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HomeMy WebLinkAbout04 - Aerie - PA2005-196CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT io 4i'e>Iui.7i i4�Y oeil� Agenda Item No.22" July 14, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: James Campbell, Principal Planner (949) 644 -3210 iampbell (a)city.newport- beach.ca.us SUBJECT: AERIE (PA 2005 -196) 201 -205 & 207 Carnation Avenue & 101 Bayside Place ■ General Plan Amendment No. GP2005 -006 ■ Coastal Land Use Plan Amendment No. LC2005 -002 ■ Code Amendment No. CA2005 -009 ■. Tract Map No. NT2005 -004 (TTM16882) ■ Modification Permit No. MD2005 -087 Coastal Residential Development Permit No. CR2005 -002 Environmental Impact Report No. ER2008 -002 (SCH. No. 2007021054) APPLICANT: Advanced Real Estate Services, Inc. Richard Julian, President ISSUE Should the City Council amend the General Plan, Coastal Land Use Plan and Zoning Districting Map and approve a Tentative Tract Map, Modification Permit and a Coastal Residential Development Permit for the development of the AERIE project? RECOMMENDATION 1. Receive the applicant's presentation, staff report, open public hearing, and receive public comments; and 2. Adopt a resolution (Attachment 1) certifying the Final Environmental Impact Report (SCH. No. 2007021054) and adopting a Mitigation Monitoring and Reporting Program; and 3. Adopt a resolution (Attachment 3) adopting a Statement of Overriding Considerations and approving General Plan Amendment No. GP2005 -006, Coastal Land Use Plan Amendment No. LC2005 -002, Newport Tract Map No. NT2005 -004. (TTM16882), Modification Permit No. MD2005 -087 and Coastal Residential AERIE (PA2005 -196) July 14, 2009, Page 2 Development Permit No. CR2005 -002, subject to the attached findings and conditions. 4. Introduce an ordinance (Attachment 4) amending Zoning Districting Map thereby approving Code Amendment No. 2005 -009, and pass the ordinance to a second reading for adoption on July 28, 2009. BACKGROUND On August 14, 2007, the AERIE project was considered by the City Council. The City Council determined that the project was not consistent with policies of the Coastal Land Use Plan in that the project was not designed to be within the predominant line of existing development ( PLOED). The City Council established a predominant line of existing bluff face development for the site ( PLOED) at elevation 50.7 feet North American Vertical Datum of 1988 (NAVD88) and referred a revised project to the Planning Commission for further review. The applicant revised the project based upon the City Council's guidance and after consideration by the Planning Commission in June of 2008.. The City Council considered 'the revised project on July 22, 2008. The City Council expressed several concerns including the visual impact of the project, impacts to marine resources, short- term construction impacts and parking. Because of these concerns, an Environmental Impact Report was prepared. The Draft Environmental Impact Report (DEIR), responses to comments (Attachment 2) and related documents along with the revised project were reviewed by the Planning Commission at its. May 21, 2009, and June 4, 2009, meetings. The Planning Commission adopted Resolution No. 1787 recommending certification of the DEIR, adoption of a statement of overriding circumstances and project approval (Attachment 5). APPLICATION SUMMARY The project involves the demolition of an existing 14 -unit apartment building and a single family dwelling and the construction of a new, 8 -unit residential condominium building consisting of 6 levels and approximately 61,709 gross square feet of building area. New development on the bluff face is proposed to be at elevation 52.83 NAVD 88, which is above the PLOED established by the City Council, except for a dock/emergency exit at elevation 44.48 NAVD 88 that will be screened from public view. Additionally, the applicant seeks approval to replace an existing floating dock structure with a larger dock structure to berth up to 8 boats permanently and including one guest side tie. The applicant is also proposing to enlarge an existing catch basin and underground a utility line, both located in Carnation Avenue. A more detailed description is provided in the DEIR and Planning Commission Staff Report dated May 21, 2009. AERIE (PA2005 -196) July 14, 2009, Page 3 AERIE (PA2005 -196) July 14, 2009, Page 4 The following discretionary approvals are requested or required in order to implement the project as designed: General Plan Amendment (GP2005 -006) The proposed amendment of the General Plan would change the land use designation of the 584- square -foot portion of the parcel located at 101 Bayside Place from RT (Two - Unit Residential) to RM (Multiple -Unit Residential, 20 dwelling units