordance with Mitigation Measures as adopted in the E I R addendum Mitigation
Monitoring and Reporting Program (MMRP).
4. Telephone, Gas and Electrical Service
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5-68
All "on -site" gas lines, electrical lines and telephone lines shall be placed underground. Unless
prohibited by the utility company, transformer or terminal equipment shall be visually screened
from view from streets and adjacent properties.
5. Sewage Service
Any new and upgraded on and off -site sewer lines shall be designed in accordance with the
Utilities Department Director's approval.
6. Storm Water Management
This project shall adhere to the Water Quality Management Plan (WQMP) approved in
conjunction with the issuance of building permits. Drainage and water quality assurance
measures will be implemented as per the City Public Works and Municipal Separate Storm Sewer
System (MS4) requirements. Development of the property will be undertaken in accordance with
the flood protection policies of the City.
7. Water Service
Water service to the site will be provided by the City of Newport Beach and is subject to
applicable regulations, permits and fees as prescribed by the City. The project shall provide the
infrastructure for Fire Protection Water Service and Domestic water.
12
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IV. Definitions
All words and phrases used in this Development Plan shall have the same meaning and definition
as used in the Municipal Code unless defined differently in this section.
Advisory Sign: Any sign that contains directional, directory, or safety information, and does not
contain advertisements.
Architectural Features: Architectural features include, but are not limited to, any extension of
the architectural style of the building in terms of materials, design and color that may exceed the
building height. Examples include: Roof overhangs, brackets, cornices, eaves, belt courses,
ornamental moldings, pilasters, and similar features.
Audible Signs: Any sign that uses equipment to communicate a message with sound or music.
Building Elevation: The exterior wall surface formed by one (1) side of the building,
Building Height: The height of a building as measured from the exterior finished grade to the
roof of the highest occupied space. If the building is on a sloping surface, the height
measurement is taken from the main building entrance.
Convalescent Facility: An age -restricted area or facility (with or without medical professional
staffing) designed and intended for persons ages 50 years and older with memory care needs. A
Convalescent Facility may be licensed by the State of California as a Residential Care Facility for
the Elderly, may include the provision of congregate care, and may offer services and assistance
with activities of daily living, such as bathing, dressing, eating, toileting, ambulating, assistance
with medications, housekeeping, scheduling of medical and dental appointments, accessing
community resources and transferring to outside facilities.
Finish Grade: The elevation point of the main building entry point at ground floor in relation to
mean sea level.
Floor Area, Gross: The gross floor area is the total enclosed area of all floors of a building
measured to the outside face of the structural members in exterior walls, including halls,
stairways, elevator shafts at each floor level, service and mechanical equipment rooms and
basement or attic areas having a height of more than seven feet. Excluded from gross floor area
are covered porches, space below building entry or basement, parking, walkways, loading docks,
service tunnels, mechanical shafts, and mechanical spaces which are inaccessible to tenants.
Monument Sign: Any sign that is supported by its own structure and is not part of or attached
to any building.
Parking Structure: Structures containing more than one story principally dedicated to parking.
Parking structures may contain accessory, ancillary, and resident Support Uses.
Podium Level: A superposed terrace conforming to a building's plan, a continuous pedestal; a
line of vertical segregation linking separate areas.
Rooftop Appurtenance: A rooftop structure, equipment or element servicing or appurtenant to
a building, including, but not limited to, mechanical equipment, mechanical equipment screens,
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stairwell and elevator shaft housing, antennae, window washing equipment, and wireless
communication facilities.
Senior Housing: An age -restricted residential development designed and intended for persons
ages 60 years and older. Such development may include the provision of congregate care
services for independent, assisted -living, or memory care residents. Senior housing units are
comprised of separate or independent living facilities for one or more persons, with area or
equipment for sleeping, sanitation, and food preparation. Additionally, a Senior Housing
development may be licensed by the State of California as a Residential Care Facility for the
Elderly.
Sign: Any media, including their structure and component parts which are used or intended to
be used out-of-doors to communicate the information to the public.
Support Uses: Uses within Senior Housing developments and parking structures designed,
oriented, and intended to primarily serve building occupants. This includes uses such as dry
cleaners, coffee vendors, and sundry shops.
Temporary Sign: Any sign, banner, pennant, valance, or advertising display constructed of cloth,
canvas, plywood, light fabric, cardboard, wallboard or other light materials, with or without
frames, intended to be displayed for a limited period of time.
Wind Sign: A series or similar banners or objects of plastic or other light material more than two
inches in diameter which are fastened together at intervals by wire, rope, cord, spring or any
other means, designed to move and attract attention upon being subjected to pressure by wind
or breeze.
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V. Site Development Review
The purpose of the Site Development Review (SD) process is to ensure that any new development
proposal within the Development Plan, Amendment No. 8) is consistent with the goals and
policies of the General Plan and the provisions of the PC -Text. Prior to the issuance of building
permits for development, a SD application shad be required in accordance with Section 20.52.080
(Site Development Reviews) of the Newport Beach Municipal Code. The submitted site plans and
elevations shall be part of this application.
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Planning Commission Resolution No. PC2919-921
Paae 29 of 44
Exhibit "E"
Draft Development Agreement
(terms under negotiation)
"" City of Newport Beach
5-73
DRAFT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Cleric
(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
VIVANTE NEWPGRT CENTER, LLC
concerning
VIVANTE SENIOR LIVING
850 AND 856 SAN CLEMENTE DRIVE
City of Newport Beach
5-74
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 , 2019 ("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 VIVANTE NEWPORT CENTER,
LLC, a Delaware limited liability company ("Developer'). City and Developer are sometimes
collectively referred to in this Agreement as the "Parties" and individually as a "Party."
1217CTT❑ T C
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 850 and 856 San
Clemente Drive, Newport Beach, California (APN #442-261-05 and #442-261-17) ("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 ("Devclopment 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
Dollars and 001100 ($ .00).
Developer shall pay the Public Benefit Fee to the City at the time of the City's issuance of the
first building pen -nit for the Project (as defined herein).
E. This Agreement is consistent with the City of Newport Beach General Plan,
including, without limitation, the Property's proposed "Private Institutions" General Plan
designation that is being adopted and approved by the City Council concurrently with its
City of Newport Beach s„
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 Environmental Impact Report and final
Environmental Impact Report (SCH# 2016021023) ("EIR") that has been certified by the City
Council on November 29, 2016, for the prior project, 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 duly 18, 2019, 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.
L On enter hearing date, the City Council also held a public hearing on this
Agreement and considered the Planning Conunission's recommendations and the testimony and
information submitted by City staff, Developer, and members of the public. On enter date,
consistent with applicable provisions of the Development Agreement Statute and Development
Agreement Ordinance, the City Council adopted its Ordinance No. insert ordinance number
("Adopting Ordinance"), finding this Agreement consistent with the City of Newport Beach
General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
I. 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. insert ordinance number
approving and adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
from time to time.
