P1. Other Identifier: N/A
*P2. Location: Z Unrestricted
*a. County Orange and
*b. USGS 7.5' Quad Newport Beach, Calif. Date 1965
c. Address: 475 32nd Street City: Newport Beach
d. UTM: Zone 11 S, 413872mE/ 3719999mN
e. Other Locational Data: APN 670-15-018
Primary #
HRI #
Trinomial
NRHP Status Code
Reviewer Date
*Resource Name or #: Newport Beach Fire Department Station No. 2 T 6S; R 1 OW; Sec. 28; San Bernardino Base Meridian S.B.B.M Zip:92663
*P3a. Description:
The Newport Beach Fire Department (NBFD) Station No. 2 is located at 475 32nd Street in Newport Beach, California (Photograph 1). The property is situated on the north side of 32nd Street between Via Oporto to the east and the former site of Newport Beach City Hall to the west, which is presently occupied by the Lido House Hotel (see Sketch Map). Constructed in 1953 for the NBFD, this International -style fire station building features an irregular footprint set on a concrete foundation. The station is topped by a multi -plane flat roof that corresponds to the various single- and two-story sections of the facility. Metal coping is installed at the roofline. The exterior siding consists primarily of smooth white stucco. Narrow bricks laid in a running bond pattern form a decorative apron on the south fagade and clad portions of the ground level along the east, west, and north sides of the building. Fenestration throughout includes flush, aluminum -sash windows that appear to be modern replacements for similarly sized metal -sash windows installed in the same general arrangement (see Continuation Sheets). *P3b. Resource Attributes: HP14. Government Building
P5b. Description of Photo:
Photograph 1: South fagade of
Fire Station No. 2 viewed from
32nd Street. Camera facing
north, October 14, 2021.
P6. Date Constructed/Age
and Source:
Z Historic
1953 (City of Newport Beach
1953)
*P7. Owner and Address:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
*P8. Recorded by:
Michelle Van Meter
Michael Baker International
2729 Prospect Park Drive, #220
Rancho Cordova, CA 95670
*P9. Date Recorded: October 14, 2021
*P10. Survey Type: Intensive Pedestrian
*P11. Report Citation:
Van Meter, Michelle and Kholood Abdo. 2021. "Cultural Resources Technical Memorandum for the Lido House Hotel EIR Addendum Project, City of Newport Beach Community Development Department, Newport Beach, California." Rancho Cordova, CA: Michael Baker International.
*Attachments: ZBuilding, Structure, and Object Record ZLocation Map ❑xContinuation Sheet DPR 523A (9/2013) *Required information
State of California - The Resources Agency Primary #
DEPARTMENT OF PARKS AND RECREATION HRI#
BUILDING, STRUCTURE, AND OBJECT RECORD
*NRHP Status Code 6Z
*Resource Name or # Newport Beach Fire Department Station No. 2 B1. Historic Name: Newport Beach Fire Department Station No. 2 B2. Common Name: Lido Fire Station
B3. Original Use: Fire Station B4. Present Use: Fire Station *135. Architectural Style: International
*66. Construction History:
Don Fletcher constructed Fire Station No. 2 for the NBFD in 1953 (Los Angeles Times 1952a, 1952b; City of Newport Beach 1953). The NBFD hired Hughes & Vandervort to construct a second -story addition in 1966 (City of Newport Beach 1966). An additional 832 square feet were added to the second story in 1994 (City of Newport Beach 1994; NETR 1995). The two primary engine bays on the south fagade were merged and one bay was enclosed at an undetermined date. Likewise, most windows and exterior doors appear to be modern replacements for original units that occupied the same locations.
*137. Moved? ©No Date: N/A Original Location: N/A
*138. Related Features: N/A
139a. Architect: Unknown b. Builder: Don Fletcher
*1310. Significance: Theme: Fire Protection; Architecture Area: Newport Beach, California Period of Significance: 1957 Property Type: Fire Station Applicable Criteria: N/A Growth and Development of the City of Newport Beach
Newport Beach —like many cities across the state —experienced a period of unprecedented population growth during and following World War II as a result of wartime construction industries, expansion of regional transportation networks, and abundance of local recreation amenities. By the latter decades of the twentieth century, service, retail, and professional industries supplanted fishing and shipping as the region's economic base (USGS 1949, 1951, 1965; Novak 2008; AEI Consultants 2013).
