HomeMy WebLinkAbout04 - Uptown Newport Planned CommunityCITY OF
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C9C /Fp0.N`P City Council Staff Report
Agenda Item No. 4
March 12, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandt @newportbeachca.gov
PREPARED BY: Rosalinh Ung, Associate Planner
APPROVED: O.
TITLE: Uptown Newport Planned Community
4311 -4321 Jamboree Road
(PA2011 -134)
ABSTRACT:
Adoption of ordinances related to the Uptown Newport Planned Community that was
approved by the City Council on February 26, 2013. The attached ordinances were
introduced at the prior meeting.
RECOMMENDATION:
1) Conduct a second reading and adopt Ordinance No. 2013 -5 (Attachment No. CC1)
approving Planned Community Development Plan Amendment No. PC2011 -003 to
remove the subject property from the Koll Center Newport Planned Community,
and approving Planned Community Development Plan Adoption No. PC2012 -001
to establish the allowable land uses, general development regulations, and
implementation and administrative procedures, which would serve as a zoning
document for the construction of up to 1,244 residential units, 11,500 square feet
of retail commercial, and 2.05 acres of park space; and
2) Conduct a second reading and adopt Ordinance No. 2013 -6 (Attachment No. CC2)
approving Development Agreement No. DA2012 -003.
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).
1
Submitted by:
_ Lid z
• C •4'
Director
Attachments: CC1 Ordinance No. 2013 -5
CC2 Ordinance No. 2013 -6
Uptown Newport Planned Community
March 12, 2013
Page 2
2
Attachment No. CC 1
Ordinance No. 2013 -5
3
11
ORDINANCE NO. 2013 -5
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING PLANNED COMMUNITY
DEVELOPMENT PLAN AMENDMENT NO. PD2011 -003 AND
PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION
NO. PC2012 -001 FOR THE 25.05 ACRE PLANNED COMMUNITY
KNOWN AS UPTOWN NEWPORT LOCATED AT 4311 -4321
JAMBOREE ROAD (PA2011 -134)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Uptown Newport LP ( "Uptown Newport" or
"Applicant ") with respect to a 25.05 -acre property generally located on the north
side of Jamboree Road between Birch Street and the intersection of Von
Karman Avenue and MacArthur Boulevard, legally described as Lots 1 and 2
of Tract No. 7953 and incorporated herein by reference, (the "Property ")
requesting approval for the development of up to 1,244 residential dwelling
units, 11,500 square feet of retail commercial uses and 2.05 acres of
parklands (the "Project "). The following approvals are requested or required in
order to implement the project as proposed:
a. Planned Community Development Plan Amendment No. PD2011 -003:
An amendment to Planned Community Development Plan #15 (Koll
Center Planned Community) to remove the subject property from the Koll
Center Planned Community, pursuant to Chapter 20.66 (Amendments) of
the Municipal Code.
b. Planned Community Development Plan Adoption No. PC2012 -001: A
Planned Community Development Plan (PCDP) adoption to establish the
allowable land uses, general development regulations, and
implementation and administrative procedures, which would serve as the
zoning document for the construction of up to 1,244 residential units,
11,500 square feet of retail commercial, and 2.05 acres of park space to
be built in two separate phases on a 25.05 -acre site, pursuant to Chapter
20.56 of the Municipal Code. The PCDP has three (3) components: 1)
Land Uses, Development Standards & Procedures; 2) Phasing Plan; and
3) Design Guidelines.
C. Tentative Tract Map No. NT2012 -002: A tentative tract map to establish
lots for residential development purposes pursuant to Title 19 of the
Municipal Code.
d. Traffic Study No. TS2012 -005: A traffic study pursuant to Chapter 15.40
(Traffic Phasing Ordinance) of the Municipal Code.
e. Affordable Housing Implementation Plan No. AH2012 -001: A program
specifying how the proposed project would meet the City's affordable
housing requirements, pursuant to Chapter 19.53 (Inclusionary Housing)
and Chapter 20.32 (Density Bonus) of the Municipal Code.
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City Council Ordinance No. 2013 -5
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f. Development Agreement No. DA2012 -003: A Development Agreement
between the applicant and the City of Newport Beach describing
development rights and public benefits, pursuant to Section
15.45.020.A.2.a of the Municipal Code and General Plan Land Use Policy
LU6.15.12.
2. The Property has a General Plan designation of Mixed -Use District Horizontal -
2 (MU -112), and the Property is located within the Airport Business Area, for
which the Airport Business Area Integrated Conceptual Development Plan
(ICDP) has been adopted. The ICDP allocates a maximum of 1,244
residential units and up to 11,500 square feet of retail to be developed on the
Property.
3. The Property is currently located within the City of Newport Beach ( "City ") Koll
Center Newport Planned Community and is designated as Industrial Site 1.
4. The Planning Commission held a study session on October 4, 2012, and
public hearings for the Project on December 6, 2012, December 20, 2012, and
February 7, 2013. At the February 7th hearing with a vote of 7 -0, the Planning
Commission adopted Resolution No. 1908, recommending certification of the
Uptown Newport Final Environmental Impact Report (SCH No. 2010051094)
and approval of the Project to the City Council.
5. The City Council held a public hearing on February 26, 2013, in the City Hall
Council Chambers, at 3300 Newport Boulevard, Newport Beach, California. A
notice of the time, place and purpose of the aforesaid meeting was provided in
accordance with CEQA and the Newport Beach Municipal Code (NBMC). The
Draft Environmental Impact Report (Draft EIR) and Final Environmental Impact
Report (Final EIR) which consists of the Comments, Responses to Comments,
and Revisions to DEIR (Draft Environmental Impact Report), Mitigation
Monitoring and Reporting Program, staff report, and evidence, both written
and oral, were presented to and considered by the City Council at the
scheduled hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. The Uptown Newport Final Environmental Impact Report (SCH No.
2010051094) was prepared for the Project in compliance with the California
Environmental Quality Act (CEQA), the State CEQA Guidelines, and City
Council Policy K -3.
2. The City Council, having final approval authority over the Project, adopted and
certified as complete and adequate the Uptown Newport Final Environmental
Impact Report, and adopted "Findings and Facts in Support of Findings for the
Uptown Newport Project Final Environmental Impact Report" ( "CEQA
Findings') containing within Resolution No. 2013 -21 on February 26, 2013,
which are hereby incorporated by reference.
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City Council Ordinance No. 2013 -5
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3. The City Council adopted a Statement of Overriding Considerations for the
certification of the Uptown Newport Final Environmental Impact Report (SCH
No. 2010051094) by Resolution No. 2013 -22 on February 26, 2013, and is
hereby incorporated reference.
4. The City Council overruled the Orange County Airport Land Use Commission's
determination that the Uptown Newport project is inconsistent with the Airport
Environs Land Use Plan for the John Wayne Airport by Resolution No. 2013-
23 on February 26, 2013, and is hereby incorporated by reference.
5. The City Council finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time
consuming. In addition, project opponents often seek an award of attorneys'
fees in such challenges. As project applicants are the primary beneficiaries of
such approvals, it is appropriate that such applicants should bear the expense
of defending against any such judicial challenge, and bear the responsibility
for any costs, attorneys' fees and damages which may be awarded to a
successful challenger.
SECTION 3. FINDINGS.
1. The proposed Project is consistent with the goals and policies of the Newport
Beach General Plan and the ICDP. The City Council concurs with the
conclusion of the consistency analysis of the proposed project with these
goals and policies provided in the Uptown Newport Final Environmental
Impact Report (SCH No. 2010051094).
SECTION 4. DECISION.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN
AS FOLLOWS:
1. The Koll Center Planned Community Development Plan (PC #15) shall be
amended to remove Industrial Site 1 with all references, allowable land uses,
and general development regulations including all written text, maps and
exhibits as depicted in Exhibit "A" attached hereto incorporated by reference.
Except as amended herein, the Koll Center Planned Community Development
Plan shall remain in full force and effect.
2. The Uptown Newport Planned Community Development Plan (PCDP) shall be
adopted to establish the allowable land uses, general development
regulations, and implementation and administrative procedures, which would
serve as the zoning document for the construction of up to 1,244 residential
units, 11,500 square feet of retail commercial, and 2.05 acres of park space to
be built in two separate phases on the Property. The PCDP has three (3)
components: 1) Land Uses, Development Standards & Procedures as
depicted in Exhibit "B "; 2) Phasing Plan as depicted in Exhibit "C "; and 3)
Design Guidelines as depicted in Exhibit "D "; attached hereto and
incorporated by reference.
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City Council Ordinance No. 2013 -5
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3. If any section, subsection, sentence, clause or phrase of this ordinance is, for
any reason, held to be invalid or unconstitutional, such decision shall not affect
the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and
each section, subsection, clause or phrase hereof, irrespective of the fact that
anyone or more sections, subsections, sentences, clauses and phrases be
declared unconstitutional.
4. This action shall become final and effective thirty days after the adoption of
this Ordinance.
5. The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall become effective thirty (30) days after the date of
its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on the 26th of February, 2013, and adopted on the 12th day of
March, 2013, by the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT, COUNCIL MEMBE
MAYOR
ATTEST:
Leilani Brown, City Clerk
APPROVED AS TO FORM,
OFFICE OF CITY ATTORNEY:
Aaron Harp, City Attorney
for the City of Newport Beach
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City Council Ordinance No. 2013 -5
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EXHIBIT A
PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PD2011 -003
9
NOTE:
City Council Ordinance No. 2013 -5
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PLANNED COMMUNITY DEVELOPMENT STANDARDS
For Kell Center Newport
Ordinance No. 1449, adopted by the City of Newport Beach August 14, 1972
(Amendment No. 313)
Original draft May 5, 1972
Amendment (1)
August 14, 1972
Amendment (2)
August 14, 1972
Amendment (3)
August 2, 1973
Amendment (4)
February 7, 1974
Amendment (5)
June 10, 1974
Amendment (6)
May 15, 1975
Amendment (7)
September 8, 1975
Amendment (8)
June 28, 1976
Amendment (9)
January 10, 1977
Amendment (10)
July 11, 1978
Amendment (11)
August 28, 1978
Amendment (12)
October 19, 1978
Amendment (13)
November 10, 1980
Amendment (14)
March 23, 1981
Amendment (15)
October 24, 1984
Amendment (16)
May 14, 1984
Amendment (17)
December 9, 1985
Amendment (18)
July 14, 1986
Amendment (19)
March 23, 1987
Amendment (20)
July 27, 1987
Amendment (21)
June 12, 1989
Amendment (22)
April 25, 1994
Amendment (23)
October 9, 1995
Amendment (24)
February 23, 1998
Amendment (25)
August 10, 1998
Amendment (26)
January 11, 2000
Amendment (27)
January 25, 2000
Amendment (28)
August 9, 2005
Ordinance No. 2006 -19 (29)
July 25, 2006
Ordinance No. 2006 -21 (30)
October 24, 2006
Ordinance No. 2011 -3 (3 1)
January 25, 2011
Ordinance No. 2011 -8(32)
March 8, 2011
Amendment (33)
2013
See Footnotes beginning on Page 47 for description of amendments.
10
CONTENTS
PREFACE
DEVELOPMENT CONSIDERATIONS
GENERAL NOTES
DEFINITIONS
PART I. INDUSTRIAL
s ear
Stafistiea4 Analysis
City Council Ordinance No. 2013 -5
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PAGE NO.
I
0)
a
1H
44
See4eH444-
Indastfial Sefyiee P. Support F-wil ties Permitted Uses
4I2
see oiriyr
4-2
PART II. COMMERCIAL
Section I.
15
Site Area and Building Area
Section H.
26
Permitted Uses
Section III.
30
General Development Standards for Commercial Land
PART III. GENERAL PARKING REQUIREMENTS
Section I.
34
PART IV. GENERAL SIGN REQUIREMENTS
Section I.
37
Sign Standards
Section H.
40
Sign Area
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City Council Ordinance No. 2013 -5
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Section III.
Maintenance
PART V. GENERAL LANDSCAPE STANDARDS
Section I.
General Statement
PAGE NO.
41
42
PART VI. FOOTNOTES 47
PART VII. ATTACHED EXHIBITS
Composite .............. ...............................
For Information Only
Exhibit A ............... ...............................
Land Use
Exhibit B ................ ...............................
Grading and Roads
Exhibit C ................ ...............................
Storm Drain
Exhibit D ............... ...............................
Water & Sewer
Exhibit E ................ ...............................
Boundary and Topography
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City Council Ordinance No. 2013 -5
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PREFACE
It is the intent of this Planned Community Development to provide comprehensive zoning for what is now
the Collins Radio property. Planned within this development are a hotel with banquet and convention
facilities, a small retail and service center, service stations, restaurants, bars and theater /nightclubs, a site
for the proposed Orange County Courthouse with the balance of the acreage developed as a business and
professional office park emphasizing open space. Refflaining within the pafk will be the exisfing Collins
Radio f4eility. it will be inearporated into the padE, designed as an integral element, and designated
within the light industrial segment.
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City Council Ordinance No. 2013 -5
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DEVELOPMENT CONSIDERATIONS (1)
This Planned Community Development is a project of The Koll Company. This area is most appropriate
for commercial and light industrial uses, and therefore we submit the enclosed air traffic analysis,
vehicular analysis, land use analysis and market analysis to substantiate this document. Attached
drawings indicate land use, grading and roads, storm drains, water and sewer, topography and traffic
analysis.
The site is comprised of approximately 179.0154.0 acres and is ee nerally bounded on the northeast by
Campus Drive, on the southeast by Jamboree Road and on the west by MacArthur Boulevard. (10) (33)
In order to insure development consistent with the master plan concept, a review shall be required. Prior
to the issuance of any building permits, a precise development plan shall be submitted by the developer to
the Planning Director for review. This precise plan shall conform to the requirements of this Planned
Community text and all other applicable codes and regulations and shall be approved prior to submission
by The Kell Company. Included in the plan review material shall be:
1. Building Criteria
a. size
b. location
c. height
d. materials
2. Parking Criteria
a. areas, including drives and accesses
b. quantity
c. size
3. Landscaped Areas
a. setbacks
b. walls
c. plazas
d. pools, fountains and/or other amenities
4. Signing Criteria
a. location
b. size
c. quantity
5. All other site improvements as directed by the Planning Director and as recommended
below. Items 5a through 5e inclusive.
HCH
City Council Ordinance No. 2013 -5
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a. Sewage System Criteria
The sewer system in the vicinity of the lake should be revised to conform
to the following criteria:
1. All sewer lines should be located such that they will not be under
water even when the lake is at its maximum level.
2. Sewer lines shall be located in 15 -foot wide (minimum) easements
and must be accessible to maintenance vehicles at all times.