"Agreement Date" shall rnean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
City of Nevbport Beach s,fi
"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.
"CAI 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 rneanim, 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 Vivante Newport Center, LLC, a Delaware limited liability
company, 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
City of NeWport Beam 5-77
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. GP2018-003 to amend
Anomaly No. 49 to change the land use category from PI (Private Institutions) to MU-H3
(Mixed -Use Horizontal); (3) Planned Community Development Plan Amendment No. PC2018-
001 to modify the San Joaquin Plaza Planned Community Development Plan (PC -19) to include
development and design standards to allow for 90 senior dwelling units and 27 memory care
beds and an increase in the height limit from 65 feet to 69 feet with 10 feet for rooftop and
mechanical appurtenances; (4) Development Agreement No. DA 2018-005— To provide public
benefits should the Project be approved; (5) Conditional Use Permit No. UP2018-19 to allow the
operation of the proposed senior housing and memory care facility, alcohol service for dining
hall and lounge areas in the form of a Type 47 (On Sale General) and Type 57 (Special On Sale
General), and ensure land use compatibility; (6) Major Site Development Review No. SD2018-
003 to allow the construction of 90 senior dwelling units and a 27 bed memory care facility; (7)
Lot Merger No. LM2018-004 to merge the two existing parcels into one development site; (8)
Addendum to Environmental Impact Report No. ER2016-002 (SCH#2016021023); (9) the E1R
(State Clearinghouse No. 2016071062); and (10) all conditions of approval and all mitigation
measure approved for the Project on or before the Agreement Date.
"Development Regulations' shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that affects the Development of the Property,
unless such amendment or modification is expressly authorized by this Agreement or is agreed to
by Developer in writing: the General Plan; the Development Plan; and, to the extent not
expressly superseded by the Development Plan or this Agreement (see Section 4.3 in particular),
all other land use and subdivision regulations governing the permitted uses, density and intensity
of use, design, and improvement, procedures for obtaining required City permits and approvals
for development, and similar matters that may apply to the Development of the Project on the
Property during the Term of this Agreement that are set forth in Title 15 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
City of Newport Beach s,p
Ordinance, the Development Plan, or any of the Development Regulations approved on or before
the Agreement Date is timely qualified for the ballot and a referendum election is held
concerning the Adopting Ordinance or any of such Development Regulations, the date on which
the referendum is certified resulting in upholding and approving the Adopting Ordinance and the
Development Regulations; (iii) if a lawsuit is timely filed challenging the validity or legality of
the Adopting Ordinance, this Agreement, the Development Plan, and/or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
the Development Plan, and/or the applicable Development Regulations, whether such finality is
achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the
passage of any time required to appeal an involuntary dismissal), or binding written settlement
agreement; or (iv) the date on which title to the Property has been transferred to, and vested in,
Developer as evidenced by an instrument duly recorded with the Office of the County Recorder
of the County of Orange. Promptly after the Effective Date occurs, the Parties agree to cooperate
in causing an appropriate instrument to be executed and recorded against the Property
memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et sue., 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 see ., 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 sect., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 65.1 et sect., 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
City of Newport Beach s„
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mcan 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 850 and 856 San Clemente Drive 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.
"Tennination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 1 I of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement is consistent with the General Plan and the SN Joaquin Plaza Planned
Conununity District ("PC-19") as amended by the approvals in the Development Plan adopted
concurrently herewith.
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.
City of Nev0port Beach s�
2.3 Developer Representations and Warranties Regarding Ownership of the Property_
and Related Matters Pertaining to this Agrecment.
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 fonned 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_
2.4 Term.
The tens 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, (1) 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 tenth (1 Oth)
aiuuversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in
accordance with Articles 5, 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,
City of Ne7
wport Beach sa,
performance, and payment, as applicable, of all Development Exactions, the issuance of all
required Final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 14.11 (as well as any other Developer obligations
set forth in this Agreement that are expressly written to survive the Tenmination 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
Dollars and 001100 ($ .00), 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 the Public Benefit Fee to the City at the time of City's issuance
of the Project's first building permit. Should the Developer fail to pay the Public Benefit Fee at
the time of the City's issuance of the Project's first building permit, the Developer shall be in
default of the Agreement, as further described in Section 8 of this Agreement.
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, that its obligation to pay the Public Benefit Fee 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 Benefit Fee 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
Benefit Fee when due, City shall have the right to withhold issuance of any further building
pen -nits, 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 Reserved
3.3 Reserved
City of Newport Beach
5-82
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 salve 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 3ninor 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.
City of Newport Beach sa,
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement or Developer consents in writing. This Section 4.2 shall not restrict City's ability to
enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to
California Government Code Section 65866 consistent with the procedures specified in Section
4.3 of this Agreement. In Pardee Construction Co. v. City oJ'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 tithing of development.
The Parties intend to avoid the result of the Parolee 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 pert -nit 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.
City of NeWport Beach ,a,
4.3.2.1 Vested Development Impact Fees. All City development impact
fees shall be fixed at the rates in place on the Agreement Date as shown on attached Exhibit C.
Fees and charges levied by any other (i.e., non -City) governmental agency or public utility
company with jurisdiction over the Property or the Project shall not be fixed in place by the
Development Agreement.
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; provided except where the extent
the timing, value, scope and/or extent of a particular Development Exaction for the Project has
been established and fixed by City in this Agreement, the Project's conditions of approval, or the
Development Regulations. 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
pennit, grading permit, inspection, and similar fees unposed 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
City of NeWport Beach sa,
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 or Developer in resolving the
conflict in a manner which minimizes any financial impact of the conflict upon Developer. City
also agrees to process in a prompt manner Developer's proposed changes to the Project and any
of the Development Regulations as may be necessary to comply with such overriding federal,
state, or City law or regulation; provided, however, that the approval of such changes by City
shall be subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official polity that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably deternuned
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 uniform 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 tends 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).
5. Amendment or Cancellation of Agreement
This Agreement may he amended or canceled in whole or in part only by mutual written
and executed consent of the Parties in compliance with California Government Code Section
65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral tennination by
City in the event of an uncured default of Developer.
City of NeWport Beach Safi
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 any 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 cormnence 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.
City of NeWport Beach ,a,
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 ljy Developer.
If Developer is alleged to have committed Default and it disputes the claimed Default, it
may make a written request for an appeal hearing before the City Council within ten (10)
calendar days of receiving the Notice of Default, and a public hearing shall be scheduled at the
next available City Council meeting to consider Developer's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) calendar day period
shall waive any right to a hearing on the claimed Default. If Developer's appeal of the Notice of
Default is timely and in good faith but after a public hearing of Developer's appeal the City
Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual
date for commencement of the thirty (30) calendar day Cure Period provided in Section 8.1 shall
be extended until the City Council's denial of Developer's appeal is communicated to Developer
in writing.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Developer Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Developer with the opportunity
to cure the Default within the Cure Period, as provided in Section 8.1, and complying with
Section 8.2 if Developer timely appeals any Notice of Default. A termination of this Agreement
by City shall be valid only if good cause exists and is supported by evidence presented to the
City of NeWport Beach ,ap
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 ninety (90) 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
City of NeWport Beach sa,
Section 8.1 Q. 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 sale 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 .Maicure.