per acre) in the Land Use Element of the General Plan. Coastal Land Use Plan Amendment (LC2005 -002) The proposed amendment of the Coastal Land Use Plan (CLUP) would change the land use designation of the same 584 - square -foot portion of the parcel at 101 Bayside Place from RH -D (High Density Residential = 50.1 to 60 dwelling units per acre) to RM -A (Medium Density Residential — 6.1 to 10 dwelling units per acre). Code Amendment (CA2005 -009) The proposed. amendment of the Zoning District Map would change the zoning classification. of the 584 - square -foot portion of the parcel located at 101 Bayside Place from R -2: Two =Unit: Residential) to MFR (Multi -unit Residential, 2,178 square feet per unit): Tentative Tract'Mao (NT2005- 004/TT16882) The. proposed: tentative tract map will combine the 584- square -foot portion of the parcel located at 101: Bayside Place. with parcels identified as 201 — 205 Carnation Avenue and 207 Carnation Avenue, and to subdivide the air space for eight (8) residential condominium units in accordance with the final project plans. Modification Permit (MD2005 -087) The proposed modification permit would allow: (1) below grade building encroachments within the 10 -foot front yard setback along Carnation Avenue; (2) 42 -inch high protective guard rails within the required 10 -foot front setback along Carnation Avenue where they are restricted to 36 inches; (3) above and below grade building encroachments within the required 10 -foot, 7 -inch side yard setback abutting 215 Carnation Avenue; and (4) balcony and guardrail encroachments within the 10 -foot, 7 -inch side yard setback abutting Bayside Place. Coastal Residential Development Permit (CR2005 -002) The proposed coastal residential development permit would allow demolition of the existing dwelling units within the Coastal Zone pursuant to Chapter 20.86 of the Newport Beach Municipal Code. AERIE (PA2005 -196) July 14, 2009, Page 5 Environmental Impact Report (ER2008 -002) An Environmental Impact Report (SCH #2007021054) has been prepared in accordance with the California Environmental Quality Act. DISCUSSION Based upon the discussion contained within the DEIR and staff reports, the Planning Commission concluded that the project is consistent with the General Plan and Coastal Land Use Plan. Additionally, the Planning Commission concluded that the required findings for approval of the Tentative Tract Map, Modification Permit and Coastal Residential Development Permit are supported by the administrative record. A more detailed discussion of these applications is provided in the Planning Commission staff Report dated May 21, 2009 (Attachment 6). Harbor Commission The Harbor Commission reviewed the proposed docks on April 8, 2009. The Commission was of the opinion that the proposed docks would intrude into the main channel and that high wave energy experienced in this area presents a safety concern. The Harbor Commission acts in an advisory role and the Harbor Resources Manager is the local permitting authority. The safety concern is addressed by sound engineering AERIE (PA2005 -196) July 14, 2009, Page 6 and construction while relocating boats to a more secluded area when wave conditions could damage berthed vessels, which is a common operational solution for this part of the harbor. Subsequent to the Harbor Commission meeting on April 8th, the Commission established a three Commissioner subcommittee to further evaluate the proposed docks. Chairman Duffield and Commissioners Lawrenz and Corrough visited the site and dropped 3 buoys representing the boats that would be berthed at the proposed docks. The Commissioners have reported back to the Harbor Commission their new opinion that the proposed docks would not present any impediment to safe navigation. The full Harbor Commission is reconsidering their recommendation on July 8, 2009. Staff will provide a supplemental report or an oral report to the City Council based upon the Harbor Commission's action. Charter Section 423 Charter Section 423 requires that major General Plan Amendments be voted upon by the electorate. A major General Plan Amendment is one that increases the General Plan by 40,000 square feet of non- residential floor area or increases traffic by more than 100 peak hour vehicle trips or increases residential dwelling units by 100 units. Additionally, a General. Plan amendment that is below these Charter Section 423 thresholds would require a require a vote if the increases in floor area, peak hour trips or residential units of. the project, when added to 80% of the increases of prior amendments approved within the past 10 years, exceed the Charter Section 423 thresholds cited: above. Pursuant to Council Policy A -18, voter approval is not required in this case as the proposed