3. The depth of sewer lines should not exceed 15 feet, with the
possible exception of joining the existing system at MacArthur
Boulevard.
b. Pedestrian Circulation
A pedestrian sidewalk system along the public streets shall be constructed
throughout the development. The adequacy of such system shall be
analyzed independently of any on -site pedestrian walkway system
proposed for a particular portion of the development.
C. Bicycle Circulation
A system of bicycle paths coordinated with the City's Master Plan of
Bicycle Trails and meeting the approval of the Planning Director and the
Director of Parks, Beaches and Recreation shall be developed and
maintained within the planned community.
d. Erosion Control
Landscaping plans shall incorporate provisions for Erosion Control on all
graded sites which will remain vacant for a considerable period of time
prior to commencement of building construction.
e. Traffic Considerations
i. Both MacArthur Boulevard and Jamboree Road shall be widened
to provide for 6 through lanes, double left turn lanes at all
intersections, and free right turning lanes at all intersections.
ii. Von Karman shall be widened at the intersection with MacArthur
Boulevard to provide 6 lanes.
iii. All streets on the site except for Von Karman shall be flared to
provide at least 5 lanes at intersections with peripheral streets.
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City Council Ordinance No. 2013 -5
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iv. Birch Street shall be flared to 5 lanes at the intersection with Von
Karman.
V. Campus Drive shall be widened to provide dual left turn lanes at
Von Karman.
vi. Von Karman shall be improved for its full length from MacArthur
Boulevard to Campus Drive in conjunction with initial
development of areas which do not take primary access from
Campus Drive or Jamboree Road.
vii. Access rights to MacArthur Boulevard shall be dedicated to the
City except for the Birch Street and Von Karman Avenue
intersections. Consideration may be given to providing additional
access points at a later date if more detailed traffic studies
demonstrate the desirability of such additional access points.
Consideration shall be limited to right turn egress and right and left
turn ingress. (11)
viii. Traffic signals shall be constructed at the intersections of
MacArthur Boulevard with Birch Street and with Von Kannan
Avenue when the latter two streets are opened. The developer shall
be responsible for 50% of the cost of the signal at Von Karman and
50% of the cost of the signal at Birch Street.
ix. A traffic signal shall be constructed at the intersection of Campus
Drive and Jamboree Road in conjunction with the initial stages of
development. The developer shall be responsible for 25% of the
cost of the signal.
X. A traffic signal shall be installed at the intersection of Von Karman
and Birch Street, with the developer to be responsible for 100% of
the cost. Construction shall be scheduled so that the signal will be
completed not later than June 30, 1977. (8)
xi. A traffic signal shall be installed at the intersection of Von Karman
and Campus Drive, with the developer to be responsible for 50% of
the cost. Construction shall be scheduled so that the signal will be
completed not later than December 30, 1976. (8)
A traffic signal shall be installed at the intersection of Jamboree
Boulevard and Birch Street, with the developer to be responsible
for 50% of the cost. Construction shall be scheduled so that the
signal will be completed not later than June 30, 1977. (8)
in order to accomplish the schedule for construction of these two
signals, a cooperative agreement may be entered into between the
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City Council Ordinance No. 2013 -5
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developer and the City. The agreement shall provide for the
developer to advance the nondeveloper share of the funding, if
necessary; with provisions for reimbursement by the City. The
agreement may also provide for a credit to the developer for funds
advanced for the City's share of construction costs for signals
constructed elsewhere in the project. (8)
xii. Provision for other traffic signals shall be investigated in
conjunction with the process of development at a later date.
xiii. Phasing of Development. 1,651,757 sq. ft. of development was
existing or under construction as of October 1, 1978. The
additional allowable development in the total approved
development plan is 1,058,863 sq.ft. Any further development
subsequent to October 1, 1978, in excess of 30% of the additional
allowable development, being 317,658 sq. ft., shall be approved
only after it can be demonstrated that adequate traffic facilities will
be available to handle that traffic generated by the project at the
time of occupancy of the buildings involved. Such demonstration
may be made by the presentation of a phasing plan consistent with
the Circulation Element of the Newport Beach General Plan. (12)
f Airport (2)
The following disclosure statement of the City of Newport Beach's policy
regarding the Orange County Airport shall be included in all leases or
subleases for space in the Planned Community Development and shall be
included in the Covenants, Conditions and Restrictions recorded against
the property.
Disclosure Statement (2)
The Lessee herein, his heirs, successors and assigns acknowledge that:
i. The Orange County Airport may not be able to provide adequate
air service for business establishments which rely on such service;
ii. When an alternate air facility is available, a complete phase out of
jet service may occur at the Orange County Airport;
iii. The City of Newport Beach may continue to oppose additional
commercial air service expansion at the Orange County Airport;
iv. Lessee, his heirs, successors and assigns will not actively oppose
any action taken by the City of Newport Beach to phase out or limit
jet air service at the Orange County Airport.
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City Council Ordinance No. 2013 -5
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GENERAL NOTES
Water within the planned community area will be furnished by the Irvine Ranch Water District.
Prior to or coincidental with the filing of any tentative map or use permit, the developer shall submit a
master plan of drainage to the Director of Public Works.
The height of all buildings and structures shall comply with Federal Aviation Authority criteria.
Except as otherwise stated in this ordinance, the requirements of the zoning code, City of Newport Beach,
shall apply.
The contents of this supplemental text notwithstanding, no construction shall be proposed within the
boundaries of this planned community district except that which shall comply with all provisions of the
Building Code and the various mechanical and electrical codes related thereto.
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City Council Ordinance No. 2013 -5
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DEFINITIONS
Advertising Surface:
The total area of the face of the structure, excluding supports.
Area of Elevation:
Total height and length of a building as projected to a vertical plane.
Building Line:
An imaginary line parallel to the street right -of -way line specifying the closest point from this street right -
of -way that a building structure may be located (except for overhangs, stairs and sunscreens).
Right -of -Wad
When reference is made to right -of -way line it shall mean the line which is then established on either the
adopted Master Plan of Streets and Highways or the filed Tract Map for Minor Roads as the ultimate
right -of -way line for roads or streets.
Side and Front of Comer Lots:
For the purpose of this ordinance, the narrowest frontage of a lot facing the street is the front, and the
longest frontage facing the intersecting street is the side, irrespective of the direction in which the
structures face.
Sign:
Any structure, device or contrivance, electric or non - electric and all parts thereof which are erected or
used for advertising purposes upon or within which any poster, bill, bulletin, printing, lettering, painting,
device or other advertising of any kind whatsoever is used, placed, posted, tacked, nailed, pasted or
otherwise fastened or affixed.
Commerce:
All those permitted uses as specified in Section H, Group I through VII, inclusive, in this text.
Commercial Land:
The site area upon which any or all commercial permitted uses would exist.
Site Area: (3)
The total land area of the land described in the use or other permit, including footprint lots.
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City Council Ordinance No. 2013 -5
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Special Landscaped Street:
Special landscaped streets are designated as MacArthur Boulevard, Jamboree Boulevard and Campus
Drive. The landscaping requirements for special landscaped streets and for the remaining streets are
described in the following text.
Streets - Dedicated and Private:
Reference to all streets or rights -of -way within this ordinance shall mean dedicated vehicular rights -of-
way. In the case of private or non - dedicated streets, a minimum setback from the right -of -way line of said
streets of ten (10) feet shall be required for all structures. Except for sidewalks or access drives, this area
shall be landscaped according to the setback area standards from dedicated streets contained herein.
Driveway:
Vehicular access ways onto or within private property exclusive of streets, dedicated or private. A
minimum separation of five (5) feet shall be maintained between all driveways and buildings.
Footprint Lot: (3)
The area of land required for the building pad, encompassing the peripheral area of the building.
Appurtenant and contiguous to the footprint lot shall be all parking, landscape, setbacks and other areas as
described and required by this text.
Landscape Area: (4)
The landscape area shall include walks, plazas, water and all other areas not devoted to building footprints
or vehicular parking and drive surfaces. In calculating area of required landscaping any off -site
landscaping such as landscaped medians or parkways in street rights -of -way shall not be included.
ME
City Council Ordinance No. 2013 -5
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PART I. INDUSTRIAL— Deleted. (33)
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City Council Ordinance No. 2013 -5
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City Council Ordinance No. 2013 -5
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City Council Ordinance No. 2013 -5
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City Council Ordinance No. 2013 -5
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PART 11 COMMERCIAL
Section I. Site Area and Building Area
Group I PROFESSIONAL & BUSINESS OFFICES
Acreages shown are net buildable land area including landscape setbacks with property
lines. (4)
0
Site A
Site B
Site C
Site D
Site E
Site F
Site G
Site A
Site B
Site C
Site D
Site E
Site F
Site G
C.
Building Sites (4)
Total Acreage
30.939 acres * (29)
43.703 acres (11)
18.806 acres (10)
19.673 acres
2.371 acres
1.765 acres
5.317 acres (8)
122.574 acres (8)(10)(11)
Allowable Building Area
Office Acreage
30.939 acres *(29)
43.703 acres (11)
18.806 acres (10)
19.673 acres
2.371 acres
1.765 acres
5.317 acres (8)
122.574 acres(8)(10)(11)
366,147 square feet (16)(26)(29)(30)
977,720 square feet (13)(16)(28)(30)(32)
674,800 square feet (10)(15)
240,149 square feet (8)(13)
32,500 square feet (4)
42,646 square feet (4)(3 1)
45,000 square feet (8)
2,378,962 square fee t_(15)( *)(31)
Statistical Anal (4)
The following statistics are for information only.
Development may include but shall not be limited to the following:
Story heights shown are average heights for possible development. The buildings
within each parcel may vary.
Assumed Parking Criteria:
a. One (1) space per 225 square feet of net building area @ 120 cars per acre
for Sites C, D, E, F and G.
City Council Ordinance No. 2013 -5
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*(3)(4) In addition to 19.399 acres of office use, there is 9.54 acres for hotel and motel and 2.0
acres of lake within Office Site A. Therefore, there are 30.939 acres net within Office
Site A. (3)(4)(16)
b. One (1) space per 300 square feet of net building area @
120 cars per acre for Sites A, B and C. (11)
1. Site A
Allowable Building Area .......
366,147 square feet (16)(26)(29)(30)
Site Area
...... 19.399 acres *(3)(4)(16)
a. Building Height
Land Coverage (16)(29)(30)
Two story development
............... 4.20 acres
Three story development
............... 2.80 acres
Four story development
............... 2.10 acres
Five story development
............... 1.68 acres
Six story development
............... 1.40 acres
Seven story development
............... 1.20 acres
Eight story development
............... 1.05 acres
Nine story development
............... 0.93 acres
Ten story development
............... 0.84 acres
Eleven story development
............... 0.76 acres
Twelve story development
............... 0.70 acres
b. Parking
Land Coverage
1,221 cars
.............. 10.18 acres (11, 16,29,30)
C. Landscaped Open Space (4, 11,16) Land Coverage (29,30)
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
2. Site B
............... 5.02 acres
............... 6.42 acres
............... 7.12 acres
............... 7.54 acres
............... 7.80 acres
............... 8.02 acres
............... 8.17 acres
............... 8.29 acres
............... 8.38 acres
............... 8.46 acres
............... 8.52 acres
Allowable Building Area ......... 977,720 square feet (13,16,28,30)
Site Area ......... 43.703 acres (4) (11)
27
a. Building Height
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
b. Parking
3,259 cars
C. Landscaped Open Space (11)
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
3. Site C (10)
Allowable Building Area
Site Area ......... 18.806 acres (4)
a. Building Height
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
City Council Ordinance No. 2013 -5
Page 25 of 62
Land Coverage (16,28,30,32))
......... 11.22 acres
......... 7.48 acres
......... 5.61 acres
......... 4.49 acres
......... 3.74 acres
3.21 acres
......... 2.81 acres
......... 2.49 acres
......... 2.24 acres
......... 2.04 acres
......... 1.87 acres
Land Coverage (11, 13,16,28,30,32))
............... 27.16 acres
Land Coverage (11,13,16,28,30,32))
............... 5.32 acres
............... 9.06 acres
............... 10.93 acres
............... 12.05 acres
............... 12.80 acres
............... 13.33 acres
............... 13.73 acres
............... 14.05 acres
............... 14.30 acres
............... 14.50 acres
............... 14.67 acres
......... 674,800 square feet (15) (17)*
Land Coverage (15)
......... 7.75 acres
......... 5.16 acres
......... 3.87 acres
......... 3.10 acres
......... 2.58 acres
......... 2.21 acres
......... 1.94 acres
......... 1.72 acres
......... 1.55 acres
...... 1.41 acres
...... 1.29 acres
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City Council Ordinance No. 2013 -5
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b. Parking Land Coverage (15)
2,249 cars ............... 18.74 acres
* The square footage includes a maximum of 3,250 square feet for up to two (2) restaurants,
bars, or theater /nightclubs. Any portion or all of the floor area not utilized for the purpose
shall revert to professional and business office use. (17)
C. Landscaped Open Space
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
4. Site D
Allowable Building Area
Site Area
a. Building Height
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
b. Parking
1,067 cars
Land Coverage (4)(15)
............... -7.68 acres
............... -5.09 acres
............... -3.80 acres
............... -3.03 acres
............... -2.51 acres
............... -2.14 acres
............... -1.87 acres
............... -1.65 acres
............... -1.48 acres
............... -1.34 acres
............... -1.24 acres
......... 240,149 square feet (8)(13)
......... 19.673 acres (4)
Land Coverage(8) (13)
......... 2.75 acres
......... 1.84 acres
......... 1.38 acres
......... 1.10 acres
......... 0.92 acres
......... 0.79 acres
......... 0.69 acres
......... 0.61 acres
......... 0.55 acres
......... 0.50 acres
......... 0.46 acres
Land Coverage (8) (13)
......... 8.89 acres
29
C.
5. Site E
Landscaped Open Space
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
Allowable Building Area
Site Area
IM
C.
Building Height
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
Parking
144 cars
City Council Ordinance No. 2013 -5
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Land Coverage (4) (8) (13)
............... 8.03 acres
............... 8.94 acres
............... 9.40 acres
............... 9.68 acres
............... 9.86 acres
............... 9.99 acres
............... 10.09 acres
............... 10.17 acres
............... 10.23 acres
............... 10.28 acres
............... 10.32 acres
......... 32,500 square feet (4)
......... 2.371 acres (4)
Landscaped Open Space (4)
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
Land Coverage (4)
......... 0.37 acres
......... 0.25 acres
......... 0.19 acres
......... 0.15 acres
......... 0.12 acres
......... 0.11 acres
......... 0.10 acres
......... 0.09 acres
......... 0.08 acres
......... 0.07 acres
......... 0.06 acres
Land Coverage (4)
......... 1.20 acres
Land Coverage
............... 0.80 acres
............... 0.92 acres
............... 0.98 acres
............... 1.02 acres
...... I........ 1.05 acres
............... 1.06 acres
............... 1.07 acres
............... 1.08 acres
............... 1.09 acres
............... 1.10 acres
......... I..... 1.11 acres
so
6. Site F (4)(3 1)
Allowable Building Area
Site Area
la
C.