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 perfonnance of
a monetary obligation, including without limitation Developer's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
City of NeWport Beach 5-90
10. Indemnity Obligations of Developer.
10.1 Indemnity Arising From Acts or Omissions of Developer,
Except to the extent caused by the intentional misconduct or gross negligent acts, errors
or omissions of City or one (1) or more of City's officials, employees, agents, attorneys, and
contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and
hold harmless City and City's Affiliated Parties from and against al.l 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 have the
right, in its sole discretion, to select and retain counsel to defend any Claim filed against City
and/or any of City's Affiliated Parties, and Developer shall pay the reasonable cost for defense of
any Claim. 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 l a. 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 Plan approvals 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. 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 Clain and City shall cooperate with Developer in the
defense of such Claim. Developer shall not be responsible to indemnify, defend, and hold City
harmless from such Claim until Developer is so notified and if City fails to cooperate in the
defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless
City during the period that City so fails to cooperate or for any losses attributable thereto. City
shall be entitled to retain separate counsel to represent City against the Claim and the City's
reasonable defense costs for its separate counsel shall be included in Developer's indemnity
obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to
minimize the total litigation expenses incurred by Developer. In the event either City or
Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts
from the party or parties asserting the Claim, Developer shall be entitled to retain the same
(provided it has fully perfonned 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.
City of NeWport Beach ,,,
10.3 Environmental Indemnity.
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 (ill) 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 continence on the Effective Date
occurs, and shall survive the Termination Date.
11. Assignment.
Developer shall have the right to sell, transfer, or assigm (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 became 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 cat 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 obtain the City's written approval to the 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.
City of NeWport Beach s„
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
obligations set forth in or arising under this Agreement unless there is full satisfaction of all of
the following conditions, in which event the transferring Developer shall be automatically
released from any and all obligations with respect to the portion of the Property so Transferred:
(i) the transferring Developer no longer has a legal or equitable interest in the portion of the
Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
Developer is not then in Default under this Agreement and no condition exists that with the
passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring Developer has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor Developer either (A) provides City with substitute security
equivalent to any security previously provided by the transferring Developer to City to secure
performance of the successor Developer's obligations hereunder with respect to the Property, or
interest in the Property, or the portion of the Property so Transferred, as detennined in the City's
sole discretion, or (13) 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), (13), shall be documented in writing.
12, Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or liinit 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 MortuRee 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) shah 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
City of NeWport Beach ,,,
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Developer is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee, Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) calendar days after receiving a Notice of Default with respect to a monetary
Default and within sixty (60) calendar days after receiving a Notice of Default with respect to a
non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by
obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain
possession with diligence and continuity through a receiver or otherwise, and to remedy or cure
the non -monetary Default within sixty (60) calendar days after obtaining possession and, except
in case of emergency or to protect the public health or safety, City may not exercise any of its
judicial remedies set forth in this Agreement to tenninate or substantially alter the rights of the
Mortgagee until expiration of the sixty (60) calendar day period. In the case of a icon-fonetary
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 pennitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Parry, it either shall
be personally delivered to the Party; deposited in the United States snail, 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
City of NeWport Beach
5-94
With a copy to: City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
TO DEVELOPER: Robert Eres
Vivante Newport Center, LLC
1 MacArthur Place, Suite 300
Santa Ana, CA 92707
With a copy to: Insert Developer's Atty Contact Information
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
(i i) three 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 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 perfonnance 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.
City of NeWport Beach s„
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) calendar days following receipt.
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 perfonnance 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 Parry'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 Agrccinent.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
14.11 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that no Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of
the benefits of this Agreement if any of Developer's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Developer shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Developer's obligations under this Agreement. The provisions
of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
city of NeWport E sgfi
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 Section 11.
14.14 No Third Partv Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
14.15 ARplicable Law and Venue.
This Agreement small be construed and enforced consistent with the laws of the State of
California, without regard to conflicts of law principles. Any action at law or in equity arising
under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
14.16 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
City of NeWport Beach s„
14.17 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference.
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 Grange
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 Tennination Date.
[SIGNATURE PAGE FOLLOWS]
City of NeWport Beach
5-98
E.�IR7►1r11 l�iI��ZLl��.1Zi1D �iL��11.�uTL�i�Llf���I-�i► l �►1� y
ATTEST:
Leilani I. Brown, City Cleric
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
, Attorney for Developer
"DEVELOPER"
VIVANTE NEWPORT CENTER, LLC, a
Delaware limited liability company
By: VIVANTE NEWPORT HOLDINGS LLC
It's Managi€ig Member
Name:
Title:
Naive:
Titte:
"CITY"
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
Diane B. Dixon, Mayor
City of NeWport Beach
5-99
DRAFT
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
101611 i:IMM19-
On I , before me,
(here insert name and title orthe ❑rficc--r}
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 helshelthey 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
personally appeared
, before me,
(here insert name and title o£the officer)
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)
City of NeWport Beach
5-100
I W:i 111-31-1>rl
LEGAL DESCRIPTION OF PROPERTY
PARCEL A:
PARCEL 2, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS
SHOWN ON A MAP FILED IN BOOK 81, PAGES 8 AND 9 OF PARCEL MAPS, IN THE
OFFICE OF
THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, GAS, MINERALS, MINERAL
RIGHTS, NATURAL
GAS RIGHTS, AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID
LAND, AND THE
RIGHT TO GRANT AND TRANSFER THE SAME, TOGETHER WITH ALL NECESSARY
AND
CONVENIENT RIGHTS TO EXPLORE FOR, DEVELOP, PRODUCE AND EXTRACT AND
TAKE THE
SAME, SUBJECT TO THE EXPRESS LIMITATION THAT ANY AND ALL OPERATIONS
FOR THE
EXPLORATION, DEVELOPMENT, PRODUCTION, EXTRACTION AND TAKING OF
ANY OF SAID
SUBSTANCES SHALL BE CARRIED ON AT LEVELS BELOW THE DEPTH OF FIVE
HUNDRED (500)
FEET FROM THE SURFACE OF SAID LAND BY MEANS OF WELLS, DERRICK
EQUIPMENT FROM SURFACE LOCATIONS ON ADJOINING OR NEIGHBORING LAND,
AND
SUBJECT FURTHER TO THE EXPRESS LIMITATION THAT THE FOREGOING
RESERVATION SHALL
IN NO WAY BE INTERPRETED TO INCLUDE ANY RIGHT OF ENTRY IN AND UPON
THE SURFACE
OF SAID LAND, AS RESERVED BY THE IRVINE COMPANY, A CORPORATION
ORGANIZED UNDER
THE LAWS OF THE STATE OF WEST VIRGINIA IN A DEED RECORDED FEBRUARY
28, 1977 AS
INSTRUMENT NO.35908 IN BOOK 12085, PAGE 1561 OF OFFICIAL RECORDS.