General Plan Amendment represents an increase of 1 ,dwelling unit and an increase of 1 A.M. and 1 P.M. peak hour trip based upon the change in land use designation for the 584 square foot portion of the project site. Additionally, no prior amendments have been approved within Statistical Area F3 and, therefore, the project and prior amendments do not cumulatively exceed Charter Section 423 thresholds as to require a vote of the electorate. The increases associated with this General Plan Amendment will be tracked in accordance with Charter Section 423 and Council Policy A -18 for 10 years if approved by the City Council. Draft Environmental Impact Report The DEIR includes analysis of the issues raised at the July 2008 City Council meeting. Among these issues are impacts to public views and construction - related noise. The DEIR evaluates a reasonable range of alternatives to the project that are designed to lessen significant impacts. The DEIR identifies short-term, construction - related noise as the only significant and unavoidable impact due to the intensity of noise generated by construction equipment, proximity to residential uses and duration of noise. All other project impacts are considered less than significant or no impact and in some cases, mitigation measures are identified. The overall construction phase is anticipated to be 32 months, with the highest noise levels occurring during excavation and construction of the foundations. AERIE (PA2005 -196) July 14, 2009, Page 7 The DEIR includes visual simulations showing the project, including the proposed docks, from various vantage points (the abutting streets, Begonia Park, harbor beaches and from boats). The simulations show that public views from Ocean Boulevard and Carnation Avenue will be improved compared to current conditions due to increased side yard setbacks. The simulations of the view from Begonia Park show that even though the proposed residential structure is more visible than existing structures due to its larger size and its projection farther from Carnation Avenue, the overall quality of.the public views from Begonia Park will not be significantly impacted. The simulated public views from the harbor to the site show that the qualities of the view will change. This is principally due to the elimination of existing structures, considered by some people to be unattractive. The proposed building will occupy more of the upper portion of the bluff than existing development but it will "line up" with the homes along Carnation Avenue to the north. The bluff face below the proposed building will be restored by removing invasive plants, drainage devices, and concrete. The existing bluff access stair will be repaired and refurbished and lastly, the bluff face will be re- planted with native plants appropriate for that environment. The expanded docks with boats create a transitory impediment to viewing the project bluff and rocks depending upon the viewer's location. The closer to the site the viewer is, the more prominent the boats in the docks would be. However, views of the bluff, rocks and cove will remain as one "cruises' in and out of the harbor given that .these features below the proposed residential building are not being.: physically., altered or covered. Physical access to the rocks and cove from the Water will not be impacted with; project implementation. As noted previously, the DEIR identified a reasonable range of alternatives that would attain most:of the basic project objectives while avoiding or lessening significant impacts of,'the .project. The mandatory No Project/No Development and Alternative Site alternatives. were also included: Given the goal to reduce construction noise and, the fact that the only variable in the noise impact assessment that can be readily adjusted is construction duration, staff focused on reducing the extent of excavation to reduce construction duration while keeping in mind the applicant's basic project objectives. The following alternatives were considered feasible and were evaluated in the DEIR: • Reduced Intensity - development of 3 single - family dwellings • Reduced Intensity - development of 5 -unit, multi- family residential project • Development of an 8 -unit, multi - family residential project with reduced excavation The Reduced Intensity (3 single - family) Alternative analysis assumed development of the site with three custom, residential homes consistent with the General Plan and Zoning designations. It:assumed that excavation on the bluff face would be no lower than the PLOED as established by the City Council. The applicant indicated that this alternative would not include the enlargement of the existing catch basin. or the undergrounding of the Utility line in Carnation Avenue. Although this alternative