Building Height
One story development
Two story development
Three story development
Four story development
Five story development
Six story development
Parking
190 cars
Landscaped Open Space
One story development
Two story development
Three story development
Four story development
Five story development
Six story development
7. Site G (8)
Allowable Building Area
Site Area
II
10
C.
Building Height
Building Height
One story development
Two story development
Three story development
Four story development
Parking
200 cars
Landscaped Onen Snace
One story development
Two story development
Three story development
Four story development
City Council Ordinance No. 2013 -5
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......... 42,646 square feet
... 1.765 acres
Land Coverage
............... 0.98 acres
............... 0.49 acres
............... 0.33 acres
............... 0.24 acres
...........0.20 acres
............0.16 acres
Land Coverage
......... 1.58 acres
Land Coveraee
......... <0.80> acres
......... <0.31> acres
......... <0.15> acres
......... <0.06> acres
......, <0.02> acres
..... <0.03> acres
......... 45,000 square feet
......... 5.317 acres
Land Coveraee
......... 1.03 acres
......... 0.52 acres
......... 0.34 acres
......... 0.26 acres
Land Coverage
......... 1.67 acres
Land Coverage
2.62 acres
3.13 acres
3.31 acres
3.39 acres
3I
City Council Ordinance No. 2013 -5
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Maximum building height shall not exceed twelve (12) stories above ground level, and shall in no
way exceed the height limits set by the Federal Aviation Authority for Orange County Airport.
Conclusions
The preceding figures indicate that within a fixed maximum density as the height of the building
increases the resulting open landscaped area also increases.
Group U. HOTEL & MOTEL (1)
Group III.
0
Building Sites
For the purposes of this statistical analysis, 9.54 acres have been
allotted for hotel and motel development. This acreage is for statistical purposes
only. It is necessary to allot a specific acreage within this analysis to secure office
building densities within their specific parcels. Development may include but
shall not be limited to this acreage. The hotel and motel site size shall be
determined at the time a use permit is secured.
B. Building Height
Maximum building height shall not exceed height limits set by the
Federal Aviation Authority for Orange County Airport.
COURT HOUSE
A. Building Site
Site 1: 7.80 acres
Building Area
Site 1: 90,000 square feet
7.80 acres
90,000 square feet
The following statistics are for information only. Development may include but
shall not be limited to the following.
C. Parking
400 Cars
D. Landscaped Open Space
Two story development ................
Three story development..
Four story development ....
Five story development ....
Six story development ......
E. Building g eight
3.33 acres
Land Coverage
3.44 acres
........... 3.78 acres
........... 3.95 acres
........... 4.06 acres
........... 4.13 acres
32
City Council Ordinance No. 2013 -5
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Maximum building height shall not exceed height limits set by the
Federal Aviation Authority for Orange County Airport.
33
Group IV
Group V
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SERVICE STATIONS
A. Building Sites (4) (5) (11)
Site 3: 1.765 acres .... ............................... 1.765 acres
Service station site 3 shall be located within Office Site F and shall not exceed
1.765 acres in size. Any portion or all of Site 3 not utilized for service station use
shall revert to either professional and business office use or restaurant use. (4)
RESTAURANTS (1) (4)
A. Building Sites
Maximum acreages for Site 2 shall not exceed 1.25 (18) acres. Maximum acreage
for Site 3: 1.765 acres. Maximum acreages for Sites 4 and 5 shall not exceed 3.0
acres. Maximum acreage for Sites 6 and 7 shall not exceed 2.2 acres. (8)
(The following acreages are for information only.)
Site 1 Deleted see Group VII.
Site2 ....... ...............................
Site3 ....... ...............................
Site 4 Deleted .........................
Site 5 Deleted .........................
Site6 ....... ...............................
Site7 ....... ...............................
.............. (18)
........ 1.25 acres
........ 1.765 acres
.......................(30)
..................... (30)
........ 1.50 acres (8)
........ 0.70 acres (8)
5.215 acres ...
.5.215 acres 1301
Site 1 Deleted see Group VII Private Club (18)
Site 2 (4101 Jamboree — Taco Bell) located within Office Site `B" (4)(16)(30)
Site 3 located within Office Site "F". (4)
Site 4 (4300 Von Korman Avenue — Koto Restaurant) deleted and reverted
to Site B Professional and Business Office Allowable Building Area. (30)
Site 5 deleted from Office Site `B" and transferred to Office Site "A" as
Professional and Business Office Allowable Building Area (30)
Sites 6 and 7located within Office Site "G ". (8)
Any portion or all of the restaurant, bar, theater /nightclub acreage for Sites 2, 4, 5,
6 or 7 not utilized for that purpose shall revert to professional and business office
use. Any portion or all of the restaurant acreage for Site 3 not utilized for that
purpose shall revert to either professional and business office use or service station
use. (4) (8) (18)
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City Council Ordinance No. 2013 -5
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The following statistics are for information only. Development may include but shall not
be limited to the following.
B. Building Area (4)(8) (30)
C.
M
E.
Site 2 ................ 2,397sq. ft. ...... 0.06 acres (30)
Site 3 ................
10,000 sq. ft.
...... 0.22 acres
Site 4 ................
Deleted
Deleted
Site 5 ................
Deleted
Site 6 (8) ...
Site 6 (8) ..........
7,000 sq. ft.
...... 0.16 acres
Site 7 (8) ..........
3,000 sg. ft.
...... 0.07 acres
22.397 sa. ft.
...... 0.51 acres .....
Parking
.0.51 acres (8, 18, 30)
Criteria: 300 occupants /10,000 sq. ft.
1 space /3 occupants and 120 cars per acre.
Site 2 ..........
24 cars
Site 3 ..........
100 cars
Site 4 ..........
Deleted
Site 5 ..........
Deleted
Site 6 (8) ...
70 cars
Site 7 (8) ...
30 cars
224 cars
............. 0.20 acres (30)
............... 0.84 acres
............... 0.58 acres
............... 0.25 acres
............... 1.87 acres ....
Landscaped Open Space (4)(30)
Site 2 ..........
0.99 acres (30)
Site 3 ..........
0.70 acres
Site 4 ..........
Deleted
Site 5 ..........
Deleted
Site 6 (8)
.... 0.76 acres
Site 7 (8)
.... 0.38 acres
2.83 acres .......
Building Height
1.87 acres (8) (18)(30)
.... 2.83 acres (8) (18)(30)
Building height of structures shall be limited to a height of thirty -five (35) feet.
35
Group VI. RETAH. & SERVICE CENTER
A. Building Site (4) (5)
Site 1 .......... 5.026 acres
Site 2 Deleted (30)
5.026 acres
City Council Ordinance No. 2013 -5
5.026 acres (30)
Page 33 of 62
Site 2 shall be located within Office Site `B." Any portion or all of the retail and service
Site 2 acreage not utilized for that purpose shall revert to professional and business office
use. (4) (16)
Site 2 deleted from Office Site `B" and transferred to Office Site "A" as Professional and
Business Office Allowable Building Area. (30)
B. Allowable Building Area (5)
* Retail Site No. 1 .......... 120,000 sq. ft. (14)(27)
Retail Site No. 2 Deleted (30)
* Retail Site No. 1 (sq. Ft.)
Parcel
Existing
Total
Parcel 1, R/S 588 (H) (H) 70,630
Parcel 3, R/S 506 (R) (R) 0
(0) (0) 22,000
Parcel 4, R/S 506 (R) 4,115 (R) 21,896
(0) 0 (0) 5,474
Subtotal (R) 12,315 (R) 21,896
(0) 0 (0) 27,474
(H) 70,630
Total 120.000 (14)(27)
(R) = Retail
C. Landscape Area (5)
(0) = Office (H) = Hotel
Twenty -five (25) percent of the 5.026 acres constituting retail and service center
Site No. 1 shall be developed as landscape area.
If twenty -five (25) percent of the 5.026 acres constituting retail and service center
Site No. 1 is not developed as landscape area, a specific site plan shall be
submitted to the City of Newport Beach Planning Commission for approval prior
to the issuing of a building permit.
so
Q
E.
City Council Ordinance No. 2013 -5
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Statistical Anal (5)
The following statistics are for information only. Development may include but
shall not be limited to the following.
Assumed parking criteria: One (1) space per 200 square feet of net building area at
120 cars per acre.
1. Site 1
Allowable Building Area ..... ............................... 120,000 sq. ft. (14)(27)
SiteArea .............................................. ............................... 5.026 acres
a. Building Height (14)
Two story development ........... ............................... 1.17 acres
Three story development ......... ............................... 0.78 acres
Four story development ........... ............................... 0.59 acres
Five story development ............ ............................... 0.47 acres
b. Parkin (14)
460 cars .................................... ............................... 3.83 acres
C. Landscaped Open Space (14)
Two story development ........... ...............................
0.03 acres
Three story development ......... ...............................
0.87 acres
Four story development .......... ...............................
0.61 acres
Five story development ........... ...............................
0.73 acres
2. Site 2 Deleted (30)
Building Height
Building height of structures shall be limited to a height of thirty-five (35) feet
above mean existing grade as shown on Exhibit `B." (5) Building height of
structures for Service Site I shall be limited to a height of sixty feet (27)
37
Group VII.
Section H.
Group I.
PRIVATE CLUB (18)
A. Building Site
Site 1 .......................... 2.0 acres
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2.0 acres
Site I shall be located within Office Site "A." Any portion or all of the private club
acreage not utilized for that purpose shall revert to professional and business office use.
1. Site 1
Allowable Building Area
B. Building g
.. .........................45,000 square feet (26)
Building height of structures shall be limited to a height of fifty (50) feet.
Permitted Uses
PROFESSIONAL AND BUSINESS OFFICES
To allow the location of commercial activities engaged in the sale of products or services
relating to and supporting the Development Plan, provided that such activities are confined
within a building or buildings.
A. Professional Offices similar in nature to but not limited to the following: (6)
1. Accountants
2. Attorneys
3. Doctors, dentists, optometrists, oculists, chiropractors and others
licensed by the State of California to practice the healing arts.
4. Engineers, architects, surveyors and planners.
B. Business Offices similar in nature to but not limited to the following: (6)
1. Advertising agencies
2. Banks
3. Economic consultants
4. Employment agencies
5. Escrow offices
6. Insurance agencies
7. Laboratories
a. Dental
b. Medical
c. X -Ray
d. Bio- chemical
e. Film, wholesale only
ON
City Council Ordinance No. 2013 -5
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f Optometrical
8. Stockbrokers
9. Studios for interior decorators, photographers, artists and draftsmen.
10. Telephone answering services
11. Tourist information and travel agencies
C. Hotel and Motel (1)
To allow for the location within Office Site "A" of a hotel or motel development,
subject to a use permit.
D. Restaurants, bars and theater /nightclubs subject to the procedures,
regulations and guidelines set forth in Title 20 of the Newport Beach
Municipal Code, in each case. (1) (3) (4) (7) (25)
1. Deleted (18)
* 2. To allow within the 43.703 acres of Office Site `B" three (3)
restaurant, bar or theater /nightclub sites. (16)
3. To allow within the 18.806 acres of Office Site "C" up to two (2) restaurant,
bar or theater /nightclub sites with a total area not to exceed 3,250 square feet.
Specific location of these restaurants, bars or theater /nightclubs to be
determined at a later date. The permitted professional and business offices'
allowable building area for the site will be reduced accordingly. (17)
4. To allow within the 1.765 acres of Office Site "F" two (2) restaurant, bar or
theater /nightclub sites. Specific location of these sites to be determined at a
later date. All other acreage shall be adjusted and shall not increase or
decrease the professional and business offices allowable building area for the
site.
5. To allow within the 5.317 acres of Office Site "G" three (3) restaurant, bar or
theater /nightclub sites. Specific location of these sites to be determined at a
later date. All other acreage shall not increase or decrease the professional and
business offices' allowable building area for the site. (8) (25)
* E. Private Club (4) (18) (26)
To allow within Office Site "A" one (1) private club site at 4110 MacArthur
Boulevard.
F. Service Station (4)
To allow within Office Site "F" one (1) service station site. Specific location to be
determined at a later date. All other acreages shall be adjusted and shall not
:39
City Council Ordinance No. 2013 -5
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increase or decrease the professional and business office allowable building area
for the site.
* (4) If restaurant, bar or theater /nightclub, or private club uses are developed, the allowable
building area for Office Site `B" shall be restricted by one of the following conditions:
1. The 963,849 square feet of allowable building area shall not increase or decrease so long
as twenty -five (25) percent of the 41.969 acres constituting Office Site `B" is developed
as landscaped area. (16)
2. If twenty-five (25) percent of the 42.709 acres constituting Office Site `B" is not
developed as landscape area, the 963,849 square feet of allowable building area shall be
reduced by the gross building area of the restaurants, bars or theater /nightclubs and/or
private club. The allowable building area shall be further reduced by the number of
additional parking spaces required to support a restaurant, bar or theater /nightclub, or a
private club beyond what would be required for an equivalent area of office use. The
reduction shall be 225 square feet per additional space. (16)
G. Support Commercial (20)
The uses permitted under this section are of a convenience nature ancillary to the
operation and use of office facilities. These uses shall be in addition to those sites
permitted under Part H. Section II. Group V (Restaurants). These uses shall not
increase the allowable building area for Professional and Business Office.
Retail sales and services including tobacco stores, card shops,
confectionery and newspaper stands, and other uses which, in the opinion
of the Planning Director, are of a similar nature. Retail uses shall be
located in the basement or on the first floor of a building. Storage for such
uses shall be within a building.
2. Restaurants, including outdoor restaurants and take -out restaurants, bars or
theater /nightclubs shall be permitted subject to the procedures, regulations
and guidelines set forth in Title 20 of the Newport Beach Municipal Code,
in each case. (25)
Group 11. HOTEL & MOTEL (1)
Subject to a use permit.
Group HL COURT HOUSE
State, County and/or City Facilities.
Group IV. SERVICE STATIONS & MECHANICAL CAR WASH (4)
A. Service stations subject to the City of Newport Beach service station standards.
UN
City Council Ordinance No. 2013 -5
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B. Mechanical car wash, subject to a use permit. Mechanical car wash shall only be
allowed in conjunction with or in lieu of a permitted service station use.