EvIi ► f'Epalt"MIR
PARCEL B:
PARCEL 2 AS SHOWN ON EXHIBIT'B' ❑F NEWPORT BEACH LOT LINE
ADJUSTMENT NO. 95-3
City of Newport Beach
5-101
RECORDED OCTOBER 31, 1995 AS INSTRUMENT NO. 19950483821 OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE,
STATE OF CALIFORNIA.
EXCEPTING THEREFROM 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
SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY
DRILL AND MINE FROM LANDS OTHER THAN THE LAND, 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 REDRLLL,
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 IN A DEED RECORDED
NOVEMBER 22, 1995 AS
INSTRUMENT NO. 19950519960 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR
INTERESTS THEREIN
APPURTENANT OR RELATING TO THE LAND OR OWNED OR USED BY THE IRVINE
COMPANY IN
CONNECTION WITH OR WITH RESPECT TO THE LAND (NO MATTER HOW
ACQUIRED BY THE
IRVINE COMPANY), WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN,
OVERLYING,
APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED,
STATUTORY OR
CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL,
REDRILL,
City of Newport Beach
5-102
REMOVE AND STORE THE SAME FROM OR IN THE LAND OR TO DIVERT OR
OTHERWISE
UTILIZE SUCH WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED
OR LEASED
BY THE IRVINE COMPANY; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER
UPON THE
SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY
THE IRVINE
COMPANY, A MICHIGAN CORPORATION IN A DEED RECORDED NOVEMBER 22,
1995 AS
INSTRUMENT NO. 19950519960 OF OFFICIAL RECORDS.
APN: 442-261-17
AN APPURTENANT NON-EXCLUSIVE JOINT ACCESS EASEMENT FOR ACCESS,
INGRESS AND
EGRESS OVER THAT PORTION OF PARCEL I AS SHOWN ON EXHIBIT "B" OF
NEWPORT BEACH
LOT LINE ADJUSTMENT NO. 95-3 RECORDED OCTOBER 31, 1995 AS INSTRUMENT
NO.
19950483821 OF OFFICIAL RECORDS, AS MORE FULLY DESCRIBED IN THE
DECLARATION OF
EASEMENTS RECORDED OCTOBER 31, 1995 AS INSTRUMENT NO. 19950484848 OF
OFFICIAL
RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF SAID
PARCEL 1; THENCE
NORTHERLY ALONG THE EASTERLY PARCEL LINE OF SAID PARCEL I NORTH 071,
03' 01" WEST
55.00 FEET; THENCE SOUTH 82' 56' 59" WEST 65.00 FEET; THENCE SOUTH 07' 03' 01"
EAST
55.00 FEET TO A POINT ON THE MOST SOUTHERLY LINE OF SAID PARCEL 1, SAID
POINT
BEING ALSO ON THE MOST NORTHERLY RIGHT OF WAY LINE OF SAN CLEMENTE
DRIVE;
THENCE EASTERLY ALONG SAID SOUTHERLY LINE AND SAID RIGHT OF WAY
LINE NORTH 820
56' 59" EAST 65.00 FEET TO THE POINT OF BEGINNING.
City of Newport Beach
5-103
EXHIBIT B
SITE MAP
City of Newport Beach
5-104
pwroki
EX141BIT C
VESTED DEVELOPMENT IMPACT FEES
Impact Fee Estimate:
■ Fair Share Fees
$895 per dwelling unit (elderly residential) x 90 DU
=$80,55d
Credit applied for existing nonresidential floor area
• San Joaquin Transportation Corridor Fees -Zone B
$2,5951DU x 0.5 x 99DU = 5128,452.50 (in accordance with interpretation 87-
1, fees for congregate care are charged at the multi -family rate times one half
of the total number of dwelling units)
No credit applied for existing floor area since property is currently tax exempt
City of Newport Beach
5-106
Planning Commission Resolution No. PC2019-021
Pape 30 of 44
Exhibit "F"
Conditions of Approval
(Project -specific conditions are in italics)
PLANNING DIVISION
1. The development shall be in substantial conformance with the Property site plan, floor
plans and building elevations stamped and dated with the date of this approval (except as
modified by applicable conditions of approval).
2. This approval authorizes ninety (90) dwelling units of senior housing/congregate care
and twenty-seven (27) beds for a memory care facility as a Residential Care Facility for
the Elderly, as specified in the adopted Planned Community Development Plan.
3, The Project shall adhere to the development standards established in the amended PC-
19 Development Plan for the Project site.
4. The Applicant shall comply with all Project design features, mitigation measures, and
standard conditions contained within the approved mitigation monitoring reporting
program (MMRP) of the E1R Addendum (SCH No. 2016021023) for the Project.
5. The Project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
6. All proposed signs shall be in conformance with the provisions of PC-19 and Chapter
20.42 (Sign Standards} of the NBMC.
7. Prior to the issuance of building permits, Fair Share Traffic Fees shall be paid for the new
elderly residential dwelling units (currently $895.00 per new additional dwelling unit) in
accordance with Chapter 15.38 (Fair Share Traffic Contribution Ordinance) of the NBMC.
A credit for the existing commercial square footage shall be applied toward this fee and
any remaining balance shall be charged to the Applicant.
8. Prior to the issuance of buildin-g permits, San Joaquin Transportation Corridor fees shall
be paid at the multi -family rate (currently $2,595 per dwelling unit times one half for each
new senior housing unit) and at the nonresidential rate (currently $5.68 per square foot), if
applicable, in accordance with the Zone B fees identified in the City's fee schedule. Fees
may not apply if the property is considered property tax exempt, to be determined at the
time of building permit issuance.
9. Prior to issuance of final building permits, the Applicant shall prepare a written disclosure
statement prior to sale, lease, or rental of a residential unit in the proposed mixed -use
development consistent with Section 29.48.130.H (Notification to Owners and Tenants) of
the Municipal Code.
"" City of Newport E
5-107
Planning Commission Resolution No. PC2019-021
Pape 31 of 44
10. Prior to issuance of final building permits, the Applicant shall record a deed notification
with the County Recorder's Office approved as to form by the Office of the City Attorney
consistent with Section 20.48.130.1(Deed Notification), The deed notification shall state
that the residential units are located in a mixed -use project or in a mixed -use zoning
district 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.).