might have some environmental benefits when compared to the project (reduced construction- related impacts), the overall construction duration would likely be far longer as the three custom homes could take as long as 24 months each to construct and would not likely be constructed at the same time. This alternative does not accomplish many of the applicant's basic project objectives. AERIE (PA2005 -196) July 14, 2009, Page 8 The Reduced Intensity (5 -unit, multi - family) Alternative analysis assumes development of the site in the same fashion as the proposed project and it would appear much the same as the proposed project from outward appearances. This alternative assumed excavation of the bluff face would be no lower than the PLOED as established by the City Council. The principal difference is the elimination of both the Sub - basement and Basement levels, which avoids 25 additional caissons, reducing 12,240 cubic yards of export and approximately 1,150 heavy truck trips when compared to the proposed project. Like the previous alternative, the applicant would.not enlarge the catch basin or underground the utility line in Carnation Avenue. Due to the elimination of these lowest two levels, area devoted to parking for three units and many of the amenities deemed necessary by the applicant (a project objective) could not be accommodated. As a result of the loss of parking, this alternative would reduce the number of units from 8 units to 5 units. Short- term construction noise and less than significant impacts associated with grading (air quality and construction traffic) would be reduced when compared to the proposed project. The overall construction duration for this alternative is estimated to be 23 months, a 9- month reduction compared to the proposed project. The DEIR incorrectly indicates that the view corridors would be expanded. Both view corridors would be the same as that provided by the project. The 8- unit,. multifamily residential alternative with reduced excavation was evaluated in two separate configurations identified in the DEIR as Alternatives A and B. Both of these alternative:configurations eliminate the Sub- basement level (lowest level) and a portion of the Sub- basement1evel. Alternative A provides a larger Basement level to maintain more building area for.common amenities, storage and mechanical spaces than Alternative B. Sufficient area `for .the parking for 8 units could be accommodated in both alternative configurations: The. applicant would provide the enlarged catch basin and underground the utility line in Carnation Avenue with Alternative A, but would not provide these benefits with Alternative B. The overall construction duration for Alternative A is estimated to be 27 months (5 -month reduction from that of the proposed project) and the overall construction duration for Alternative B is estimated to be 26 months (6 month reduction from that of the proposed project). Significant short-term construction noise and other less than significant impacts associated with grading (air quality and construction traffic) would be reduced; however, the short-term noise impact would remain significant and unavoidable with either alternative. Alternative B results in a lesser noise impact than Alternative A. Alternative A and B partially meet all of the applicant's project objectives to differing degrees (Alternative A more than B). The Planning Commission focused on Alternative A, but ultimately concluded that project benefits outweighed short-term impacts. The June 4, 2009, Planning Commission staff report (Attachment 7) provides a more detailed comparison table between the proposed project and Alternative A. The upgrade of the catch basin and the undergrounding of utilities were cited. Greater amenities accommodated through inclusion of the Sub- basement and Basement levels were determined to be important to the success of the project and Commissioners agreed that this outweighed the reductions in impacts that would accompany the alternatives. This is the basis for the statement of overriding considerations contained in Attachment 3 that must be adopted to approve the proposed project. AERIE (PA2005 -196) July 14, 2009, Page 9 PUBLIC NOTICE A hearing notice indicating the subject, time, place and location of this hearing was provided in accordance with the Municipal Code. Notice was published in the Daily Pilot, mailed to property owners within 300 feet of the property and the site was posted a minimum of 10 days in advance of this hearing. Notice of the hearing is also provided with the agenda for the meeting, which was posted in accordance with applicable law and appears on the City's website. SUMMARY The Planning Commission and staff recommend project approval subject to findings and conditions