Newport Beach Fire Department
On the heels of a disastrous fire that damaged the City Council Chambers in 1910, the Newport Beach City Trustees passed Ordinance No. 65 on April 17, 1911, establishing a volunteer fire department to protect the burgeoning coastal community. The volunteer NBFD purchased its first motorized fire trucks from the Long Beach Fire Department in 1916. The City formalized the NBFD under Ordinance No. 315 as a paid fire suppression force in March 1927. The NBFD opened Fire Station No. 1 that year and the first iteration of Fire Station No. 2 was built at 2871 West Central Avenue in 1931. Chief Frank Crocker chose Walt Honeycutt to serve as the first Captain of Engine No. 2 and its crew (Lopez 2003; Novak 2008) (see Continuation Sheets).
1311. Additional Resource Attributes: N/A
*1312. References: (See Continuation Sheet)
B13. Remarks: N/A
*1314. Evaluator:
Michelle Van Meter, Architectural Historian
Michael Baker International
2729 Prospect Park Drive, #220
Rancho Cordova, CA 95670
*Date of Evaluation: November 9, 2021
(This space reserved for official comments.)
(Sketch Map with north arrow required.)
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DPR 523B (9/2013) *Required information
State of California - The Resources Agency Primary #
DEPARTMENT OF PARKS AND RECREATION HRI#
LOCATION MAP Trinomial
*Map Name: Newport Beach and Newport Beach OES, Calif.
*Resource Name or # Newport Beach Fire Department Station No. 2 *Scale: 1:24,000 *Date of map: 1965, 1982 ed.
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DPR 523J (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ® Continuation P3a. Description (continued):
Fire Station No. 2 is set back from the street front and is accessed from a wide concrete driveway (Photograph 1). The driveway terminates at a garage door on the east half of the fagade. The articulated, roll -up metal door spans the length of two merged engine bays. Historical photographs indicate that a third engine bay was formerly located adjacent to the west side of the extant opening (see Figure 2) (Newport Beach Fire Department Archives n.d.). The primary personnel entrance is positioned on the west half of the fagade beneath a flat roof overhang (Photograph 2). The modern aluminum -frame glass door is flanked on both sides by narrow bands of ribbon windows with sliding aluminum sashes separated by wide mullions. Another band of ribbon windows parallels the roofline near the center of the building face. A single aluminum -sash sliding window punctuates the center of the second -story addition. The modern sliding windows on the fagade were installed to replace original fixed -sash windows at an undetermined date.
The east side of Fire Station No. 2 is fenestrated by bands of aluminum -sash hopper windows that demarcate the division between the first story and the second -story addition (Photograph 3 and Photograph 4). Brick pilasters are placed between each of the window bands. The west side of building was not clearly visible from the public right-of-way, but appears to be mostly unomamented (Photograph 5). Both the east and west sides of the building feature rooftop porches with wood pergolas.
The rear, north side of Fire Station No. 2 faces a paved staging area. This side of the building includes additional employee entrances and an engine bay with a metal roll -up door (Photograph 6). A fire hose tower occupies the center of the north elevation and extends several feet above the second -story roofline.
*B10. Significance (continued):
Fire Station No. 2
As Newport Beach expanded and its population increased through the mid -twentieth century, the NBFD developed new stations and relocated existing stations to maintain public safety and meet demand (Lopez 2003; Novak 2008). By the early 1950s, the NBFD had outgrown the original Fire Station No. 2 on West Central Avenue. In 1952, the City approved the construction of a new station to accommodate additional fire personnel and larger, updated firefighting vehicles and equipment. The new facility, which replaced the original Fire Station No, 2 upon its completion in 1953, was erected at 475 32nd Street (Figure 1) (Los Angeles Times 1952a, 1952b; City of Newport Beach 1953; NETR 1953, 1963). The NBFD selected this site for its proximity to City Hall and other City services. As such, it served as the NBFD's new central headquarters. The station initially housed six full-time firefighters and was equipped with an office for Chief Rufus Janvier "Jan" Briscoe, a dispatch center, garage space for up to four fire engines, a repair shop, and a fire hose tower (Los Angeles Times 1952; Novak 2008). Chief Briscoe, who joined the NBFD in 1927 and was appointed chief in 1952, spearheaded the department's acquisition of a modernized radio system to improve communication between its growing number of bases. Jack Reimer and Hugh McMillan operated the radio dispatch center Fire Station No. 2 during its early years of operation. The Fire Station No. 2 expanded over time, notably in 1966 and 1994 with the construction of additional administrative offices on the second floor (Figure 2) (City of Newport Beach 1966, 1994; NETR 1972).