Group V. RESTAURANTS (7)
A. Restaurants, including outdoor, drive -in or take -out restaurants, bars and
theater /nightclubs, shall be subject to the procedures, regulations and guidelines set
forth in Title 20 of the Newport Beach Municipal Code, in each case. Facilities
other than indoor dining establishments or those that qualify as outdoor, drive -in or
take -out establishments shall be subject to the City of Newport Beach regulations
covering drive -in and outdoor establishments. (25)
Group VI. RETAIL & SERVICE CENTER (1)
A. Permitted Uses
1. Restaurants, including outdoor, drive -in or take -out restaurants, bars and
theater /nightclubs, shall be permitted subject to the procedures, regulations
and guidelines set forth in Title 20 of the Newport Beach Municipal Code,
in each case, except as noted under "a" and "b" below. (7) (25)
a. Restaurants, other than outdoor, drive -in or take -out restaurants,
shall be permitted subject to the procedures, regulations and
guidelines set forth in Title 20 of the Newport Beach Municipal
Code, in each case. (25)
b. Outdoor, drive -in or take -out restaurants shall be subject to the
procedures, regulations and guidelines set forth in Title 20 of the
Newport Beach Municipal Code, in each case. (25)
2. Barber shop and beauty parlor
3. Book and stationery store
4. Blueprinting and photostatics
5. Camera Shop
6. Delicatessen store
7. Florist
8. Shoe store or repair shop
9. Tailor
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City Council Ordinance No. 2013 -5
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10. Tobacco store
11. Office equipment rentable and repair
12. Pharmacies
13. Tourist information, travel agencies, and ticket reservation services, but not
to include any airline terminal services or facilities for the transport of
passengers, baggage, or freight. (1)
14. Athletic club or health clubs (5)
* 15. Professional and Business Offices (5)
16. Other uses similar to the above listed
17. Hotel subject to approval of a Use Permit (27)
Group VII. LODGE HALLS, PRIVATE CLUBS, ATHLETIC CLUBS, UNION HEADUARTERS
(1) (4) (18)
Subject to use permit.
Group VIIL AUTO DETAILING (19)
A. All drainage shall be into the sanitary sewer system.
B. That all car wash and auto detailing operations shall be conducted within a covered
area.
C. This service shall be designed to serve building tenants and their patrons and
guests, and shall be ancillary to the primary use.
Section III. General Development Standards for Commercial Land
A. Site Area
Minimum site area shall not be less than thirty thousand (30,000) square feet.
Footprint lots shall have all required appurtenant areas contiguous thereto and the
sum of these areas shall not be less than thirty thousand (30,000) square feet. (3)
* To allow, in addition to the 2,320,600 square feet of professional and business office use
permitted elsewhere in the text, a maximum of 38,022 net square feet of professional and
business office use within Retail and Service Center Site 1. (5) (14)
Exception: (9)
The Planning Commission may authorize an exception to the
minimum site area. Application for any such exception shall be made at the time
Fiji"
City Council Ordinance No. 2013 -5
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of the filing of a tentative map by the applicant. In order for an exception to be
granted, the Planning Commission shall find the following facts with respect
thereto:
1. That the granting of the exception will not be detrimental to
the public welfare or injurious to other property in the vicinity.
2. That the Development Considerations and intent of this
planned Community Development Standards are substantially met.
B. Building Area
Maximum building area for professional and business offices shall
be as noted in Site Area and Building Area, Part II, Section I, Group LB. Parking
basements or parking structures shall not be calculated as building area; however,
said structures shall be used only for the parking of company vehicles, employee
vehicles, or vehicles belonging to persons visiting the subject firm. (4)
C. Setbacks
All setbacks shall be measured from the property line. For the
purpose of this ordinance, a street side property line is that line created by the
ultimate right -of -way of the frontage street.
1. Front Yard Setback (10)
Thirty (30) feet minimum; except that unsupported
roofs or sunscreens may project six (6) feet into the setback area. The
setback for Site C from MacArthur Boulevard would be at least thirty -six
(36) feet except that unsupported roofs or sun - screens any project six (6)
feet into the setback.
2. Side Yard
Side yard setbacks will be required only when any
one of the following conditions exist:
a. Comer Lot: Thirty (30) feet (street
side setback only), except that unsupported roofs and sunscreens
may project three (3) feet into setback area.
b. Where property abuts other than
commercially zoned property, a ten (10) foot setback is required.
Unsupported roofs and sunscreens may project three (3) feet into
the setback area.
3. Rear Yard
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City Council Ordinance No. 2013 -5
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None required except on a through -lot in which
case the required front yard setback shall be observed.
4. Footprint Lots (6)
Except as required by the Uniform Building Code,
there shall be no additional setback requirements for buildings within
footprint lots. Provided, however, that buildings within footprint lots shall
be so located as to observe the setbacks from streets and existing lot lines
required under Part II, Section III, C.1, 2 and 3.
D. Loading Areas
I. Street side loading on other than special landscaped
streets shall be allowed providing the loading dock is set back a minimum
of seventy (70) feet from the street right -of -way line, or one hundred ten
(I 10) feet from the street center line, whichever is greater. Said loading
area must be screened from view from adjacent streets.
E. Stora eg Areas
1. All outdoor storage shall be visually screened from
access streets, freeways and adjacent property. Said screening shall form a
complete opaque screen up to a point eight (8) feet in vertical height, but
need not be opaque above that point.
2. Outdoor storage shall be meant to include all
company owned and operated motor vehicles, with the exception of
passenger vehicles.
3. No storage shall be permitted between a frontage
street and the building line.
F. Refuse Collection Areas
1. All outdoor refuse collection areas shall be visually
screened from access streets, freeways and adjacent property. Said
screening shall form a complete opaque screen.
2. No refuse collection area shall be permitted
between a frontage street and the building line.
G. Telephone and Electrical Service
All "on- site" electrical lines (excluding lines in excess of 12KV)
and telephone lines shall be placed underground. Transformer or terminal
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equipment shall be visually screened from view from streets and adjacent
properties.
H. Pedestrian Access (1)
It is required of all developments in the commercial areas to submit
a plan of pedestrian access to the Planning Department prior to the issuance of
building permits. Said plan will detail consideration for pedestrian access to the
subject property and to adjacent properties and shall be binding on subsequent
development of the property. The plan shall show all interior walkways and all
walkways in the public right -of -way, if such walkways are proposed or necessary.
I. Parkins
All parking shall be as specified in the General Parking
Requirements, Part III.
J. Signs
All signing shall be as specified in the General Sign Requirements,
Part W.
K. Landscape
All landscaping shall be as specified in the General Landscape
Requirements, Part V.
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PART III. GENERAL PARKING REQUIREMENTS
Section I A. Adequate off -street parking shall be provided to accommodate all parking needs
for the site. The intent is to eliminate the need for any on -street parking.
Required off - street parking shall be provided on the site of the use served, or on a
contiguous site, or within three hundred (300) feet of the subject site. Where
parking is provided on other than the site concerned, a recorded document shall be
approved by the City Attorney and filed with the Building and Planning
Departments and signed by the owners of the alternate site stipulating to the
permanent reservation of use of the site for said parking.
B. Parking requirements for specific sites shall be based upon the following parking
criteria. All parking shall be determined based upon building type and the area
within allotted to the following functions:
1. Business & Professional Offices
One (1) space for each 225 square feet of net floor area. The parking
requirement may be lowered to one (1) space for each 250 square feet of
net floor area upon review and approval of the modification committee.
Company parking stalls shall not exceed twenty -five (25) percent of the
total number of required parking spaces. The number and design of
compact parking stalls shall be reviewed and approved by the Planning
Director. (11)
Exception: (11)
Parking Requirement for Business and Professional Office Buildings based
on Parking Pool. The parking requirements for office buildings within a
contiguous office site may be modified in accordance with the following
schedule when the net building area or areas served exceeds 100,000
square feet.
a. For the first 125,000 square feet, parking shall be provided at one
space per 250 square feet of net floor area.
b. For the next 300,000 square feet, parking shall be provided at one
space per 300 square feet of net floor area.
C. Any additional floor area, parking shall be provided at one space per
350 square feet of net floor area.
d. For pools based on more than 425,000 square feet of net floor area,
the Planning Commission may modify the parking formula by use
permit, based on a demonstrated formula.
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2. Medical & Dental Offices
Five (5) spaces for each doctor or one (1) space for each 200 square feet of
gross floor area, whichever is greater.
4. " e Deleted. (33)
5. Lodge Halls, Private Clubs, Athletic Clubs, Union Headquarters (1) (4) (5)
a. One (1) space for each 75 square feet of gross floor area plus one (1)
space for each 250 square feet of gross office floor area.
b. Specific parking requirements shall be developed for private clubs or
athletic clubs based upon functions and occupancies within this use.
Parking shall be in conformance to existing City of Newport Beach
requirements for said occupancies or at a demonstrated formula
agreeable to the Planning Director. (4) In the event that private
clubs or athletic clubs are converted to another use, parking
requirements for the new use shall be subject to review by the
Planning Director. (5)
6. Restaurants, Bars or Theater/Nightclubs, Outdoor, Drive -hi and Take -Out
Restaurants (7)
a. Restaurant, bar or theater /nightclub parking shall be in accordance
with Title 20 of the Newport Beach Municipal Code, except as noted
under "b" and "c" below.
47
IN I
....
...
5. Lodge Halls, Private Clubs, Athletic Clubs, Union Headquarters (1) (4) (5)
a. One (1) space for each 75 square feet of gross floor area plus one (1)
space for each 250 square feet of gross office floor area.
b. Specific parking requirements shall be developed for private clubs or
athletic clubs based upon functions and occupancies within this use.
Parking shall be in conformance to existing City of Newport Beach
requirements for said occupancies or at a demonstrated formula
agreeable to the Planning Director. (4) In the event that private
clubs or athletic clubs are converted to another use, parking
requirements for the new use shall be subject to review by the
Planning Director. (5)
6. Restaurants, Bars or Theater/Nightclubs, Outdoor, Drive -hi and Take -Out
Restaurants (7)
a. Restaurant, bar or theater /nightclub parking shall be in accordance
with Title 20 of the Newport Beach Municipal Code, except as noted
under "b" and "c" below.
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* b. Restaurants, other than outdoor, drive -in or take -out restaurants,
within retail and service centers shall provide one (1) space for each
200 square feet of net floor area and one (1) loading space for each
10,000 square feet of gross floor area, to the extent that the net floor
area of all restaurants does not exceed twenty (20) percent of the net
floor area of the retail and service center. In the event that any
restaurant causes the total of all restaurant uses in the retail and
service center to exceed the twenty (20) percent limitation noted
above, that entire restaurant and any subsequent restaurants shall
provide parking as noted under "a" above.
C. Parking for outdoor, drive -in and take -out restaurants shall be
provided in accordance with Section 20.53.060 of the Newport
Beach Municipal Code.
7. Commercial Retail and Service Center (5)
One (1) space for each 200 square feet of net floor area. One (1) loading
space for each 10,000 square feet of gross floor area. Professional and
business office parking shall be provided per Part III, Section I.B.I.
Athletic or health club parking shall be provided per Part III, Section
I.B.5b.
8. Hotels and Motels
One (1) space for each guest unit plus employees' parking on a
demonstrated formula. Parking for restaurants, bars, banquet rooms, retail
shops or service stores shall be as specified in the above applicable section
or on a demonstrated formula acceptable to the Planning Director.
* Professional and business office net floor area shall be included in this provision. Athletic
and health club net floor area shall be excluded from this provision. (5)
9. Court House
Specific parking requirements shall be developed based upon functions and
occupancies within this zone. Parking shall be in conformance to existing
City of Newport Beach requirements for said occupancies, or at a
demonstrated formula agreeable to the Planning Director.
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PART IV. GENERAL SIGN REQUIREMENTS
Section I. Sian Standards
A. Signs visible from the exterior of any building may be lighted, but no signs
or any other contrivance shall be devised or constructed so as to rotate,
gyrate, blink or move in any animated fashion.
B. Signs shall be restricted to advertising only the person, firm, company or
corporation operating the use conducted on the site or the products sold
thereon.
C. A wall sign with the individual letters applied directly shall be measured by
a rectangle around the outside of the lettering and/or the pictorial symbol
and calculating the area enclosed by such line.
D. All signs attached to the building shall be surface mounted.
Group I. PERMANENT IDENTIFICATION SIGNS
A. Ground Sims
Ground signs shall not exceed four (4) feet above grade in vertical height.
Also, ground signs in excess of one hundred and fifty (150) square feet in
area (double face) shall not be erected in the first twenty (20) feet, as
measured from the property line, of any street side setback. Said sign shall
not exceed a maximum area of two hundred (200) square feet.
B. Wall Signs
In no event shall an identification sign placed on a wall comprise more
than ten (10) percent of the area of the elevation upon which the sign is
located. Said signs shall be fixture signs. Signs painted directly on the
surface of the wall shall not be permitted.
The following exceptions apply to industrial zoning only. In the
instance of a multiple tenancy building, each individual industry
may have a wall sign over the entrance to identify the tenant. Said
sign shall give only the name of the company and shall be limited
to six (6) inch high letters. Said signs must be oriented toward the
parking or pedestrian area for that building and shall not exceed a
maximum area of five (5) square feet.
2. Fascia mounted identification signs limited to two (2) facades for
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No sign shall exceed an area equal to one and one -half (1 1/2)
square feet of sign for each one (1) foot of lineal frontage of the
building or store. However, no sign shall exceed two hundred
(200) square feet in area per face.
3. The following exceptions apply to Professional and Business
Offices and Retail and Service Center uses only. In the instance of
a multiple tenancy building, each individual ground floor business
may have signing in addition to permitted Building Identification
signs. (6)
Each individual ground floor business shall be limited to one (1)
sign per frontage not to exceed two (2) signs per business. Said
signs shall not be located above the ground floor fascia. No sign
shall exceed an area equal to ten (10) percent of the business face
upon which it is located. However, no sign shall exceed thirty -five
(35) square feet in area. (6).
In no event shall there be more than three (3) permitted ground
floor wall signs per building for Professional and Business Offices.
(6)
C. Pole Signs
One (1) identification pole sign per site will be allowed for the following
commercial businesses only:
a. Restaurant
b. Cocktail lounge and/or bar
C. Hotel
If a pole sign is utilized, it shall be in lieu of other identification signs
allowed by ordinance. Pole signs shall be limited to a maximum height of
twenty (20) feet and a maximum area of fifty (50) square feet per face,
double faced.