of approval. The project is consistent with the General Plan, Coastal Land Use Plan and applicable provisions of the Zoning Code. Public views are being protected with some being enhanced. Alteration of the bluff face is minimized and visually, it will be enhanced. As noted previously, the attached draft resolutions and ordinance contain facts supporting the necessary findings for certifying the Final Environmental Impact Report and various applications. Should the City Council believe that any of the findings are not supported, a change to the project may be necessary. ALTERNATIVE ACTIONS The City Council can consider several alternative actions: 1. Direct that the project be modified and returned for subsequent City Council consideration. 2. Approve one of the Alternatives considered in the DEIR. 3. Deny the project based upon its impacts to the environment or finding that it is not consistent with applicable General Plan or Coastal Land Use Plan policy. Should the City Council choose one of these alternative actions, staff suggests a continuance to revise the resolutions to reflect the City Council's direction unless the change is minor and can be accomplished with a simple change to the conditions of approval. Prepared by: TW C0-- -y James Campbell, Principal Planner Submitted by: p-rD-avid-LepZ, Director Planning AERIE (PA2005 -196) July 14, 2009, Page 10 ATTACHMENTS 1. Draft resolution certifying the Final Environmental Impact Report a. Draft EIR (Separate Bound Volume) 2. Responses to Comments 3. Draft resolution adopting a Statement of Overriding Considerations and approving the proposed project 4. Draft ordinance amending the Zoning District Map 5. Planning Commission Resolution No. 1787 recommending approval 6. Planning Commission record from May 21, 2009 a. Staff report b. Late correspondence c. Excerpt of meeting minutes 7. Planning Commission record from June 4, 2009 a. Staff report b. Late correspondence c. Excerpt of meeting minutes 8. Applicant's City Council Briefing Booklet 9. Correspondence 10. Project Plans Attachment #4 Draft ordinance amending the Zoning District Map y.l THIS PAGE LEFT BLANK INTENTIONALLY Intentionally Blank y,2 ORDINANCE NO.2009- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING ZONING CODE AMENDMENT NO. CA2005 -009 FOR PROPERTY LOCATED AT 201 -205, 207 CARNATION AVENUE 101 BAYSIDE PLACE (PA 2005 -196) WHEREAS, an application was filed by Advanced Real Estate Services, Inc. with respect to property located at 201 -205, 207 Carnation Avenue, and 101 Bayside Place to construct an 8 -unit residential condominium development on a 1.4 acre site. The applications filed are: General Plan Amendment No. GP2005 -006, Coastal Land Use Plan Amendment No. LC2005 -002, Code Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM16882), Modification Permit No. MD2005 -087 and Coastal Residential Development Permit No. CR2005 -002; and WHEREAS, on February 22, 2007, April 5, 2007, and May 17, 2007, the Planning Commission held noticed public hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, project and a draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered.by the Planning Commission at the hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1723 recommending adoption of a draft Mitigated Negative Declaration (MND) and approval of the applications to the City Council; and WHEREAS, on August 14, 2007, the City Council held a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, project and a draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the City Council at the hearing. At the conclusion of the public hearing the City Council identified the predominant line of existing development ( PLOED) at 50.7 feet North American Vertical Datum of 1988 (NAVD88) after considering the position of existing development on the bluff face in relation to Carnation Avenue and its elevation above Newport Bay. Since the proposed project was not consistent with the PLOED as required by the policies of the 2005 Coastal Land Use Plan, further consideration of the proposed project was postponed until such time that the project was revised to conform to the PLOED: and WHEREAS, subsequent to the August 14, 2007, City Council hearing, the applicant revised the proposed project in accordance with the PLOED as established by the City Council. Additionally, the applicant further revised the project to include a proposed dock structure. A revised Mitigated Negative Declaration was prepared in accordance with the California Environmental Quality Act; and WHEREAS, on February 21, 2008, the Planning Commission held noticed public hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, U.3 Ordinance No. Page 2 of 5 California, at which time the applications, the revised project and a revised draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1751 recommending adoption of a revised draft Mitigated Negative Declaration (MND) for the revised project and approval of the applications to the City Council; and WHEREAS, on June 19, 2008, the Planning Commission held noticed public hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, the revised project and a revised draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1761 recommended adoption of a draft Mitigated Negative Declaration (MND) for the revised project and approval of the applications to the City Council; and WHEREAS, on July 8, 2008, the City Council held a noticed public hearing in the City Hall. Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time %the..applications, revised project and a revised draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the City.: Council.at the hearing. The City Council expressed several concerns including the project's potential visual impact on the area and the City Council took no action; and WHEREAS, subsequent to the City Council hearing on July 8, 2008, the City and the applicant mutually agreed that an Environmental Impact Report would be prepared for the project pursuant to the California Environmental Quality Act; and WHEREAS, a draft Environmental Impact Report (SCH #2007021054) has been prepared pursuant to the Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. The DEIR was circulated for a 45 -day comment period beginning on March 20, 2009, and concluding on May 4, 2009. Comments and responses to the comments were considered by the Planning Commission in its review of the proposed project; and WHEREAS, on May 21, 2009, and June 4, 2009, the Planning Commission held a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, project and a draft Environmental Impact Report (SCH #2007021054) were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing; and U.9 Ordinance No. Page 3 of 5 WHEREAS, pursuant to Section 20.94 of the Newport Beach Municipal Code, the City Council held a noticed public hearing on July 14, 2009, to consider the recommendation of the Planning Commission; and WHEREAS, the City Council reviewed the Environmental Impact Report (SCH #2007021054) and all comments related to it, and based on the administrative record, the City Council made findings to certify Environmental Impact Report pursuant to applicable laws prior to approving the project, including Code Amendment No. CA2005 -009. The findings to certify the Environmental Impact Report are contained within City Council Resolution No. are incorporated herein by reference; and WHEREAS, the City Council approved the proposed project including General Plan Amendment No. GP2005 -006 and Coastal Land Use Plan Amendment No. LC2005 -002 by adopting Resolution No. and the findings to support this approval are incorporated herein by reference; and WHEREAS, Code Amendment No. CA2005 -009 is necessary to provide a zoning designation for a portion of the property in question that is consistent with the land use designation of the General Plan and Coastal Land Use Plan as modified by General Plan Amendment No. GP2005 -006 and Coastal Land Use Plan Amendment No. LC2005 -002; and WHEREAS, 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. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: A revision to Zoning Map depicted in Exhibit "A" is. hereby approved; however, the change shall not become effective until Coastal Land Use Plan Amendment No. LC2005 -002 is approved by the California Coastal Commission. SECTION 2. To the fullest extent permitted by law, applicant and property owner shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of this Project including, but not limited to, the approval of the General Plan Amendment Ordinance No. Page 4 of 5 No. GP2005 -006, Coastal Land Use Plan Amendment No. LC2005 -002, Code Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM 16882), Modification Permit No. MD2005 -087 and Coastal Residential Development Permit No. CR2005 -002 and /or the City's related California Environmental Quality Act determinations, the certification of the Environmental Impact Report, the adoption of a Mitigation Program, and /or statement of overriding considerations for this Project. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by the applicant or property owner, City, and/or the parties initiating or bringing such proceeding. The applicant and property owner shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on , and adopted on the day of 2009, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR APPROVED AS TO FORM: OFFICE of the CITY ATTORNEY ATTEST: CITY CLERK u,6 Ordinance No, Page 5 of 5 Exhibit "A" AERIE Condominiums (PA 2005 -196) 201 -205, 207 Carnation Ave. & 101 Bayside PI Code Amendment No. CA2005 -009 U,?