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DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ®Continuation Figure 2: Undated photograph of Fire Station No. 2 showing appearance and fenestration arrangement subsequent to the construction of the first second -story addition in 1966 (Newport Beach Fire Department Archives n.d.).
Architect/Builder
The City of Newport Beach began accepting bids to construct the firehouse in November 1952 and selected contractor Don Fletcher of Santa Ana the following month (Figure 3 and Figure 4) (Los Angeles Times 1952a, 1952b; City of Newport Beach 1953). Local news sources dating to the 1950s indicate that Fletcher frequently worked on building projects for municipalities and other government agencies in Los Angeles County and Orange County (Los Angeles Times 1955a, 1955b, 1958a, 1958b, 1959). The City hired contractors Hughes & Vandervort to construct the first second -story addition in 1966 (City of Newport Beach 1966).
Fire House
Bids Ordered
NEWPORT BEACH, Nov. It.
City Clerk C. EL Pri"t today was
authorized to advertise for bids
to be opened Dec. 8 fnr s new
lire department headquarters
at 4Ta 32nd St_, adjacent to the
Newport police station.
. City Council approval 101-
Inwed recommendations of Fire
(-Nef Jan Briscoe that a build-
tng he provided to hold four
llretruck=, car iqhop, store room.
watch othce, public office. chief s
office, fire prevention bureau,
and hope r1rill tower.
Figure 3: Notice in the Los Angeles Times announcing the request for bids to construct the fire station at 475 32nd Street (Los Angeles Times 1952a).
DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ®Continuation Figure 4: Notice in the Los Angeles Times announcing the selection of Don Fletcher to build the fire station at 475 32nd Street (Los Angeles Times 1952b).
International Style
�.ontrict Let
NEWPORT IBEACH. Dec. 2.3---
"he City council today awarded
)on Fletcher of Santa Ana a
19,426 contract to construct a
,vo-stary fire station at 475 end
-t., adjacent to the City Hall.
Fire Station No. 2 was designed in the International style, which emerged in western Europe and subsequently became popular in the United States between the 1920s and the 1950s. The term "International" conveys this functional, minimalist style's lack of regionally identifiable architectural features (Ching 1995). Inspired by the highly geometric works of architects Le Corbusier, Walter Gropius, and Mies van der Rohe, the style is characterized by a simplification of form and rejection of ornament. During the mid -twentieth century, it became a dominant style for commercial and institutional buildings, and to a lesser extent for residential buildings. Identifying elements of the style include flat roofs, usually without coping; asymmetrical fagades; expanses of smooth, windowless, unadorned wall surfaces; cantilevers; curtain walls; and often white stucco wall cladding. Windows —typically metal -sash —are commonly arranged into large groupings or ribbon bands (McAlester 2013; Pennsylvania Historical & Museum Commission 2015).
DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ® Continuation California Register of Historical Resources Evaluation
The following includes an evaluation of Fire Station No. 2 in Newport Beach for its eligibility to the California Register of Historical Resources (California Register) (OUP 2001). This property has not previously been evaluated for the California Register (OHP 2021). It has been evaluated herein in accordance with Section 15064.5(a)(2)-(3) of the California Environmental Quality Act (CEQA) Guidelines, using the criteria outlined in Section 5024.1 of the California Public Resources Code.
California Register Criterion I — Research did not demonstrate that this property is associated with events significant to the broad patterns of our history at the local, state, or national level. This property was not the first station established by the NBFD, nor was it the first fire station in its community. The NBFD was established on a volunteer basis in 1911. The subject Fire Station No. 2 was preceded by several other stations, including the original Fire Station No. 2 which went into service in 1931. Fire Station No. 2 was constructed in 1953 at a time when the NBFD was expanding its ranks and adopting new, larger firefighting technology and equipment. No demonstrably significant events are known to have occurred at the property or as a result of its presence in the community. Therefore, the property is recommended not eligible for listing in the California Register under Criterion 1.