11. Any material changes in operational characteristics, including but not limited to the
following, may require an amendment to this use permit or issuance of a new use permit
as determined by the Community Development Director:
a. Expiration without renewal, or permanent loss of a Department of Social Services
(DSS) license as a Residential Care Facility for the Elderly (RCFE).
b. Change in on -site staffing that creates a deficiency in parking supply or results in a
parking impact to surrounding properties.
c. Increase in physical capacity of facility and increases in floor area of facility.
d. Request for amendment to any condition or conditions of approval.
12. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00
p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the
Director of Community Development, and may require an amendment to this Use
Permit.
13, All residents, visitors, and employees shall park on -site. Parking on any streets is strictly
prohibited.
14. Prior to the issuance of the final certificate of occupancy, the Operator shall obtain
approval of an RCFE license from the DSS and maintain a DSS license at all times for
the memory care facility. The use shall be operated in compliance with applicable State
and local laws.
15. The Operator shall comply with the Business License provisions of the Municipal Code.
16, The Operator shall provide and maintain public notice of the Regional DSS Office and
the Long -Term Ombudsman addresses and phone numbers for receiving inquiries
andlor complaints in reference to the operation of its facility.
17. The Operator shall not allow more than two residents in one bedroom for the senior
housing dwelling units.
18. Smoking on -site shall be restricted to a designated area that will prevent second-hand
smoke from traveling to the adjacent properties. This area shall be identified on the final
construction drawings.
"" City of Newport c
5-108
Planning Commission Resolution No. PC2019-021
Pape 32 of 44
19. On -site assembly -type amenities within the property are limited solely to use by the
residents of the facility and their visiting guests, and facility staff during their shift.
20. Any and all medical waste generated through the operation of the facility shall ,be
disposed of in accordance with the NBMC, and all other laws and best industry
standards and practices.
21. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
22. Prior to the issuance of buildinq permits, the trash enclosure design shall provide a
minimum of 384 square feet of trashlrecycling area and shall have a decorative Solid
roof for aesthetic and screening purposes.
23. Trash receptacles for patrons shall be conveniently located both inside and outside of
the establishment, however, not located on or within any public property or right-of-way.
24. The exterior of the business shall be maintained free of litter and graffiti at all times. The
owner or operator shall provide for daily removal of trash, litter debris and graffiti from the
premises and on all abutting sidewalks within twenty (20) feet of the premises.
25. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained
to control odors. This may include the provision of either fully self-contained dumpsters
or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning
Division. Cleaning and maintenance of trash dumpsters shall be done in compliance
with the provisions of Title 14; including all future amendments (including Water Quality
related requirements).
26. A copy of the Resolution, including conditions of approval Exhibit "A" shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
27. Prior to the issuance of building permits, the Applicant shall submit a final landscape
and irrigation plan prepared by a licensed landscape architect. These plans shall
incorporate drought tolerant plantings and water efficient irrigation practices, and the
plans shall be approved by the City Urban Forester and the Planning Division. The
design shall comply with NBMC Chapter 14.17 (Water -Efficient Landscaping).
28. All landscape materials and irrigation systems shall be maintained in accordance with
the approved landscape plan. All landscaped areas shall be maintained in a healthy and
growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All
landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be
kept operable, including adjustments, replacements, repairs, and cleaning as part of
regular maintenance.
"" City of Newport c
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29. The Property shall be in compliance with Section 20.30.070 (Outdoor Lighting) of the
NBMC- If in the opinion of the Community Development Director, the illumination creates
an unacceptable negative impact on surrounding land uses or environmental resources,
the Director may order the dimming of light sources or other remediation upon finding
that the site is excessively illuminated.
30. Prior to the issuance of building permits, the Applicant shall prepare a photometric study
in conjunction with a final lighting plan for approval by the Planning Division. The survey
shall show that lighting values are 1" or less at all property lines, unless otherwise
approved by the Community Development Director.
31. Prior to the issuance of a building permit, the Applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division.
32. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 (Community Noise Control) of the NBMC and other applicable noise control
requirements of the NBMC. The maximum noise shall be limited to no more than
depicted below for the specified time periods unless the ambient noise level is higher:
Between the hours of 7 a.m, and
10 P.M.
Between the hours of 10 p.m.
and 7 a.m.
Location
Interior
Exterior
I nterior
Exterior
Residential Property
45dBA
55dBA
40dBA
50dBA
Residential Property located within
100 feet of a commercial property
45dBA
6QdBA
45dBA
5QdBA
Mixed Use Property
45dBA
60dBA
45dBA
50dBA
Commercial Property
NIA
65dBA
N/A
60dBA
33. Construction activities shall comply with NBMC Section 10.28.040 (Construction Activity
- Noise Regulations), which restricts hours of noise -generating construction activities
that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through
Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise -generating construction
activities are not allowed on Sundays or Holidays.
34. No outside paging system shall be utilized in conjunction with this establishment.
35. Storage outside of the building in the front or at the rear of the property shall be
prohibited, with the exception of the required trash container enclosure.
36. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on -site
media broadcast, or any other activities as specified in the Newport Beach Municipal
Code to require such permits.
08-10-18 City o Newport E.. �' 1, 5-110
Planning Commission Resolution No. PC2019-021
Pape 34 of 44
37. A valet plan shall be reviewed and approved by Public Works prior to the first use of valet
service. The approved valet plan shall be used for each eventlholiday. Any changes to
the approved plan requires approval of the Public Works Department.
38. Prior to issuance of any building permit, the Applicant shall provide satisfactory evidence
that a Native American monitor has been retained to observe the site when construction
activities occur in native soils. In the event that tribal cultural resources are discovered, the
Native American monitor shall be included in the consultation on the recommended next
steps.
39. Prior to issuance of any building ,Hermit, the Applicant shall submit a construction
management and delivery plan to be reviewed and approved by the Public Works and
Community Development Departments. The plan shall include discussion of Project
phasing; parking arrangements for both sites during construction (including construction
parking); anticipated haul routes; and construction mitigation. Upon approval of the plan,
the Applicant shall be responsible for implementing and complying with the stipulations set
forth in the approved plan.
40. This approval may be modified or revoked by the Planning Commission should they
determine that the proposed uses or conditions under which it is being operated or
maintained is detrimental to the public health, welfare or materially injurious to property
or improvements in the vicinity or if the property is operated or maintained so as to
constitute a public nuisance.
41. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Use Permit or the processing of
a new Use Permit.
42. Should the property be sold or otherwise come under different ownership, any future
owners or assignees shall be notified of the conditions of this approval by either the
current business owner, property owner or the leasing agent.
43. The term and expiration of Lot Merger No. LM2018-004, Major Site Development Review
No. SD2018-003 and Conditional Use Permit No. UP2018-019 shall be governed by
Development Agreement No. DA2018-005.
44. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless
City, its City Council, its boards and commissions, officials, officers, employees, and agents
from and against any and all claims, demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including
without limitation, attorney's fees, disbursements and court costs) of every kind and nature
whatsoever which may arise from or in any manner relate (directly or indirectly) to City's
approval of Vivante Senior Housing including, but not limited to, General Plan Amendment
No. GP2018-003, Planned Community Development Plan Amendment No. PC2018-001,
Development Agreement No. DA2018-005, Major Site Development Review No. SD2018-
003, Conditional Use Permit No. UP2018-019, Lot Merger No. LM2018-004. and EIR
Addendum No. ER2016-002 (PA2018-185). This indemnification shall include, but not be
"" City of Newport t
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Planning Commission Resolution No. PC2019-021
Pape 35 of 44
limited to, damages awarded against the City, if any, costs of suit. attorneys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by Applicant, City, andlorthe parties initiating or bringing such
proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees,
and damages which City incurs in enforcing the indemnification provisions set forth in this
condition. The Applicant shall pay to the City upon demand any amount owed to the City
pursuant to the indemnification requirements prescribed in this condition.
POLICE DEPARTMENT
45. Alcohol service be limited to T-00 a.m. through 11:00 p.m.; daily.
46. Alcohol service shall be limited to a Type 47 (On Sale General) and Type 57 (Special
On Sale General) Alcoholic Beverage Control License.
47. Only residents and their guests may be served in the dining halls, cafe, and lounge areas.
The dining halls, cafe. and lounge areas shall not be open to the general public for food
andlor alcohol service.
48. Security cameras with at least a two week retention period must be installed in and around
the alcohol consumption area in the Lounge, Cafe. and Dining Hall areas. Those
recordings shall be made available to police upon request in a timely manner.
49. All owners, managers and employees selling alcoholic beverages shall undergo and
successfully complete a certified training program in responsible methods and skills for
selling alcoholic beverages within sixty (60) days of hire. This training must be updated
every three (3) years regardless of certificate expiration date. The certified program must
meet the standards of the certifying/licensing body designated by the State of California.
The establishment shall comply with the requirements of this section within sixty (60)
days of approval. Records of each owner's, manager's, and employee's successful
completion of the required certified training program shall be maintained on the premises
and shall be presented upon request by a representative of the City of Newport Beach.
50. Approval does not permit the premises to operate as a "bar, tavern, cocktail lounge or
nightclub" as defined by the Newport Beach Municipal Code. The Newport Beach
Municipal Code defines bars, lounges, and nightclubs as an establishment that sells or
serves alcoholic beverages for consumption on the premises and is holding or applying for
a public premises license from the California State Department of Alcoholic Beverage
Control (ABC) (i.e. ABC License Type 42 (On -Sale Beer and Wine — Public Premises),
ABC License Type 48 (On -Sale General — Public Premises), and ABC License Type 61
(On -Sale Beer — Public Premises)). Persons under twenty-one (21) years of age are not
allowed to enter and remain on the premises. The establishment shall include any
immediately adjacent area that is owned, leased, rented, or controlled by the licensee.
51. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
"" City of Newport c
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Pape 36 of 44
52. Petitioner shall not share any profits or pay any percentage or commission to a promoter
or any other person based upon monies collected as a door charge, cover charge, or any
other form of admission charge, including minimum drink orders or the sale of drinks.
53. Food service from the regular menu shall be available at all times when alcohol is served.
54. Strict adherence to maximum occupancy limit is required.
55. The operator shall be responsible for the control of noise generated by the subject facility.
All noise generated by the proposed use shall comply with the provisions of Chapter 10.26
and other applicable noise control requirements of the Newport Beach Municipal Code.
56. The operator shall take reasonable steps to discourage and correct objectionable
conditions that constitute a nuisance in all areas surrounding the alcoholic beverage outlet
and adjacent properties during business hours.
BUILDING DIVISION
57. A full building code, accessibility, and structural review will be performed at the time of
plan review submittal.
5& The Applicant is required to obtain all applicable permits from the City's Building Division.
The construction plans must comply with the most recent, City -adopted version of the
California Building Code (CBC). The construction plans must meet all applicable State
Disabilities Access requirements.
59. All new construction shall comply with the latest code edition at the time of plan check
submittal. Current code cycle is 2016 California Code Edition with Newport Beach
Municipal Code Amendments.
60. Prior to gradinq permit issuance, a grading bond shall be required in accordance with
Section 15.10. 080_(Sonds) of the NBMC.
61. Prior to gradinq permit issuance, a geotechnical report shall be submitted to the Building
Division for review.
62. Prior to issuance of grading permits, the Applicant shall prepare and submit a Wafer
Quality Management Plan (WQMP) for the Project, subject to the approval of the
Building Division and Code and Water Qualify Enforcement Division. The WQMP shall
provide appropriate Best Management Practices (BMPs) to ensure that no violations of
water qualify standards or waste discharge requirements occur.
63. Prior to grading permit issuance, a drainage and hydrology study shall be submitted.
64. Prior to issuance of building permits, the Project shall obtain a general construction
NPDES storm wafer permit from the State Water Resources Control Board. Tel. (909)
782-4 130.
"" City of Newport L
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Planning Commission Resolution No. PC2019-021
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65. Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan
(SWPPP) and Notice of Intent (NOI) to comply with the General Permit for Construction
Activities shall be prepared, submitted to the State Water Quality Control Board for
approval and made part of the construction program. The Applicant will provide the City
with a copy of the NOI and their application check as proof of filing with the State Water
Quality Control Board. This plan will detail measures and practices that will be in effect
during construction to minimize the Project's impact on water quality. The SWPPP
Report shall prepared by a qualified SWPPP Developer (QSD)
ttp://cfpub.epa.gov/npdes/stormwater/swppp.cfm j.
66. The Applicant shall employ the following best available control measures (' BACMs") to
reduce construction -related air quality impacts:
Dust Control
• Water all active construction areas at least twice daily.
• Cover all haul trucks or maintain at least two feet of freeboard.
• Pave or apply water four times daily to all unpaved parking or staging areas.
• Sweep or wash any site access points within two hours of any visible dirt deposits
on any public roadway.
• Cover or water twice daily any on -site stockpiles of debris, dirt or other dusty
material.
• Suspend all operations on any unpaved surface if winds exceed 25 mph.
Emissions
• Require 90-day low-NOx tune-ups for off road equipment.
• Limit allowable idling to 30 minutes for trucks and heavy equipment
Off -Site Impacts
• Encourage carpooling for construction workers.
• Limit lane closures to off-peak travel periods.
• Park construction vehicles off traveled roadways.
• Wet down or cover dirt hauled off -site.
• Sweep access points daily.
• Encourage receipt of materials during non -peak traffic hours.
• Sandbag construction sites for erosion control.
Fill Placement
• The number and type of equipment for dirt pushing will be limited on any day to
ensure that SCAQM❑ significance thresholds are not exceeded.
• Maintain and utilize a continuous water application system during earth
placement and compaction to achieve a 10 percent soil moisture content in the
top six-inch surface layer, subject to review/discretion of the geotechnical
engineer.