Group 11. TEMPORARY IDENTIFICATION SIGNS
A. The following signs shall conform to all requirements for "Ground Signs,"
Section I, Group I, Item A with General Sign standards above unless
specifically limited below.
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1. Sale or Lease Sign
A sign, advertising the sale, lease or hire of the site shall be
permitted in addition to the other signs listed in this section. Said
sign shall not exceed a maximum area of forty (40) square feet.
2. Construction Sign
One (1) construction sign denoting the architects, engineers,
contractor, and other related subjects, shall be permitted upon the
commencement of construction. Said sign shall be permitted until
such time as a final inspection of the building(s) designates said
structure(s) fit for occupancy, or the tenant is occupying said
building(s), whichever occurs first. Said sign shall not exceed a
maximum area of forty (40) square feet.
3. Future Tenant Identification Sign
A sign listing the name of future tenant, responsible agent or
realtor, and identification of the industrial complex shall be
permitted. Said sign will be permitted until such time as a final
inspection of the building(s) designates said structure(s) fit for
occupancy or tenant is occupying said building(s), whichever
occurs first. Said sign shall not exceed a maximum area of forty
(40) square feet.
4. Directional Signs
Signs used to give directions to traffic or pedestrians or give
instructions as to special conditions shall not exceed a total of six
(6) square feet (double face) in area and shall be permitted in
addition to the other signs in this section.
5. Exceptions
Group II.A.1, 2 and 3: this information may be grouped on a single
sign when the aggregate surface area does exceed the summation of
the individual areas for each use. This area may be distributed on
all surfaces of the sign. This sign may not exceed four (4) feet
above grade.
Group III. SPECIAL PURPOSE SIGNS
A. The following permanent signs shall be permitted.
1. Permanent Directional Sign
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Signs used to give directions to traffic or pedestrians as to special
conditions shall not exceed a total of six (6) square feet in area per
face, double faced and shall be permitted in addition to other signs
permitted in these standards.
2. Community Directional and/or Identification Sign
Permanent directional and identification signs, not exceeding two
hundred fifty (250) square feet (per face), shall be permitted but
subject to use permit.
Section 11. Sign Area
A. Deleted. (33)4+d*4Fia4
B TRdt.strial c....pa— --A
usiness and Professional Offices (33)
The following shall apply to Permitted Uses, Part I, Section III.
No sign shall exceed an area equal to one and one -half (1 1/2) square feet
of sign for each one (1) foot of lineal frontage of the building. However,
no sign shall exceed two hundred (200) square feet in area per face.
C. Commercial
The following shall apply to Permitted Uses, Part 11, Section 11, Groups fl,
III, V and VI.
Building identification shall be limited to a single entity. Building
identification signs shall have an area not to exceed one and one -half (1
1/2) square feet of surface for each one (1) foot of lineal frontage of
building. However, no sign shall exceed two hundred (200) square feet per
face. Building identification signs shall be limited to two (2) facades.
D. Business and Professional Offices
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The following shall apply to Permitted Uses, Part H, Section 11, Group I.
Building identification shall be limited to a single entity. Building
identification signs shall have an area not to exceed one and one -half (1
1/2) square feet of surface for each one (1) foot of lineal frontage of
building. However, no sign shall exceed two hundred (200) square feet per
face. Building identification signs shall be limited to two (2) facades.
Section III. Maintenance
All signs indicated in this section shall be maintained in a neat and orderly fashion.
Periodic inspection shall be made as directed by the Planning Director, City of
Newport Beach or his designated agent.
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PART V. GENERAL. LANDSCAPE STANDARDS
Section 1. General Statement (1)
Detailed landscape and irrigation plans, prepared by a registered Architect or under
the direction of a Landscape Architect, shall be submitted to and approved by the
Planning Director and the Director of Parks, Beaches and Recreation prior to
issuance of a building permit and installed prior to issuance of Certificate of Use
and Occupancy. Landscape in the public right -of -way shall be installed per plans
and specifications approved by the Parks, Beaches and Recreation Director and in
accordance with Parks, Beaches and Recreation Standards.
All landscaping in this section shall be maintained in a neat and orderly fashion.
Periodic inspections will be made as directed by the Planning Director and reports
submitted with regard to the condition of maintenance. If suggestions of
improvement are made, and are in the realm of the Maintenance Standards, the
work shall be corrected within thirty (30) days of receipt of the report.
A. Maintenance
1. All planting areas to be kept free of weeds and debris.
2. Lawn and ground covers to be kept trimmed and/or mowed
regularly.
3. All plantings to be kept in a healthy and growing condition.
Fertilization, cultivation and tree pruning are to be carried out as
part of regular maintenance.
4. Irrigation systems are to be kept in working condition. Adjustment
and cleaning of system should be a part of regular maintenance.
5. Stakes, guys and ties on trees should be checked regularly for
correct function; ties to be adjusted to avoid creating abrasions or
girdling to the stems.
6. Damage to plantings created by vandalism, automobile or acts of
nature shall be corrected within thirty (30) days.
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B. Front Yard Setback Area
1. General Statement
Landscaping in these areas shall consist of an effective
combination of street trees, trees, ground cover and shrubbery. All
unpaved areas not utilized for parking shall be landscaped in a
similar manner. Full coverage of ground cover to be expected in a
minimum of three (3) months.
2. Special Landscaped Street
The entire area between the curb and the building setback line shall
be landscaped, except for any driveway in said area. Tree size to
be no less than 24 -inch box.
3. Other Streets
The entire area between the curb and a point ten (10) feet back in
the front property line shall be landscaped except for any driveway
in said area. Tree size to be no less than 24 inch box.
C. Side Yard and Rear Yard
1. General Statement
All unpaved areas not utilized for parking and storage, shall be
landscaped utilizing ground cover and/or shrub and tree materials.
2. Undeveloped Areas
Undeveloped areas proposed for future expansion shall be
maintained in a weed free condition, but need not be landscaped.
3. Screening
Areas used for parking shall be screened from view or have the
view interrupted by landscaping and/or fencing from access streets,
freeways and adjacent properties. Plant materials used for
screening purposes shall consist of lineal or grouped masses of
shrubs and/or trees of a sufficient size and height to meet this
requirement when initially installed.
4. Boundary Areas
Boundary landscaping is required on all interior property lines.
Said areas shall be placed along the entire length of these property
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lines or be of sufficient length to accommodate the number of
required trees. Trees, equal in number to one (1) tree per twenty -
five (25) lineal feet of each property line, shall be planted in the
above defined areas in addition to required ground cover and shrub
material. Minimum width of property line landscaping shall be
three (3) feet.
5. All landscaped areas shall be separated from adjacent vehicular
areas by a wall or curb, at least six (6) inches higher than the
adjacent vehicular area.
D. Parking Area
Trees, equal in number to one (1) per each five (5) parking stalls, shall be
provided in the parking area. Planting area around building shall not be
included in parking area. Planting of trees may be in groups and need not
necessarily be in regular spacing.
E. Sloped Banks
All sloped banks greater than 5 to 1, or six (6) feet in vertical height and
adjacent to public right -of -way shall be stabilized, planted and irrigated
with full coverage in accordance with plans submitted and approved by
Planning Director.
F. Loading Areas
1. Street side loading on other than special landscaped streets, shall be
allowed providing the loading dock is set back a minimum of
seventy (70) feet from the street right -of -way line or one hundred
ten (110) feet from the street center line, whichever is greater. Said
loading area must be screened from view from adjacent streets.
G. Storage Areas
All outdoor storage shall be visually screened from access streets,
freeways and adjacent property. Said screening shall form a
complete opaque screen up to a point eight (8) feet in vertical
height but need not be opaque above that point.
2. Outdoor storage shall be meant to include all company owned and
operated motor vehicles, with the exception of passenger vehicles.
3. No storage shall be permitted between a frontage street and the
building line.
H. Refuse Collection Areas
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1. All outdoor refuse collection areas shall be visually screened from
access streets, freeways and adjacent property. Said screening shall
form a complete opaque screen.
2. No refuse collection area shall be permitted between a frontage
street and the building line.
3. Minimum width for landscaping shall be three (3) feet around
refuse collection areas.
I. Telephone and Electrical Service
All "on- site" electrical lines (excluding lines in excess of 12 KV) and
telephone lines shall be placed underground. Transformer or terminal
equipment shall be visually screened from view from streets and adjacent
properties, or an approved method of display.
J. Pedestrian Access (1)
It is required of all developments in the commercial areas to submit a plan
of pedestrian access to the Community Development Department prior to
the issuance of building permits. Said plan will detail consideration for
pedestrian access to the subject property and to adjacent properties, and
shall be binding on subsequent development of the property. The plan
shall show all interior walkways and all walkways in the public right -of-
way, if such walkways are proposed or necessary.
K. Landscape Plant Vocabulary (1)
It is the intent of this standard to provide flexibility and diversity in plant
selection yet maintain a limited variety to give greater unity to the
development. At the direction of the Director of Community Development
and the Director of Parks, Beaches and Recreation, material lists and a
street tree master plan shall be developed to aid in this development.
All trees occurring in the ten (10) foot setback shall be no less than 24 inch
box. The parking lot trees shall be no less than fifteen (15) gallon size.
Shrubs to be planted in containers shall not be less than one (1) gallon size.
Ground covers will be planted from one (1) gallon containers or from root
cuttings.
Every effort should be made to avoid using plants with invasive and
shallow root systems with fruit that would stain paving or automobiles.
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L. Earth berms shall be rounded and natural in character, designed to obscure
automobiles and to add interest to the site. In cases where the ratio of
width and height of berm creates a bank greater than 3 to 1, shrubs or walls
can be used as shown in illustration (b) (c). Wheel stops shall be so placed
that damage to trees, irrigation units and shrubs is avoided.
M. Trees in parking lots should be limited in variety. Selection should be
repeated to give continuity. Regular spacing is not required and irregular
groupings may add interest. Care should be exercised to allow plants to
grow and maintain their ultimate size without restriction.
N. Storage areas are to be provided with an opaque screen up to a point of
eight (8) feet in vertical height. Combination of plantings can be used to
further soften hard materials and give continuity to planting.
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PART VI. FOOTNOTES
(1) Planned Community text revision incorporating Planning Commission revisions and
conditions of approval.
(2) Planned Community Text revision incorporating City Council conditions of approval as
adopted by the city of Newport Beach. (Amendment No. 313, adopted August 14, 1972).
(3) Planned Community Text revision July 6, 1973 incorporating the addition of footprint lots
and the addition of two (2) restaurant sites within Office Site "A ". (Amendment No. 381,
adopted August 2, 1973).
(4) Planned Community Text revision (Amendment No. 420, adopted February 7, 1974)
incorporating the following changes:
a. Revised Planned Community Text site acreage figures to conform to the recorded
tract map.
b. Revised Exhibit "A" (land use map) to conform to recorded tract map.
C. Changed the size of Office Site "E" and created one parcel of land comprised of
Restaurant Site No. 3, Service Station Site No. 3 and the residual of Office Site
"C ". This new site is designated as Office Site "F ".
d. Revised Retail and Service Site No. 2 from a specific location to a floating location
within Office Site "A ".
e. Added mechanical car wash subject to a use permit as a permitted use on the
service station sites.
f Added private clubs or athletic clubs as a permitted use on Office Site `B ".
g. Made provisions for three (3) additional restaurant sites, two sites within Office
Site `B: and one site within Office Site "F ".
(5) Planned Community Text revision (Amendment No. 430, adopted June 10, 1974)
incorporating the following changes:
a. Eliminated Service Station Site No. 2.
b. Added health or athletic club as a permitted use within the Retail and Service
Center sites.
C. Added Professional and Business Office as a permitted use within the Retail and
Service Center sites.
d. Added a minimum twenty -five (25) percent landscape requirements or site plan
approval by the Planning commission to the development requirements of retail
Site No. 1.
(6) Planned Community Text revision (Amendment No. 444, adopted May 15, 1975)
incorporating the following changes:
a. Clarified the setback requirements for buildings within footprint lots.
b. Clarified Professional and Business Office permitted uses.
C. Added signing provision for ground floor businesses in multi- tenant building.
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(7) Planned Community Text revision (Amendment No. 451, adopted September 8, 1975)
incorporating the following changes:
a. Added the requirement that all restaurants shall be subject to the securing of a use
permit with the exception of certain restaurant uses within Retail and Service
Centers.
(8) Planned Community Text revision (Amendment No. 466, adopted June 28, 1976)
incorporating the following changes:
a. Changed the size of Light Industrial Site No. 2.
b. Created Professional and Business Office Site "G ".
C. Made provisions for two (2) restaurant sites within Office Site "G ".
d. Reduced the allowable building area of Office Site "D ".
e. Amended the construction timetable for traffic signals.
(9) Planned community Text revision (Amendment No. 475, adopted January 10, 1977)
incorporating the following changes:
a. Established guidelines for an exception to the minimum site area.
(10) Planned Community Text revision (Amendment No. 505, adopted July 11, 1978)
incorporating the following changes:
a. Increased the site area of Professional and Business Office Site "C ".
b. Increased the allowable building area of Professional and Business Office Site
«C„
(11) Planned Community Text revision (Amendment No. 508, adopted August 28, 1978)
incorporating the following changes:
a. Made provision for consideration of additional left turn ingress from MacArthur
Boulevard.
b. Eliminated Service Station Site No. 1 and added the land area to Professional and
Business Office Site "B ".
C. Reviewed the parking requirement for office buildings within Professional and
Business Office sites.
(12) Planned Community Text revision (Amendment No. 514, adopted October 19, 1978)
incorporating the following changes:
a. Established existing and additional allowable development as of October 1, 1978.
b. Established the requirement and criteria for phasing plan approval of development
beyond thirty (30) percent of the additional
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(13) Planned Community text revision incorporating the transfer to allowable building area
from Professional and business Office Site "D: to Professional and Business Office Site
"B ". (Amendment No. 550, adopted November 10, 1980).
(14) Planned Community Text revision for Retail and Service Site No. 1, which allocates
existing and permitted development. (Amendment No. 558 adopted March 23, 1981).
(15) Planned community Text revision increasing the allowable building area in Site C
(MacArthur Court). (Amendment No. 593, adopted October 24, 1983).
(16) Planned Community Text revision incorporating the transfer of allowable office,
restaurant and retail building area from Professional and Business Office Site "A" to
Professional and Business Office Site `B ". (Amendment No. 606, adopted May 14,
1984).
(17) Planned Community Text revision to allow up to two restaurants with a total floor area not
to exceed 3,250 square feet within "Office Site C ". (Amendment No. 626, adopted
December 9, 1985).