California Register Criterion 2 — Research failed to indicate that this property is associated with the lives of persons who significantly contributed to the local, state, or national culture and history. Despite his notably long tenure —first as a volunteer during the late 1920s, then as a paid firefighter, and ultimately as chief of the NBFD from 1952 until his retirement in 1972—historical records reviewed suggest that Jan Briscoe implemented departmental changes and carried out leadership responsibilities that would have been typical of other fire officials during this period. There is no demonstrable evidence that any other personnel stationed at Fire Station No. 2 made significant contributions within the broader context of the growth and development of Newport Beach during the twentieth century or the history of the NBFD. Therefore, this property is recommended not eligible under California Register Criterion 2.
California Register Criterion 3 — Fire Station No. 2, constructed in 1953, incorporates elements of the International style, which was popularized in the United States after first appearing in Europe during the 1920s. Fire Station No. 2 is a relatively modest example built at a time when the International style had been widely adopted as one of the preferred architectural modes for institutional buildings. Neither its design nor the materials used in its construction possess high artistic value. In addition, the building has been altered, notably with the construction of two second -story additions and the wholesale replacement of the exterior fenestration. The architect of the subject property was not identified during research and relevant materials reviewed did not suggest that builder Don Fletcher was a master in his field.
Therefore, this property is recommended not eligible for the California Register under Criterion 3.
California Register Criterion 4 — This property is not likely to yield valuable information that will contribute to our understanding of human history because it is not and never was the principal source of important information pertaining to subjects such as fire protection facilities or International -style architecture. Therefore, this property is recommended not eligible for listing in the California Register under Criterion
4. Integrity — In addition to lacking historic significance, Fire Station No. 2 has lost integrity to the period of its initial construction. The property retains integrity of its location and setting on 32nd Street on the Balboa Peninsula of Newport Beach. The property also retains integrity of association, as it has remained in use as an NBFD fire station throughout its history. However, its integrity of design, materials, workmanship, and feeling have diminished through substantial alterations. Large second -story additions were constructed in 1966 and 1994.Other changes include the reconfiguration of the street -facing vehicle entrances and replacement of exterior fenestration.
Conclusion — Lacking both historic significance and integrity, Fire Station No. 2 is recommended not eligible for listing in the California Register. As such, the building is not a historical resource as defined by CEQA Section 15064.5(a).
DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
* Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ®Continuation P5a. Photographs (continued):
Photograph 2: Detail view of the main personnel entrance south fagade of Fire Station No. 2. Note the brick cladding on the ground -level exterior. Camera facing north, October 14, 2021.
Photograph 3: East side of Fire Station No. 2 paralleling Via Oporto. Camera facing northwest, October 14, 2021.
DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ®Continuation Photograph 4: Detail view of metal -sash hopper windows on the east side of Fire Station No. 2. Camera facing northwest, October 14, 2021.
Photograph 5: Southwest corner of Fire Station No. 2, showing a portion of the west side.
Camera facing northeast, October 14, 2021.
DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ® Continuation Photograph 6: Rear, north side of Fire Station No. 2. Camera facing southwest, October 14, 2021.
*B12. References (continued):
AEI Consultants. 2013. "Phase I Environment Site Assessment: 3300 Newport Boulevard & 475 32"d Street, Newport Beach, Orange County, California, 92663." AEI Project No. 324487. Prepared for R.D. Olson Development.
Ching, Francis D.K. 1995. A Visual Dictionary of Architecture. New York, NY: Van Nostrand Reinhold.
City of Newport Beach. 1953. Building Division. Building Permit No. 14092. 1966. Building Division. Building Permit No. 54797.
1994. Building Division. Building Permit No. B9400101.
Lopez, Virginia E. 2003. "Firefighters have long history of protecting Newport Beach." Daily Pilot. November 9, 2003. htips:// www.latimes.com/socal/daily_pilot/news/tn-dpt-Um-2003-11-09-enortl8104-story.html . 1952b. "Contract Let." December 12, 1952, Part I, 13. Newspapers.com. 1955a. "Water Office Slated." August 21, 1955, Part V, 11. Newspapers.com. 1955b. "Water District to Build Office." September 18, 1955, Part VI, 7. Newspapers.com. 1958a. "Anaheim to Build New Utilities Office." June 22, 1958, Part VI, 18. Newspapers.com. 1958b. "New Civic Building." August 3, 1958, Part VI, 17. Newspapers.com. 1959. "Forest Unit Complete." August 2, 1959, Part VI, 6. Newspapers.com.