67. A list of "good housekeeping" practices will be incorporated into the long-term post -
construction operation of the site to minimize the likelihood that pollutants will be used,
stored or spilled on the site that could impair water quality. These may include frequent
parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful
fertilizers or pesticides, and the diversion of storm water away from potential sources of
"" City of Newport c
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Planning Commission Resolution No. PC2019-021
Pape 38 of 44
pollution (e.g., trash receptacles and parking structures). The Stage 2 WQMP shall list
and describe all structural and non-structural BMPs. in addition, the WQMP must also
identify the entity responsible for the long-term inspection, maintenance, and funding for
all structural (and if applicable Treatment Control) BMPs.
fib. Prior to the issuance of building permits, Applicant shall provide full building code
analysis on occupancy. type of construction, actuallallowable floor area,
acfuallallowable height, number of stories, sprinkler system, etc.
fig. Prior to the issuance of buildingpermits, Applicant shall provide a full egress analysis
plan.
70, Prior to the issuance of building permits, Applicant shall provide building or structure
setbacks from top and bottom of slope as shown in CBC; Fig. 1808.7.1. For descending
slopes less than 12 feet in height, minimum setback from competent slope face material
shall be 4 feet.
71. Prior to the issuance of building permits, Applicant shall provide accessible routes
throughout the entire site such as parking lot area, public area. common area, and all
pedestrian circulations.
72. Prior to the issuance of buildinq permits, Applicant shall clearly distinguish between the
public and common area on the plan. Any public areas within the building shall comply
with Title 24 Chapter 11B; and all ground -floor dwelling units and common areas shall
comply with Title 24 Chapter 11A.
73. Prior to the issuance of buildingpermits, the plans shall reflect all ground -floor units shall
be adaptable and accessible.
74. Prior to the issuance of building permits, accessible parking spaces shall be provided
for the public use areas in accordance with Section 11B-208.2.
75. Prior to the issuance of buildinq permits, accessible parking spaces shall be provided
for unassigned and visitor parking in accordance with Section 1109A.5, in the event
provided parking stalls are insufficient.
76, if any public funding is received for the proposed Project, the entire building will need to
comply with CB 11B as public housing requirements.
77. Prior to the issuance of building permits, building areas used to determine based on the
type of construction and occupancy classification shall be the area include within
surrounding exterior walls exclusive of vent shafts and courts. See definition of `'Area,
Building'' under CBC.
78. Prior to the issuance of buildinq permits, Applicant shall idenfifylclarify all the dotted fines
shown on the civil drawings.
"" City of Newport E
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Planning Commission Resolution No. PC2019-021
Pape 39 of 44
79. Prior to the issuance of building permits, the plans shall reflect that the proposed building
shall not impose surcharge pressures onto existing neighboring retaining walls.
80. Prior to the issuance of building permits, the plans shall reflect that the exit enclosure
located at the south wing shall discharge directly out of the building or via passageway.
81, Prior to the issuance of building permits, the plans shall reflect a minimum two-hour
rated exit enclosure stairway. This will be required when connected to four or more
stories.
82. Prior to the issuance of building permits, the plans shall reflect where the means of
egress from stories above and below converge at an intermediate level, the capacity of
the means of egress from the point of convergence shall be not less than the largest
minimum width or the sum of the required capacities for the stairways serving the two
adjacent stories, whichever is larger (CBC 1005.7)
83. Prior to the issuance of building permits, the plans shall provide elevator lobby and
hoistway opening protection in accordance with CBC Section 3006.
84. Prior to the issuance of building permits, the plans shall identify the pool equipment and
list the quantity of all hazardous materials stored on -site.
FIRE DEPARTMENT
85. The Applicant is required to obtain all applicable permits from the City's Fire Department
86. Per California Fire Code (CFC) Section 907.2.9 Group R-2.1. fire alarm systems and
smoke alarms shall be installed in Group R-2.1 occupancies as required in Sections
907.2.9.1 and 907.2.9.4.
87, A manual fire alarm system that activates the occupant notification system in
accordance with Section 907.5 shall be installed in Group A occupancies where the
occupant load due to the assembly occupancy is 300 or more (CFC Section 907.2.1).
88. Automatic sprinkler systems shall be designed and installed in accordance with Section
903.3.1 through 903.3.9 (CFC Section 903.3).
89. Single or multiple station smoke alarms shall be installed and maintained in Group R-
2.1 in the following locations:
a. On the ceiling or wall outside of each, separate sleeping area in the immediate
vicinity of bedrooms.
b. In each room used for sleeping purposes.
90. Fire apparatus access roads shall meet the requirements of CFC Section 503.1.1 and
Newport Beach Fire Department Guideline C.01 and C.02. The fire apparatus access
road shall extend to within 150 feet of all portions of the facility and all portions of the
"" City of Newport E
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Planning Commission Resolution No. PC2019-021
Pape 40 of 44
exterior walls of the first story of the buildings as measured by an approved route around
the exterior of the building or facility.
91. Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided
with an approved cul-de-sac for turning around the fire apparatus without backing up.
Turnarounds shall meet the turning radius requirements identified in Newport Beach Fire
Department Guideline C.01. The minimum cul-de-sac radius is 40 feet without parking.
An alternative hammerhead turnaround is acceptable, designed to the dimensions as
indicated in Newport Beach Fire Department Guideline C.01.
92. Fire access roadways must be constructed of a material that provides an all-weather
driving surface and capable of supporting 72,000 pounds imposed load for fire
apparatus and truck outrigger loads. Calculations stamped and signed by a Registered
Professional Engineer shall certify that the proposed surface meets the criteria of an aJl-
weather driving surface and is capable of withstanding the weight of 72,000 pounds
(Newport Beach Fire Department Guideline C.01).
93. An approved water supply capable of supplying the required fire flow for fire protection
shall be provided to premises upon which facilities and buildings are hereafter
constructed or moved into or within the jurisdiction (CFC Section 507.1).
94. Fire flow shall be determined as per City Guideline B.01 (CFC 507.3).
95. Fire hydrants shall be provided and located within 400 feet of all portions of the building
(CFC Section 507.5.1).
96. The Fire Department Connection (FDC) shall be on the address side of the building and
located a minimum of 30 feet from beginning of the radius for the driveway approach;
arranged so they are located immediately adjacent to the approved fire department
access road so that hose lines can be readily and conveniently attached to the inlets
without interference from nearby objects including building, fence, posts, or other fire
department connections (Newport Beach Fire Department Guideline F.04).
97. The FDC shall be located no more than 100 feet from a public hydrant (Newport Beach
Fire Department Guideline F.04).
98, Public Safety Radio Coverage will be required as per CFC Section 510.1 and City
Guideline D.05.
99. Standby power shall be provided for emergency responder radio coverage systems as
required in Section 510.4.2.3. The standby power supply shall be capable of operating
the emergency responder radio coverage system for a duration of not less than 24 hours
(CFC Section 604.2.3).