(18) Planned Community Text revision deleting restaurant Site 1 and substituting a private club
with a total floor area not to exceed 30,000 square feet within Office Site "A ".
(Amendment No. 635, adopted July 14, 1986).
(19) Planned Community Text revision to allow auto detailing as a permitted use. (Amendment
No. 647, adopted March 23, 1987).
(20) Planned Community Text revision adding support commercial uses to the permitted uses
under Professional and Business Office permitted uses. (Amendment No. 649, adopted
July 27, 1987).
(21) Planned Community text revision combining Light Industrial Sites 1 and 2 into Light
Industrial Site 1, increasing the allowable building area for the combined site by 39,000
square feet, and increasing the permitted building height from 35 feet to 55 feet.
(Amendment No. 677, adopted June 12, 1989).
(22) Planned Community Text revision increasing the permitted building height in Light
Industrial Site 1 from 55 feet to 75 feet. (Amendment No. 799, adopted April 25, 1994).
(23) Title 20 amendment to reinstate notice and appeal procedures for specialty food service
applications. (Amendment No. 829, adopted September 11, 1995, Ordinance 95 -39)
(24) Planned Community Text revision to increase the permitted height within "Light Industrial
Site 1" from 75 feet to 90 feet for a single vertical column. (Amendment No. 867, adopted
February 23, 1998, Ordinance 98 -3).
(25) Planned Community Text revisions (Amendment No. 876, adopted August 10, 1998,
Ordinance 98 -20) to allow the following changes:
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a. Additional restaurant uses in Office Site "G" (the current limited of two restaurants
will be increased to three restaurant sites), and;
b. Permit eating and drinking establishments throughout the Koll Center Planned
Community as per Title 20 of the Municipal Code.
(26) Planned Community Text revisions (Amendment No. 890, adopted 01/11/2000, Ordinance
99 -28) to allow the following changes:
a. Increase the permitted level of development for Office Site A by 15,000 square
feet (4110 MacArthur Boulevard) and;
b. Establish the permitted level of development for Koll Center Newport Office Site
A at 418,346 gross square feet.
(27) Planned Community Text revisions (Amendment No. 897, adopted January 25, 2000,
Ordinance 2000 -3) to allow the following changes:
a. Designate Parcel 1 of Koll Center Newport Retail and Service Site 1 for Hotel
Use, and;
b. Establish the permitted Gross Floor Area for Koll Center Newport Retail and
Service Site 1 at 120,000 square feet, and
C. Establish the permitted height for the site at 60 feet.
(28) Planned Community Text revisions (Ordinance No. 2005 -014, adopted August 9, 2005) to
allow the following changes:
a. Office expansion of 1,367 net square feet in the Koll Center Office Site B at 4200
Von Karman Avenue.
(29) Planned Community Text revisions (Ordinance No. 2006 -19), adopted July 25, 2006 to
allow the following changes:
a. To increase the development allocation for Professional and Business Offices of
Site A by 2,129 net square feet. (PA2005 -293)
(30) Planned Community Text revisions (Ordinance No. 2006 -21), adopted October 24, 2006
to allow the following changes:
a. To allow the transfer of 24,016 gross square feet of unused retail, restaurant and
office square footage from Office Site B to Office Site A resulting in the
elimination of the entire Retail Site #1, an undeveloped portion of Restaurant Site
92 and the entire Restaurant Site #5.
(31) Planned Community Text revisions (Ordinance No. 2011 -3), adopted January 25, 2011
to allow the following changes:
02
City Council Ordinance No. 2013 -5
Page 60 of 62
a. To allow building area for Professional & Business Site F to increase by 18, 346 net
square feet.
(32) Planned Community Text revisions (Ordinance No. 2011 -8), adopted March 8, 2011 to
allow the following changes:
a. To allow an increase to the Allowable Building Area for Professional & Business
Site B by 9,917 net square feet
(33) Planned Community Text revisions (Ordinance No. 2013- ), adopted 2013 to
allow the following changes:
a. To delete Light Industrial Sites 1 and 2 from PC -11.
b. To delete Part I. Industrial uses in its entirety as an allowed use.
c. To revise the total acreage within PC -11 to 154.0 acres to reflect the deletion of Light
Industrial Sites 1 and 2 from PC -11.
d. To update the Composite exhibit and Exhibits A through E to reflect the deletion of
Light Industrial Sites 1 and 2 from PC -11.
Insert exhibits:
Composite .................
............................For Information Only -331
Exhibit A ...................
............................Land Used
Exhibit B .......................
........................Grading and Roads 3
Exhibit C .....................
..........................Storm Drain 3
Exhibit D .....................
..........................Water & Sewer 333)
Exhibit E ........................
.......................Boundary and Topography
(o3
City Council Ordinance No. 2013 -5
Page 61 of 62
x /:II- 3tl9 -]
PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION PC2012 -001
LAND USE DEVELOPMENT STANDARDS & PROCEDURES
Exhibit B is available for review at the City Hall in the offices of City Clerk and Planning Division
of Community Development Department and online at www.newportbeachca.gov
04
City Council Ordinance No. 2013 -5
Page 62 of 62
EXHIBIT C
PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION PC2012 -001
PHASING PLAN
Exhibit C is available for review at the City Hall in the offices of City Clerk and Planning Division
of Community Development Department and online at www.newportbeachca.gov
05
City Council Ordinance No. 2013 -5
Page 63 of 62
EXHIBIT D
PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION PC2012 -001
DESIGN GUIDELINES
Exhibit D is available for review at the City Hall in the offices of City Clerk and Planning Division
of Community Development Department and online at www.newportbeachca.gov
MW
Attachment No. CC 2
Ordinance No. 2013 -6
07
02
ORDINANCE NO. 2013 -6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH APPROVING DEVELOPMENT AGREEMENT NO. DA2012 -003 FOR
THE 25.05 ACRE PLANNED COMMUNITY KNOWN AS UPTOWN
NEWPORT LOCATED AT 4311 -4321 JAMBOREE ROAD (PA2011 -134)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
01*61N :•]iaRclr_Ir:1�•1:1►11901 N;r_kxo 11103
1. An application was filed by Uptown Newport LP ( "Uptown Newport" or "Applicant') with
respect to a 25.05 -acre property generally located on the north side of Jamboree Road
between Birch Street and the intersection of Von Karman Avenue and MacArthur
Boulevard, legally described as Lots 1 and 2 of Tract No. 7953 and incorporated
herein by reference, (the 'Property') requesting approval for the development of up to
1,244 residential dwelling units, 11,500 square feet of retail commercial uses and 2.05
acres of parklands (the `Project'). The following approvals are requested or required in
order to implement the project as proposed:
a. Planned Community Development Plan Amendment No. PD2011 -003: An
amendment to Planned Community Development Plan #15 (Koll Center Planned
Community) to remove the subject property from the Koll Center Planned
Community, pursuant to Chapter 20.66 (Amendments) of the Municipal Code.
b. Planned Community Development Plan Adoption No. PC2012 -001: A Planned
Community Development Plan (PCDP) adoption to establish the allowable land
uses, general development regulations, and implementation and administrative
procedures, which would serve as the zoning document for the construction of up
to 1,244 residential units, 11,500 square feet of retail commercial, and 2.05 acres
of park space to be built in two separate phases on a 25.05 -acre site, pursuant to
Chapter 20.56 of the Municipal Code. The PCDP has three (3) components: 1)
Land Uses, Development Standards & Procedures; 2) Phasing Plan; and 3)
Design Guidelines.
C. Tentative Tract Map No. NT2012 -002: A tentative tract map to establish lots for
residential development purposes pursuant to Title 19 of the Municipal Code.
d. Traffic Study No. TS2012 -005: A traffic study pursuant to Chapter 15.40 (Traffic
Phasing Ordinance) of the Municipal Code.
e. Affordable Housing Implementation Plan No. AH2012 -001: A program specifying
how the proposed project would meet the City's affordable housing requirements,
pursuant to Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density
Bonus) of the Municipal Code.
M•
City Council Ordinance No. 2013 -6
Page 2 of 5
f. Development Agreement No. DA2012 -003: A Development Agreement between
the applicant and the City of Newport Beach describing development rights and
public benefits, pursuant to Section 15.45.020.A.2.a of the Municipal Code and
General Plan Land Use Policy LU6.15.12.
2. The Property has a General Plan designation of Mixed -Use District Horizontal -2 (MU-
112), and the Property is located within the Airport Business Area, for which the Airport
Business Area Integrated Conceptual Development Plan (" ICDP ") has been adopted.
The ICDP allocates a maximum of 1,244 residential units and up to 11,500 square feet
of retail to be developed on the Property.
3. The Property is currently located within the City of Newport Beach ( "City ") Koll Center
Newport Planned Community and is designated as Industrial Site 1.
4. The Planning Commission held a study session on October 4, 2012, and public
hearings for the Project on December 6, 2012, December 20, 2012, and February 7,
2013. At the February 7th hearing with a vote of 7 -0, the Planning Commission
adopted Resolution No. 1908, recommending certification of the Uptown Newport
Final Environmental Impact Report (SCH No. 2010051094) and approval of the
Project to the City Council.
5. The City Council held a public hearing on February 26, 2013, in the City Hall Council
Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of the
time, place and purpose of the aforesaid meeting was provided in accordance with
CEQA and the Newport Beach Municipal Code ( "NBMC "). The Draft Environmental
Impact Report (Draft EIR) and Final Environmental Impact Report (Final EIR) which
consists of the Comments, Responses to Comments, and Revisions to DEIR (Draft
Environmental Impact Report), Mitigation Monitoring and Reporting Program, staff
report, and evidence, both written and oral, were presented to and considered by the
City Council at the scheduled hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. The Uptown Newport Final Environmental Impact Report (SCH No. 2010051094) was
prepared for the Project in compliance with the California Environmental Quality Act
(CEQA), the State CEQA Guidelines, and City Council Policy K -3.
2. The City Council, having final approval authority over the Project, adopted and certified
as complete and adequate the Uptown Newport Final Environmental Impact Report,
and adopted "Findings and Facts in Support of Findings for the Uptown Newport
Project Final Environmental Impact Report" ( "CEQA Findings ") containing within
Resolution No. 2013 -21 on February 26, 2013, which are hereby incorporated by
reference.
3. The City Council adopted a Statement of Overriding Considerations for the certification
of the Uptown Newport Final Environmental Impact Report (SCH No. 2010051094) by
Resolution No. 2013 -22 on February 26, 2013, and is hereby incorporated reference.
70
City Council Ordinance No. 2013 -6
Page 3 of 5
4. The City Council overruled the Orange County Airport Land Use Commission's
determination that the Uptown Newport project is inconsistent with the Airport Environs
Land Use Plan for the John Wayne Airport by Resolution No. 2013 -23 on February 26,
2013, and is hereby incorporated by reference.
5. The City Council finds that judicial challenges to the City's CEQA determinations and
approvals of land use projects are costly and time consuming. In addition, project
opponents often seek an award of attorneys' fees in such challenges. As project
applicants are the primary beneficiaries of such approvals, it is appropriate that such
applicants should bear the expense of defending against any such judicial challenge,
and bear the responsibility for any costs, attorneys' fees and damages which may be
awarded to a successful challenger.
SECTION 3. FINDINGS.
1. The proposed Project is consistent with the goals and policies of the Newport Beach
General Plan and Integrated Conceptual Development Plan. The City Council concurs
with the conclusion of the consistency analysis of the proposed project with these
goals and policies provided in the Uptown Newport Final Environmental Impact Report
(SCH No. 2010051094).
2. In accordance with NBMC Section 15.45.020.A.2.a and c, a development agreement
is required pursuant to General Plan Policy LU 6.15.12 as the project: 1) requires a
zoning code amendment that includes the development of more than fifty (50)
residential units; and 2) includes new non - residential development in Statistical Area
L4 (Airport Area).
3. 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 and Government Code Section 65867.5.
SECTION 4. DECISION.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached
hereto and incorporated by reference.
2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any
reason, held to be invalid or unconstitutional, such decision shall not affect the validity
or constitutionality of the remaining portions of this ordinance. The City Council hereby
declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
3. This action shall become final and effective thirty (30) days after the adoption of this
Ordinance.
71
City Council Ordinance No. 2013 -6
Page 4 of 5
4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on the 26th of February, 2013, and adopted on the 12th day of March, 2013, by
the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBE
ABSENT, COUNCIL MEMB
MAYOR
rWArrlr=11
Leilani Brown, City Clerk
APPROVED AS TO FORM,
OFFICE OF CITY ATTORNEY:
Aaron Harp, City Attorney
for the City of Newport Beach
72
City Council Ordinance No. 2013 -6
Page 5 of 5
EXHIBIT A
DEVELOPMENT AGREEMENT
73
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
UPTOWN NEWPORT LP
CONCERNING UPTOWN NEWPORT PROPERTY
2/15/2013 rxccwion Copy 74
TABLE OF CONTENTS
1. Definitions ....... ...............................
Page
............................. ............................... 3
2. General Provisions .............................................................................. ..............................7
2.1
Plan Consistency, Zoning Implementation ............................. ..............................7
2.2
Binding Effect of Agreement .................................................. ..............................7
2.3
Landowner Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement .. ..............................7
2.4
Term ........................................................................................ ..............................7
3. Public
Benefits .................................................................................... ..............................8
3.1
Public Benefit Fee ................................................................... ..............................8
3.2
Other Public Benefits ............................................................... ..............................9
4. Development of Project .................................................................... ..............................1 l
4.1 Applicable Regulations; Landowner's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals............................................................................... .............................11
4.2 No Conflicting Enactments .................................................... .............................12
4.3 Reservations of Authority ...................................................... .............................13
4.4 Tentative Subdivision Maps .................................................. .............................15
5. Amendment or Cancellation of Agreement ....................................... .............................15
6. Enforcement
............................................................. .............................15
7. Annual Review of Landowner's Compliance With Agreement ........ .............................16
7.1
General ................................................................................... .............................16
7.2
Landowner Obligation to Demonstrate Good Faith Compliance .......................16
7.3
Procedure ............................................................................... .............................16
7.4
Annual Review a Non - Exclusive Means for Determining and Requiring
Cure of Landowner's Default ................................................ .............................16
S. Events
of Default ............................................................................... .............................16
8.1
General Provisions ................................................................. .............................16
8.2
Default by Landowner ........................................................... .............................17
8.3
City's Option to Terminate Agreement ................................. .............................17
8.4
Default by City ....................................................................... .............................17
8.5
Waiver .................................................................................... .............................18
8.6
Specific Performance Remedy ............................................... .............................18
8.7
Monetary Damages ................................................................ .............................18
8.8
Additional City Remedy for Landowner's Default ............... .............................18
8.9
No Personal Liability of City Officials„ Employees, or Agents ........................18
8.10
Recovery of Legal Expenses by Prevailing Party in Any Action .......................19
9. ForceMajeure .................................................................................... .............................19
2114 -201 3 vz _ {i
Page
10. Indemnity Obligations of Landowner ................................................ .............................19
10.1
Indemnity Arising from Acts or Ommissions of Landowner .............................