McAlester, Virginia Savage. 2013. A Field Guide to American Houses: The Definitive Guide to Identifying and Understanding America's Domestic Architecture. New York, NY: Alfred A. Knopf NETR (National Environmental Title Research, LLC).1953. "Newport Beach, California." [Aerial Photograph]. Electronic resource, DPR 523L (9/2013)
State of California - The Resources Agency Primary#
DEPARTMENT OF PARKS AND RECREATION HRI #
CONTINUATION SHEET Trinomial
*Recorded by: Michelle Van Meter, Michael Baker International *Date: October 14, 2021 ®Continuation b—qs:// www.historicaerials.com/ , accessed November 2021. .1963. "Newport Beach, California." [Aerial Photograph]. Electronic resource, hqs:// www.historicaerials.com/1 accessed November 2021.
—.1972. "Newport Beach, California." [Aerial Photograph]. Electronic resource, hqs:// www.historicaerials.com/I accessed November 2021.
. 1995. "Newport Beach, California." [Aerial Photograph]. Electronic resource, hqs:// www.historicaerials.com/ , accessed November 2021.
Newport Beach Fire Department Archives. No date. Photograph of Fire Station No. 2, in Images ofAmerica: Newport Beach Fire Department, by Michael J. Novak. 2008. Charleston, SC: Arcadia Publishing.
Novak, Michael J. 2008. Images of America: Newport Beach Fire Department. Charleston, SC: Arcadia Publishing.
OHP (Office of Historic Preservation). 2001. Technical Assistance Series #7: How to Nominate a Resource to the California Register of Historical Resources. Sacramento, CA: California Department of Parks and Recreation. hM2s:Hohp_parks.ca. goy/pages/1056/files/07_TAB%207%20How%20To%20Nominate%20A%20Property%20to%20California%20 Re ig ster.pdf.
2021. Built Environment Resource Directory. Orange County, California. Sacramento, CA: California Department of Parks and Recreation. Accessed November 2021. hqs://ohp.parks.ca.gov/?yage id=30338.
Pacific Air Industries. 1954. Aerial Photograph. Flight PAI-40-02. Frame 40-60. December 22, 1954. Available at University of California, Santa Barbara, Geospatial Collection. Accessed November 2021. hqs://mil.library.ucsb.edu/M indexes/FrameFinder/.
Pennsylvania Historical & Museum Commission. 2015. Bureau of Historic Preservation. "International Style 1930-1950." hM2:// www.12hmc.state.pa.us/portal/communities/architecture/styles/intemational.httnl . Accessed November 2021.
USGS (United States Geological Survey). 1949. Newport Beach, California. 1:24000. Accessed November 2021. https://n mg db.usgsgov/topoview/viewer/#.
1951. Newport Beach, California. 1:24000. Accessed November 2021. hops://n mg db.usgsgov/topoview/viewer/#. 1965. Newport Beach, California. 1:24000. Accessed November 2021. hgps://n mg db.usgs gov/topoview/viewer/#.
DPR 523L (9/2013)
Attachment 3
Interested Parties Consultation
Letters
From:
VanMeter, Michelle
To:
bsvalstadCabamail.com
Cc:
Fike, Aisha
Subject:
Cultural Resources Consultation for the Lido House Hotel Expansion Project Date:
Tuesday, November 2, 2021 1:47:00 PM
Attachments:
2021-11-02 Newport Beach Historical Societv.odf
Good Afternoon,
Michael Baker International is conducting a cultural resources investigation for the Lido House Hotel Expansion Project in Newport Beach, California. See the attached file for a project location and description. Please notify us if your organization has any information or concerns about historic properties in the project area. This is not a request for research; it is solely a request for public input related to any concerns that the Newport Beach Historical Society may have. If you have any questions, please contact me at Michelle.VanMeter(@mbakerintl.com or Senior Architectural Historian Aisha Fike at Aisha.FikePmabkerintl.com.