100. Asper Amendment to CFC Section 604.8, provide and install electrical outlets (120 volt,
duplex) connected to the emergency generator circuitry system when a generator is
"" City of Newport E
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Planning Commission Resolution No. PC2010-021
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required by Section 604.2 of the CFC in every fire control room and in other areas as
may be designated by the fire code official in the following locations:
a. In the main exit corridor of each floor adjacent to each exit enclosure,
b. 4n every level in every stairwell;
c. In each elevator lobby;
d. In public assembly areas larger than 1,500 square feet;
e. In every fire control room: and
f. In such other areas as may be designated by the fire code official.
101. Gurney -sized accessible elevator will be required with elevator recall as per CFC
Section 607 and CBC Section 3002.
102. A Type 1 hood shall be installed at or above all commercial cooking appliances and
domestic cooking appliances used for commercial purposes that produce grease vapors
(CFC Section 609.2).
103. Each required commercial kitchen exhaust hood and duct system required by Section
609 to have a Type I hood shall be protected with an approved automatic fire
extinguishing system installed in accordance with this code (CFC Section 904.2.2).
104. Separation walls and horizontal separations must be provided as per California Building
Code (CBC) Sections 420.2 and 420.3
105. Smoke barriers shall be provided in Group R-2.1 to subdivide every story used by
persons receiving care, treatment or sleeping and to provide other stories with an
occupant load of 50 or more persons; into no fewer than two smoke compartments.
Such stories shall be divided into smoke compartments with an area of not more than
22.500 square feet and the distance of travel from any point in a smoke compartment to
a smoke barrier door shall not exceed 200 feet. The smoke barrier shall be in
accordance with CFC Section 709.
106. Refuse areas shall be provided within each smoke compartment as per California
Building Code (CBC) Section 420.4.1.
107. Licensed 24-hour care facilities in a Group R-2.1, R-3.1 or R-4 occupancy shall comply
with CBC Section 435 for special provisions for licensed 24-hour care facilities in a
Group R-2.1, R3.1 or R-4 occupancy.
108. Carbon dioxide systems with more than 100 pounds of carbon dioxide used in beverage
dispensing applications shall comply with CFC Sections 5307.2 through 5307.5.2 (CFC
Section 5307.1 and City Guideline E.04).
109. Where carbon dioxide storage tanks, cylinders, piping and equipment are located
indoors, rooms, or areas containing carbon dioxide storage tanks, cylinders, piping and
fittings and other areas where a leak of carbon dioxide can collect shall be provided with
either ventilation in accordance with Section 5307.5.1 or an emergency alarm system in
accordance with Section 5307.5.2 (CFC Section 5307.5).
"" City of Newport t
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Planning Commission Resolution No. PC2019-021
Pape 42 of 44
110. Underground Fire line shall be designed as per Newport Beach Fire Department
Guideline F.04.
PUBLIC WORKS DEPARTMENT
111. All improvements shall be constructed as required by Ordinance and the Public Works
Department.
112. Reconstruct the existing broken andlor otherwise damaged concrete sidewalk panels,
curb, and gutter along the San Clemente Drive frontage.
113. Water and sewer demand studies are required.
114. All unused sewer laterals to be abandoned shall be capped at the property line. If the
sewer lateral to be abandoned has an existing cleanout, abandonment shall include
removal of the cleanout riser, the 4TT box and the wye. Sewer lateral shall then be
capped where the wye used to be.
115. A new sewer cleanout shall be installed on the proposed sewer lateral per STD-406-L
adjacent to the property line in the San Clemente Drive public right-of-way or within the
sewer easement.
116. Prior to the issuance of building permits and in accordance with Chapter 13 of the City
Municipal Code, 48-inch box street trees shall be planted along the San Clemente Drive
frontage. Tree species (Ficus Rubiganosa) shall be planted per Council Policy G-6.
Quantify and location of trees to be determined by Municipal Operations Division at plan
check.
117. All improvements, including the proposed landscaping at the driveway shall comply with
the City's sight distance requirement. See City Standard 110-L and Municipal Code
Section 20.30.130.
118. In case of damage done to public improvements surrounding the development site by
private construction, additional reconstruction within the public right-of-way could be
required at the discretion of the Public Works Inspector.
119. All on -site drainage shall comply with the latest City Water Quality requirements.
120. The driveway approach shall be constructed per City Standards.
121. No permanent structures can be built within the limits of the proposed and existing
easements.
122. All proposed street trees are to be located at least 10 feet away from all utility services
and driveway approaches.
"" City of Newport E
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Planning Commission Resolution No. PC2019-021
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123. All dead-end drive aisles shall be accompanied by a dedicated turnaround area and 5-
foot wide minimum hammerhead/drive aisle dedication.
124. No temporary or permanent structural encroachments will be permitted within the public
right-of-way or city easement areas, including but not limited to, caissons, tie -backs,
shoring, etc. No excavation will be permitted within the public right-of-way as part of the
foundation shoring installation.
125. Due to proposed modification or removal of existing City water and sewer facilities,
existing easements will need to be adjusted prior to recordation of the lot merger.
Applicant is responsible for the preparation of all easement documents.
126. Applicant is responsible for all utility upgrades that are required to accommodate the
Project, including off -site sewer upgrades.
127. Applicant is required to obtain approval from the adjacent property owner (888 San
Clemente Drive) regarding the proposed street end configuration and is responsible to
construct said improvements.
128. Orange County Sanitation District fees shall be paid prior to the issuance of any building
perm its.
129. Prior to commencement of demolition and grading of the Project, the Applicant shall
submit a construction management and delivery plan to be reviewed and approved by
the Public Works Department. The plan shall include discussion of Project phasing;
parking arrangements for both sites during construction; anticipated haul routes and
construction mitigation. Upon approval of the plan, the Applicant shall be responsible for
implementing and complying with the stipulations set forth in the approved plan.
130. Traffic control and truck route plans shall be reviewed and approved by the Public Works
Department before their implementation. Large construction vehicles shall not be
permitted to travel narrow streets as determined by the Public Works Department.
Disruption caused by construction work along roadways and by movement of
construction vehicles shall be minimized by proper use of traffic control equipment and
flagman.
131. Prior to the issuance of building permits, the Lot Merger shall be recorded. The Lot
Merger exhibits shall be submitted to the Public Works Department for final review and
approval. All applicable fees shall be paid.
132. Prior to the final of building permits, a secondary access easement shall be recorded for
the rear access drive across Villas Fashion Island (APN No. 442-261-22).
133. Prior to the issuance of building permits, easements for unused utilities shall be
abandoned and recorded.
UTILITIES DEPARTMENT
"" City of Newport c
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Planning Commission Resolution No. PC201 9-021
WE
Pape 44 of 44
A Standard Storm water Mitigation Plan (SSMP) is required for the private sewer system.
The SSMP shall be recorded with the property similar to a WQMP.
08-10.18
City of Newport Beach
5-121
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