19
10.2
Third Party Litigation ............................................................ .............................20
10.3
Environmental Indemnity ...................................................... .............................20
11. Assignment
........................................................................................ .............................20
12. Mortgagee Rights ............................................................................... .............................21
12.1
Encumbrances on Property .................................................... .............................21
12.2
Mortgagee Protection ............................................................. .............................22
12.3
Mortgagee Not Obligated ...................................................... .............................22
12.4
Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................22
13. Miscellaneous
Terms ....................................................................... ...............................
23
13.1
Notices ................................................................................... .............................23
13.2
Project as Private Undertaking ............................................... .............................23
13.3
Cooperation ............................................................................ .............................24
13.4
Estoppel Certificates .............................................................. .............................24
13.5
Rules of Construction ............................................................ .............................24
13.6
Time Is of the Essence ........................................................... .............................24
13.7
Waiver .................................................................................... .............................24
13.8
Counterparts ........................................................................... .............................24
13.9
Entire Agreement ................................................................... .............................25
13.10
Severability ............................................................................ .............................25
13.11
Construction ........................................................................... .............................25
13.12
Successors and Assigns; Constructive Notice and Acceptance ..........................25
13.13
No Third Party Beneficiaries ................................................. .............................26
13.14
Applicable Law and Venue .................................................... .............................26
13.15
Section Headings ................................................................... .............................26
13.16
Incorporation of Recitals and Exhibits .................................. .............................26
13.17
Recordation ............................................................................ .............................26
21W201 Q -ii-
70
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864- 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement ") is dated for reference
purposes as of the _ day of _, 2012 (the "Agreement Date "), and is being entered into by and
between the CITY OF NEWPORT BEACH ( "City "), and UPTOWN NEWPORT LP, a
Delaware limited partnership ( "Landowner "). City and Landowner are sometimes collectively
referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Landowner is the owner of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311 -4321 Jamboree Road (APN # 445- 131 -02, 445 - 131 -03), and generally
located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the
"Property "). 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. In order 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 in order 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 (the "Development Agreement Statute ") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "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), Landowner has agreed to provide the following significant public benefits as
consideration for this Agreement:
• Payment of a public benefit fee in the sum of thirty -two thousand five hundred dollars
($32,500.00) per residential dwelling unit developed as part of the Project (as defined
herein), including an annual adjustment to the public benefit fee based on the
Consumer Price Index ( "CPP').
• Park land dedication and improvements consistent with applicable State law and
Municipal Code provisions, including the dedication and improvement of over two
(2) acres of on -site public parkland.
• Perpetual private maintenance of over two (2) acres of on -site public parks.
2/14!2013 v3 -t- .y -
• Improvement of private open space, including paseos and urban plazas that will be
accessible to the public and connect the Project and surrounding properties to
promote connectivity and pedestrian travel in the Airport Area.
• Remediation of soil and groundwater contamination on the Property that has existed
on -site since the mid- 1980's.
• Reduction in greenhouse gases generated within the Airport Area.
• Reduction in electric, gas, water and sewer utility usage through the redevelopment of
an existing industrial manufacturing site into a residential mixed use project.
• Reduction of urban runoff volumes and implementation of stormwater runoff water
quality facilities that will improve the quality of stonnwater runoff entering the
Newport Back Bay.
• Construction of affordable housing units within the Project that will provide
affordable housing opportunities to Newport Beach residents.
E. This Agreement is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan that is being adopted and approved by the City
Council concurrently with its approval of this Agreement in order to establish appropriate zoning
to regulate land use and development of the Property consistent with the General Plan.
F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final Environmental Impact Report for the City of Newport Beach General
Plan 2006 Update (State Clearinghouse No. 200601 1 1 1 9) and the final Environmental Impact
Report (No. ER2012 -001) (SCH #2010051094) ( "EIR ") that has been certified or is being
certified for approval by the City Council on or before the Agreement Date, both 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.
G. On February 7, 2013, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
H. On February 26, 2013, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Landowner, and members of the public. On
2013, consistent with applicable provisions of the Development Agreement
2/14 +2013 v3 2 72
Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No.
(the "Adopting Ordinance "), finding this Agreement to be consistent with the City of
Newport Beach General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Landowner agree as follows:
I. Definitions.
In addition to any terns defined elsewhere in this Agreement, the following tenns 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. _ approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
from time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CEO A" 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, section
15000 et seg.), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
2A4n01 3 3 3 �
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.
"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
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) Uptown Newport Planned Community Development Plan
Adoption No. PC2012 -001 which consists of Land Uses, Development Standards and Procedures
(dated ), Design Guidelines (dated ),
and Phasing Plan (dated ); (3) Planned Community Development Plan
Amendment No. PD2011 -003; (4) Tentative Tract Map No. NT2012 -002; (5) Affordable
Housing Implementation Plan No. AH2012 -001; (6) Traffic Study No. TS2012 -005; (7) Site
Plan 9- 19- 2012); (11) Environmental Impact Report No. ER2012 -001 (SCH #2010051094); and
(12) all conditions of approval and all mitigation-measures 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 impairs or restricts Landowner's rights set
forth in this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by Landowner in writing: the General Plan; the Development Plan;
and, to the extent not expressly superseded by the Development Plan or this Agreement, all other
land use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
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
2/[4/2013 Q 4 20
without limitation Title 5 of the Municipal Code (business licenses and regulations).
Notwithstanding the foregoing, the teen "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 the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance 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 such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, 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,
and /or the applicable Development Regulations, whether such finality is achieved by a final non -
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the
Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be
executed and recorded against the Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et SM., 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 sec ., as amended
( "RC RA "); 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 sea., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety
Code Section 25100, et sec .
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, excluding any amendment after the Effective Date that
impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
2/M2013 Q 5 21
agreed to by Landowner. The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic' under any
Environmental Law.
"Landowner" shall mean Uptown Newport LP, a Delaware limited partnership, and any
successor or assignee to all or any portion of the right, title, and interest of Uptown Newport LP
in and to ownership of all or a portion of the Property.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Landowner or both, as determined by the
context.
"Project" shall mean all on -site and off -site improvements that Landowner is authorized
and /or required to construct with respect to each parcel of the Property, 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 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 Landowner 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, with the understanding that except as expressly set forth herein City shall
not have the right subsequent to the Effective Date and during the Term of this Agreement to
adopt or impose requirements for any such Subsequent Development Approvals that do not exist
as of the Agreement Date.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
" Tenmination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2/14i2013 0 6 g�
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Landowner Representations and Warranties Regarding Ownership of the Propert y
and Related Matters Pertaining to this Agreement.
Landowner and each person executing this Agreement on behalf of Landowner hereby
represents and warrants to City as follows: (i) that Landowner is the owner of the fee simple title
to the Property; (ii) if Landowner or any co -owner comprising Landowner is a legal entity that
such entity is duly formed and existing and is authorized to do business in the State of California;
(iii) if Landowner or any co -owner comprising Landowner 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 Landowner to enter into this Agreement have
been taken and that Landowner has the legal authority to enter into this Agreement; (v) that
Landowner'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 Landowner or any person or
entity comprising Landowner has to any third party; (vi) that neither Landowner nor any co-
owner comprising Landowner is the subject of any voluntary or involuntary bankruptcy or
insolvency petition; and (vii) that Landowner has no actual knowledge of any pending or
threatened claims of any person or entity affecting the validity of any of the representations and
warranties set forth in clauses (i) -(vi), inclusive, or affecting Landowner's authority or ability to
enter into or perform any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "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 either
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/have been disapproved by City's voters at a referendum
election or (ii) a final non - appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and /or any of such Development Regulations is /are invalid and unenforceable in whole or in
such a substantial part that the judgment substantially impairs such Party's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute
discretion, shall have the right to terminate this Agreement upon delivery of a written notice of
2n4rz01 3 0 7 2S
termination to the other Party, in which event neither Party shall have any further rights or
obligations hereunder except that Landowner'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 similarly be null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the fifteenth (15th)
anniversary of the Effective Date, as said date may be extended in accordance with Section 5.1
of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance
with Articles 5, 7, and /or Section 8.3 of this Agreement and /or Sections 65865.1 and /or 65868 of
the Development Agreement Statute; (iii) as to any separate legal lot within the Property (but not
as to the balance of the Property or the portion thereof that remains subject to this Agreement at
such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project
in accordance with the terms of this Agreement, including Owner's complete satisfaction,
perfonnance, 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.
As used herein, the term "Lot Termination Date" for any separate legal lot within the
Property means the date on which all of the following conditions have been satisfied with respect
to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one
year), individually or in a "bulk" of four or fewer lots, to a member of the public or other
ultimate user; (ii) a final Certificate of Occupancy or "Release of Utilities" has been issued for
the building or buildings approved for construction on said lot; (iii) the duties under this
Agreement and the Development Plan have been fully satisfied with respect to said lot; (iv) the
Master Site Improvements as described in and required by the Development Plan, and approved
as part of the Master Site Development Plan review, have been completed for said lot.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other Landowner obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
3. Public Benefits
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge
to which the Property and the Project would otherwise be subject (herein, the "Public Benefit
Fee ") in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00) per residential
dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit
Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January I" date (the first "Adjustment Date ") and thereafter
with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1
during the Tern of this Agreement (each, an "Adjustment Date ") by the percentage increase in
the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage
increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated
V 2000 8 24
based on the then most recently available CPI Index figures such that, for example, if the
Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure
on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall
pay the Public Benefit Fee on a per unit basis at the time each residential building permit is
issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during
the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the
CPI Index as stated in this Section 3.1. Landowner 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 Landowner's vesting rights to be acquired hereunder, and that Landowner
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 such 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 Landowner's default, if Landowner 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 permits, occupancy permits, or other development or building permits for
the Project.
3.2 Other Public Benefits.
In addition to the Public Benefit Fee, the direct and indirect benefits City expects to
receive pursuant to this Development Agreement are as follows:
3.2.1 Park Land Dedication and Improvements. Based upon the number of residential
dwelling units approved in the Development Plan, City calculated that Landowner's park land
dedication for the Project pursuant to the City General Plan, Government Code Section 66477
( "Quimby Act ") and Municipal Code Chapter 19.52 is 13.62 acres. City acknowledges that
Landowner's performance of its obligations as set forth in this section satisfies all of
Landowner's General Plan, Quimby Act and Municipal Code Chapter 19.52 obligations
governing park land dedication and fees. City acknowledges that Landowner shall be eligible to
receive credit against the payment of fees or dedication of land consistent with the General Plan,
Quimby Act and Municipal Code Chapter 19.52. As of the Effective Date, the established fair
market value per acre figure used in assessing in -lieu of park dedication fees equals Two Million
Five Hundred Thousand Dollars ($2,500,000). Landowner fees and credit shall be based on the
established Two Million Five Hundred Thousand Dollars ($2,500,000) per acre. Landowner
shall undertake the following:
i. On -Site Parks. Landowner shall construct and improve two
(2), one (1) acre parks within the Property pursuant to the Development Plan. Landowner shall
offer the two (2) on -site parks to the City for dedication in fee simple, and City shall accept
Landowner's offer for dedication provided that the parks have been completed in accordance
214/2013 Q 9 25
with the requirements of the Development Plan. The parks may be offered for dedication and
accepted by the City either together as one action or separately at different times. The two (2)
parks shall be privately maintained (by Landowner or the Master Association as defined in the
Development Plan) in perpetuity and in accordance with the Development Plan as set forth in a
separate written maintenance and license agreement approved as to form by the City Attorney.
Such agreement shall grant Landowner and /or the private Master Association access to the parks
and the park facilities, including drainage and stonnwater runoff facilities, for operation and
maintenance. The maintenance and license agreement shall also provide for Landowner or
Master Association's responsibility for maintaining stonnwater and water quality improvements
in perpetuity and in accordance with the Development Plan. Landowner shall be eligible to
receive credit against the payment of fees or dedication of land for park construction and
dedication. The dollar amount of the credit shall be based on land value and final park
construction and improvement costs, (excluding land value), which shall be review and approved
by the Community Development Director and shall include, but not be limited to, the cost to
design, engineer, construct, install, supervise and inspect the park and improvements, including
any permit and inspection fees to be paid to City with respect thereto and the cost of obtaining
and maintaining in effect security instruments for the work. The credit shall be determined by
the Community Development Director at the time the City accepts the offer of dedication.
ii. Public Recreational Open Space Areas. Landowner shall
construct and improve public recreational open space areas pursuant to the Development Plan.
Public recreational open space areas shall be open to the public but privately owned and
maintained by Landowner or a private master association in perpetuity and in accordance with
the Development Plan. Pursuant to General Plan land use policy 6.15.16, Landowner may be
eligible to receive up to thirty percent (30 %) credit against the payment of fees or dedication of
land for such open space recreational areas. The dollar amount of the credit shall be based on
land value established by multiplying the eligible acreage by Two Million Five Hundred
Thousand Dollars ($2,500,000). The percentage credit and the eligible acreage shall be
determined by the Community Development Director at the time final improvement plans are
approved. The acreage of open space that is accessible to the public during daylight hours,
visible from public rights -of -way and of sufficient size to accommodate recreational use by the
public may be eligible for credit. Public open space recreational area construction costs shall not
be considered for credit.
iii. Private Recreational Amenities. Landowner shall construct
and improve private recreational amenities and open space pursuant to the Development Plan.
Private recreational amenities shall be privately owned and maintained in perpetuity by
Landowner or a private master association. For private recreational amenities, Landowner may
be eligible to receive up to twenty percent (20 %) credit against the payment of fees or dedication
of land. The dollar amount of the credit shall be based on land value established by multiplying
the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The
percentage credit and the eligible acreage shall be determined by the Community Development
Director at the time building plans are submitted. Credited private recreational facilities include
active recreation facilities such as playfields, turfed play areas, tot lots, recreation buildings,
swimming pools and playing courts, and similar facilities. Privately maintained bicycle or
hiking trails that connect to trails outside the Property and which are open to the public shall be
eligible. Passive open space, such as setback areas and passive greenbelts shall not be eligible.