Warm regards,
Michelle Van Meter I Architectural Historian I Pronouns: she/her 2729 Prospect Park Dr. Suite 220 1 Rancho Cordova, CA 95670 1 [0] 916-517-4422 1 [M] 425-327- 9427
[email protected] I www.mbakerintl.com
If
From: Microsoft Outlook
To: bsyalstad((Domail. com
Subject: Relayed: Cultural Resources Consultation for the Lido House Hotel Expansion Project Date: Tuesday, November 2, 2021 2:09:41 PM
Attachments: Cultural Resources Consultation for the Lido House Hotel Expansion Proiect.msg Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server:
[email protected] ([email protected]) mailto:[email protected] > Subject: Cultural Resources Consultation for the Lido House Hotel Expansion Project
November 2, 2021
NEWPORT BEACH HISTORICAL SOCIETY
BERNIE SVALSTAD, PRESIDENT
P.O. BOX 8814
NEWPORT BEACH, CA 92658
via email: [email protected]
RE: CONSULTATION FOR THE LIDO HOUSE HOTEL EXPANSION PROJECT, CITY OF
NEWPORT BEACH, ORANGE COUNTY, CALIFORNIA
Dear Mr. Svalstad:
Michael Baker International is conducting a cultural resources investigation for the City of Newport Beach, Community Development Department regarding the Lido House Hotel EIR Addendum No. 2 for the proposed expansion of the Lido House Hotel (project). The project site is located in the City of Newport Beach and involves a 4.25-acre site at the northeast corner of the intersection of Newport Boulevard and 32nd Street on the Balboa Peninsula in the Lido Village area of the City, as depicted on the accompanying figures (see Figure 1-Figure 3).
The project proposes to increase the site's maximum allowed gross floor area by 15,103 gross square feet from 103,470 gross square feet to 118,573 gross square feet. The additional 15,103 gross square feet would allow development of five additional cottages and expand the existing hotel building. The project would also incorporate the adjacent parcel, currently occupied by Lido Fire Station No. 2, by demolishing the fire facility to accommodate additional on -site parking.
Specifically, the proposed surface parking lot would provide 16 parking spaces and 5 additional spaces accommodated via valet stacking within drive aisles.
As a component of the cultural resources investigation, Michael Baker International is requesting input on known or potential historic properties or cultural resources in the project area. Please notify us if your organization has any information or concerns about historical resources within the project area. This is not a request for research; it is solely a request for public input related to any concerns that the Newport Beach Historical Society may have. If you have any questions, please contact me at your earliest convenience at [email protected] or (916) 517- 4422.
Sincerely,
Michelle Van Meter, M.A.
Architectural Historian
Attachments: Figure 1 — Regional Vicinity; Figure 2 — Project Vicinity; Figure 3 — Project Area
Lido House Hotel
EIR Addendum No. 2
Attachment 2
Preliminary Water Quality Management Plan
46 June 2022
FUSCOE
E N G I N E E R I N 6
PRELIMINARY
AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP)
'.ADO 14M M 1410'
REDEVELOPMENT PROJECT
Newport Beach, California
Prepared For
R.D. OLSON DEVELOPMENT
2955 Main Street, Third Floor
Irvine, California 92614
949.574.8500
Prepared By
Fuscoe Engineering, Inc.
16795 Von Karman, Suite 100
Irvine, California 92606
949.474.1960
www.fuscoe.com
Project Manager:
Mark Nero, PE
Date Prepared: February 5, 2016
Date Revised: June 2, 2016
2nd Revision: August 1, 2016
Amendment: June 14, 2021
Job Number: 1100.004.01
1 41111110'y
y J
F��
f u I I c i r c I e t h i n k i n g®
DRAFT AMENDED PRIORITY PROJECT
WATER QUALITY MANAGEMENT PLAN
(PWQMP-AMENDED)
LIDO HOUSE HOTEL
3300 Newport Boulevard
City of Newport Beach, County of Orange
PLAN CHECK NO. TBD
APN 423-1 1 1-02
Prepared for:
R.D. OLSON DEVELOPMENT
2955 Main Street, Third Floor
Irvine, California 92614
949.574.8500
Prepared by:
FUSCOE ENGINEERING, INC.
16795 Von Karman, Suite 100
Irvine, CA 92618
949.474.1960
Date Prepared: February 5, 2016
Date Revised: June 2, 2016
2nd Revision: August 1, 2016
Date Amended (draft) March 5, 2021
Date Revised Amended (draft), June 14, 2021
FINAL WATER QUALITY MANAGEMENT PLAN (WQMP)
LIDO HOUSE HOTEL
PROJECT OWNER'S CERTIFICATION
Permit/Application No.:
TBD
Grading Permit No.:
Pending
Tract/Parcel Map and
Lot(s)No.:
N/A
Building Permit No.:
Pending
Address of Project Site
3300 Newport Boulevard, Newport Beach, CA 92663
and APN:
423-1 1 1-02
This revised Amended Water Quality Management Plan (WQMP) has been prepared for R.D. OLSON DEVELOPMENT by FUSCOE ENGINEERING, INC. The WQMP is intended to comply with the requirements of the County of Orange NPDES Stormwater Program requiring the preparation of the plan.
The undersigned, while it owns the subject property, is responsible for the implementation of the provisions of this plan , including the ongoing operation and maintenance of all best management practices (BMPs), and will ensure that this plan is amended as appropriate to reflect up-to-date conditions on the site consistent with the current Orange County Drainage Area Management Plan (DAMP) and the intent of the non -point source NPDES Permit for Waste Discharge Requirements for the County of Orange, Orange County Flood Control District and the incorporated Cities of Orange County within the Santa Ana Region. Once the undersigned transfers its interest in the property, its successors - in -interest shall bear the aforementioned responsibility to implement and amend the WQMP.
An appropriate number of approved and signed copies of this document shall be available on the subject site in perpetuity.
OWNER:
Name:
Anthony Wrzosek
Title:
Vice President
Company:
R.D. Olson Development
Address:
520 Newport Center Drive, Suite 600, Newport Beach, CA 92660 Email:
[email protected]
Telephone:
949.271 .1 109
Signature:
Date:
R.D. OLSON DEVELOPMENT i OWNER'S CERTIFICATION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
TABLE OF CONTENTS
SECTION I DISCRETIONARY PERMITS AND WATER QUALITY CONDITIONS ........................... 1 SECTION II PROJECT DESCRIPTION................................................................................... 4 11.1 Project Description..................................................................................................... 4 11.2 Potential Storm Water Pollutants.................................................................................. 8 11.3 Hydrologic Conditions of Concern............................................................................... 9 11.4 Post Development Drainage Characteristics................................................................. 10 11.5 Property Ownership/Management.............................................................................. 10 SECTION III SITE DESCRIPTION..................................................................................... 12 111.1 Physical Setting........................................................................................................ 12 111.2 Site Characteristics................................................................................................... 12 111.3 Watershed Description.............................................................................................. 15 SECTION IV BEST MANAGEMENT PRACTICES(BMPs)....................................................... 17 IV.1 Project Performance Criteria...................................................................................... 17 IV.2 Site Design and Drainage Plan.................................................................................. 17 IV.2.1 Site Design BMPs............................................................................................... 18 IV.2.2 Drainage Management Areas............................................................................. 19 IV.3 LID BMP Selection and Project Conformance Analysis ................................................... 20 IV.3.1 Hydrologic Source Controls (HSCs)..................................................................... 20 IV.3.2 Infiltration BMPs................................................................................................ 21 IV.3.3 Evapotranspiration & Rainwater Harvesting BMPs.................................................. 24 IV.3.4 Biotreatment BMPs............................................................................................ 25 IV.3.5 Hydromodification Control BMPs......................................................................... 26 IV.3.6 Regional/Sub-Regional LID BMPs........................................................................26 IV.3.7 Treatment Control BMPs.................................................................................... 26 IV.3.8 Non -Structural Source Control BMPs................................................................... 28 IV.3.9 Structural Source Control BMPs........................................................................... 30 IV.4 Alternative Compliance Plan...................................................................................... 31 IV.4.1 Water Quality Credits........................................................................................ 31 IV.4.2 Alternative Compliance Plan Information.............................................................. 32 SECTION V INSPECTION/MAINTENANCE RESPONSIBILITY FOR BMPs.................................. 33 SECTION VI SITE PLAN AND DRAINAGE PLAN................................................................. 40 SECTION VII EDUCATIONAL MATERIALS......................................................................... 42 APPENDICES.................................................................................................................... 43 R.D. OLSON DEVELOPMENT ii TABLE OF CONTENTS