211412013 v3 10 20
iv. In -lieu of parkland dedication fees shall be paid to the City
prior to the issuance of building pen-nits. Payment shall be made for all units included on any
final map(s) at the time that the first building permit is issued for any single unit included on a
final map(s). The fee amount shall be based on the pro -rated gross acreage of the final map
minus any parkland dedication and applicable credits for recreational improvements approved by
the City pursuant to the General Plan and the Subdivision Code within the area encompassed by
the final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned
community (or 39.92% of the total acreage), the fee required prior to final map recordation
would be 39.92% of the 13.62 acre parkland dedication requirement minus any parkland
dedication and any approved credits for recreational improvements.
3.2.2 AHIP. The Parties have agreed to an Affordable Housing Implementation Plan
No. AH2012- 001(the "AHIP ") to identify the manner in which Project is to satisfy the City's
affordable housing requirements, pursuant to Municipal Code Chapter 19.53 (Inclusionary
Housing) and Chapter 20.32 (Density Bonus). Landowner agrees to implement the AHIP.
3.2.3 Undergrounding of Electrical Lines
City and Landowner may cooperate in good faith with each other in connection with the
formation of an assessment district, if any, and construction of underground utility lines.
4. Development of Project.
4.1 Applicable Regulations; Landowner'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) Landowner 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 City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) 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 referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion
to the same extent City 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
Landowner's rights with respect to any laws, regulations, rules, or official policies of any other
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.
2n4n013 v3 11 g�
Landowner has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Landowner represents and City
acknowledges that Landowner would not make these expenditures without this Agreement, and
that Landowner is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Landowner may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, 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,
Landowner may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the tinning of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that Landowner
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing, and sequencing that Landowner deems appropriate within the exercise of Landowner'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 Landowner's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
2 /1 4 72 01 3 �3 12 22
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. 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
Landowner shall be required to pay all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Owner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Landowner
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, Landowner 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 Landowner and the Project in the absence of this Agreement; provided, however, that to
the extent the scope and extent of a particular Development Exaction for the Project has been
established and fixed by City in this Agreement or the conditions of approval for any of the
Development Regulations approved on or before the Agreement Date City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without Landowner's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest Landowner against
the obligation to pay any of the following (which are not included within the definition of
"Development Exactions ") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications; (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,
nazoia vs 13 2
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 Landowner'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) Landowner 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
Landowner 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 Landowner shall meet and confer in good faith in a reasonable attempt to
determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Landowner agree to preserve the terms of this Agreement and the rights of
Landowner as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Landowner at no cost to City in resolving the conflict in a
manner which minimizes any financial impact of the conflict upon Landowner. City also agrees
to process in a prompt manner Landowner's proposed changes to the Project and any of the
Development Regulations as may be necessary to comply with such overriding federal, state, or
City law or regulation; provided, however, that the approval of such changes by City shall be
subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Landowner'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 Landowner 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 Landowner
or the Property any utility capacity, service, or facilities that may be needed to serve the Project,
2/142013 v3 14 9O
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 detennines
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 - discri minatory basis (i.e., on the same terns and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
4.4 Tentative Subdivision Maps
City agrees that Landowner may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code sections 66498.1- 66498.9 and City
of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Govenunent Code section 66452.6(a)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, shall be extended for the Term of this Agreement.
4.5 Light Industrial Land Uses
Light industrial land uses will cease on the Property as of March 12, 2027.
5. Amendment or Cancellation of Agreement
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of Landowner.
5.1 Extension.
Landowner may request up to, and upon receipt of a written request from Landowner,
City shall grant two (2) five (5) year extensions that extend the Term of this Agreement for a
total of ten (10) additional years provided that Landowner has submitted its written request to
extend this Development Agreement and the following has occurred: (1) For the first five (5)
year extension, building permits for the two hundred fiftieth (250th) units have been issued; and
(2) For the second five (5) year extension, receipt of building permits for five hundredth (500th)
units have been issued.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
2114;2013 Q 15 9:L
7. Annual Review of Landowner'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. Landowner (including any successor to the owner executing this
Agreement on or before the Agreement Date) 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 Landowner Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Landowner is required to demonstrate good faith
compliance with the terms of the Agreement. Landowner agrees to furnish such evidence of
good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty
(30) days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not Landowner has, for the period under review,
complied with the terms of this Agreement. If the City Council finds that Landowner has so
complied, the annual review shall be concluded. If the City Council finds, on the basis of
substantial evidence, that Landowner has not so complied, written notice shall be sent to
Landowner by first class mail of the City Council's finding of non - compliance, and Landowner
shall be given at least ten (10) days to cure any noncompliance that relates to the payment of
money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the
payment of money cannot be completed within thirty (30) days for reasons which are beyond the
control of Landowner, Landowner must commence the cure within such thirty (30) days and
diligently pursue such cure to completion. If Landowner fails to cure such noncompliance
within the time(s) set forth above, such failure shall be considered to be a Default and City shall
be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring, Cure of
Landowner'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 Landowner or limit City's rights or remedies for any such
Default.
S. 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 have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
2/1,12013 v3 16 92
alleged Default and a reasonable mamher and sufficient period of time (twenty (20) days if the
Default relates to the failure to timely make a monetary payment clue hereunder and not less than
thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the
"Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of tennination 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) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by Landowner.
If Landowner 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) days of
receiving the Notice of Default, and a public hearing shall be scheduled at the next available City
Council meeting to consider Landowner's appeal of the Notice of Default. Failure to appeal a
Notice of Default to the City Council within the ten (10) day period shall waive any right to a
hearing on the claimed Default. If Landowner's appeal of the Notice of Default is timely and in
good faith but after a public hearing of Landowner's appeal the City Council concludes that
Landowner is in Default as alleged in the Notice of Default, the accrual date for commencement
of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City
Council's denial of Landowner's appeal is communicated to Landowner.
8.3 City's Option to Terminate Agreement
In the event of an alleged Landowner Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Landowner with the
opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and
complying with Section 8.2 if Landowner timely appeals any Notice of Default with respect to a
non - monetary Default. A termination of this Agreement by City shall be valid only if good
cause exists and is supported by evidence presented to the City Council at or in connection with
a duly noticed public hearing to establish the existence of a Default. The validity of any
termination may be judicially challenged by Landowner. Any such judicial challenge must be
brought within ninety (90) calendar days of service on Landowner, 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 Landowner alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Landowner may pursue any equitable remedy available to it under this
Agreement, 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 Landowner's performance hereunder shall neither be a Landowner Default
nor constitute grounds for termination or cancellation of this Agreement by City and shall, at
Landowner's option (and provided Landowner delivers written notice to City within thirty (30)
2/14/2013 Q 17 9S
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 either 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 Landowner 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. Landowner 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 Landowner or City for such
efforts. For the above reasons, City and Landowner agree that damages would not be an
adequate remedy if either City or Landowner fails to carry out its obligations under this
Agreement. Therefore, specific performance of this Agreement is necessary to compensate
Landowner if City fails to carry out its obligations under this Agreement or to compensate City if
Landowner 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 either 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 Landowner as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or
the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for Landowner's Default.
In the event of any Default by Landowner, 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
Landowner's Default without recourse from Landowner 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.
21W2013 0 18 94
8.10 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 recover all of its actual and reasonable 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 expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Landowner's obligation to pay Public
Benefit Fees, be extended pursuant to this Section.
10. Indemnity Obligations of Landowner.
10.1 Indemnity Arising From Acts or Omissions of Landowner.
Except to the extent caused by the intentional misconduct or negligent acts, errors or
omissions of City or one or more of City's officials, employees, agents, attorneys, and
contractors (collectively, the "City's Affiliated Parties ") , Landowner shall indemnify, defend,
and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities,
losses, damages, penalties, obligations, and expenses (including but not limited to reasonable
attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or indirectly, from the
acts, omissions, or operations of Landowner or Landowner's agents, contractors, subcontractors,
agents, or employees in the course of Development of the Project or any other activities of
Landowner relating to the Property or pursuant to this Agreement. City shall have the right to
select and retain counsel to defend any Claim filed against City and /or any of City's Affiliated
Parties, and Landowner 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 10.1, Landowner shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for
the Project (including without limitation any actions taken pursuant to CEQA with respect
211 nr2n a 3 19 95
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, and court costs. City shall promptly notify Landowner of any such
Claim and City shall cooperate with Landowner in the defense of such Claim. If City fails to
promptly notify Landowner of such Claim, Landowner shall not be responsible to indemnify,
defend, and hold City harmless from such Claim until Landowner is so notified and if City fails
to cooperate in the defense of a Claim Landowner 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 defense costs for its separate counsel shall be included in Landowner's
indemnity obligation, provided that such counsel shall reasonably cooperate with Landowner in
an effort to minimize the total litigation expenses incurred by Landowner. In the event either
City or Landowner recovers any attorney's fees, expert witness fees, costs, interest, or other
amounts from the party or parties asserting the Claim, Landowner shall be entitled to retain the
same (provided it has fully performed its indemnity obligations hereunder). The indemnity
provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date Landowner shall indemnify, defend, and hold harmless City and City's
Affiliated Parties from and against any and all Claims for personal injury or death, property
damage, economic loss, statutory penalties or fines, and damages of any kind or nature
whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and
costs, based upon or arising from any of the following: (i) the actual or alleged presence of any
Hazardous Substance on or under any of the Property in violation of any applicable
Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the
Property through the soils or groundwater to a location or locations off of the Property; and (iii)
the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the
Property and any other area disturbed, graded, or developed by Landowner in connection with
Landowner's Development of the Project. The foregoing indemnity obligations shall not apply
to any Hazardous Substance placed or stored on a separate legal lot within the Property after the
Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity
provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
11. Assignment.
Landowner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer ") Landowner's fee title to the Property, in whole or in part, to a Permitted
Transferee(which successor, as of the effective date of the Transfer, shall become the
"Landowner" under this Agreement) at any time from the Agreement Date until the Termination
Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision
Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any
such transfer shall include the assignment and assumption of Landowner's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
2114/2013 v3 20 go
so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Landowner's rights or interest under this Agreement shall
be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to
the effective date of any proposed Transfer, Landowner (as transferor) shall notify City, in
writing, of such proposed Transfer and deliver to City a written assignment and assumption,
executed in recordable form by the transferring and successor Landowner and in a form subject
to the reasonable approval of the City Attorney of City (or designee), pursuant to which the
transferring Landowner assigns to the successor Landowner and the successor Landowner
assumes from the transferring Landowner all of the rights and obligations of the transferring
Landowner with respect to the Property or portion thereof to be so Transferred, including in the
case of a partial Transfer the obligation to perfonn such obligations that must be performed
outside of the Property so Transferred that are a condition precedent to the successor
Landowner'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
Landowner under this Agreement with respect to the portion of 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 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 Landowner with respect to the balance of the Property.
Notwithstanding any Transfer, the transferring Landowner shall continue to be jointly
and severally liable to City, together with the successor Landowner, 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 Landowner shall be
automatically released from any and all obligations with respect to the portion of the Property so
Transferred: (i) the transferring Landowner 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 Landowner 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 Landowner 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 Landowner either (A) provides City with substitute
security equivalent to any security previously provided by the transferring Landowner to City to
secure performance of the successor Landowner's obligations hereunder with respect to the
Property or the portion of the Property so Transferred or (B) if the transferred obligation in
question is not a secured obligation, the successor Landowner either provides security reasonably
satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor
Landowner 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.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Landowner in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
2.1:12013 Q 21 97
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease tennination, or otherwise) shall be subject to all
of the terns 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 Landowner or
other affirmative covenants of Landowner, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Landowner 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 Landowner 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) days after receiving a Notice of Default with respect to a monetary Default and
within sixty (60) 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) days after obtaining possession and, except in case of emergency or to protect
the public health or safety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the
sixty (60) -day period. In the case of a non- monetary Default that cannot with diligence be
remedied or cured within sixty (60) 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) days and diligently prosecutes
the cure to completion.
2 14,20 13 v3 22 92
13. Miscellaneous Tenns.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
With a copy to:
TO LANDOWNER:
With a copy to:
Newport Beach, California 92663 -3884
Attn: City Manager
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Uptown Newport, LP
c/o The Shopoff Group, L.P
2 Park Plaza, Suite 700
Irvine, CA 92614
Attn: William A. Shopoff
Jackson DeMarco Tidus Peckenpaugh
2030 Main Street, 12th Floor
Irvine, CA 92614
Attn: Gregory P. Powers, Esq.
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13. 1, and thereafter notices to such Party 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 (iii) three
business days after deposit in the mail as provided above.
13.2 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terns, covenants, and conditions set forth in this Agreement. This Agreement forms no
2'1 4+2013 3 23 9.9
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.
13.3 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.
13.4 Estoppel Certificates.
At any time, either 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 performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 Counterparts.
2,1412013 v3 24 100
This Agreement may be executed in two 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 and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement except for the Affordable Housing
Implementation Plan (No. AH2O12 -00 t).
13.10 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 neither 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 Landowner shall not receive any
of the benefits of this Agreement if any of Landowner'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 Landowner shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Landowner's obligations under this Agreement. The provisions
of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
13.11 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Landowner are sophisticated parties who were represented by independent counsel throughout
the negotiations or City and Landowner had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Landowner 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 either Party.
13.12 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. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. 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
2/1412013 va 25 101
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 13.12 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 assigmnent and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Landowner. 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.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal 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.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESCRIPTION
DESIGNATION
A
Legal Description of Property
B
Depiction of the Property
13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65363.5 and City of Newport
VH;2013 v3 26 102
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[SIGNATURE PAGE FOLLOWS]
X14;2013 0 27 10S
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"LANDOWNER"
UPTOWN NEWPORT LP, a Delaware
limited partnership
By: G &I VI NEWPORT CORP., a
Delaware corporation, its General Partner
By: _
Name:
Its:
"CITY"
CITY OF NEWPORT BEACH
ATTEST:
City Clerk
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Aaron Harp, City Attorney 5 3
Keith D. Curry, Mayor
2;1420130 28 104
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , who proved to me
on the basis of satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized capacities
and that by their signature on the instrument the persons, or the entity upon behalf of which the
persons 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.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , who proved to me
on the basis of satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized capacities
and that by their signature on the instrument the persons, or the entity upon behalf of which the
persons 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.
Notary Public in and for
said County and State
2/14120/3 Q -29 105
EXHIBIT A
LEGAL DESCRIPTION
Being a subdivision of Lots 1 and 2 of Tract No. 7953, in the City of Newport Beach,
County of Orange, State of California, as shown on a map recorded in Book 310, Pages 7
to 11 inclusive, of Miscellaneous Maps, recorded of said County.
100
EXHIBIT B
DEPICTION OF PROPERTY
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Master Site Plan
Uptown Newport
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Exhibit B
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Master Site Plan
Uptown Newport
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Master Site Plan
Uptown Newport
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