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
APPENDICES
Appendix ............................................................................................. Supporting Calculations Appendix B.............................................................................. Notice of Transfer of Responsibility Appendix C.................................................................................................Educational Materials Appendix D................................................................. BMP Maintenance Supplement / O&M Plan Appendix E.............................................................................................. Conditions of Approval Appendix F................................................................................................ Infiltration Test Results
EXHIBITS & BMP DETAILS (INCLUDED IN SECTION VI)
■ Vicinity Map
■ WQMP Exhibit
■ Typical Cross Sections
■ Pervious Pavement (INF-6)
■ Underground Infiltration (INF-7)
■ Pre-treatment Roof Drain Filters
EDUCATIONAL MATERIALS (INCLUDED IN APPENDIX C)
■ The Ocean Begins at Your Front Door
■ Recycle at Your Local Used Oil Collection Center (Central County) ■ Responsible Pest Control
■ Sewer Spill
■ Tips for Landscaping and Gardening
■ Tips for Pool Maintenance
■ Tips for the Food Service Industry
■ Proper Maintenance Practices for Your Business
■ DF-1 Drainage System Operation & Maintenance
■ IC-3 Building Maintenance
■ IC-7 Landscape Maintenance
■ IC-16 Pool & Fountain Cleaning
■ IC-22 Eating & Drinking Establishments
■ SC-41 Building & Grounds Maintenance
■ SC-43 Parking/Storage Area Maintenance
R.D. OLSON DEVELOPMENT iii TABLE OF CONTENTS
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
■ SD-10 Site Design & Landscape Planning
■ SD-12 Efficient Irrigation
■ SD-13 Storm Drain Signage
■ SD-32 Trash Storage Areas
R.D. OLSON DEVELOPMENT iv TABLE OF CONTENTS
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (WWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
SECTION I DISCRETIONARY PERMITS AND WATER QUALITY
CONDITIONS
PROJECT INFORMATION
Permit/Application
TBD
Tract/Parcel Map
N/A
No..
No..
Address of Project
3300 Newport Boulevard, Newport Beach, CA 92663
Site and APN:
423-1 1 1-02
WATER QUALITY CONDITIONS
Initial Coastal Development Permit No. 5-14-1785
Initial City of Newport Beach Planning Commission Resolution 1952 Initial City of Newport Beach Planning Commission Resolution 1953 Discretionary
Permit(s):
Amended Coastal Development Permit No. TBD
Amended City of Newport Beach Planning Commission Resolution TBD Amended City of Newport Beach Planning Commission Resolution TBD Initial City of Newport Beach Planning Commission Resolution 1953 Condition No. 37
Prior to issuance of grading permits, the applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Department and Code and Water Quality Enforcement Division. The WQMP shall provide appropriate Best Management Practices BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur.
Initial Coastal Development Permit No. 5-14-1785
Water Quality
Condition No. 4. Water Quality Management Plan:
Conditions:
PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the applicant shall submit for the review and approval of the Executive Director, a Water Quality Management Plan (WQMP) for the post -construction project site, prepared by a licensed water quality professional, and shall include plans, descriptions, and supporting calculations. The WQMP shall incorporate structural and non-structural Best Management Practices (BMPs) designed to reduce, to the maximum extent practicable, the volume, velocity and pollutant load of stormwater and dry weather flows leaving the developed site. In addition to the specifications above, the plan shall be in substantial conformance with the following requirements:
a) Post -development peak runoff rates and average volumes shall not exceed predevelopment conditions.
R.D. OLSON DEVELOPMENT 1 DISCRETIONARY PERMITS & WATER QUALITY CONDITIONS
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
b) Appropriate structural and non-structural BMPs shall be designed to treat or filter the runoff from all surfaces and activities on the development site. c) Post -construction structural BMPs (or suites of BMPs) should be designed to treat or filter the amount of stormwater runoff produced by all storms up to and including the 85th percentile, 24-hour storm event for volume -based BMPs, and/or the 85th percentile, 1-hour storm event, with an appropriate safety factor (i.e., 2 or greater), for flow -based BMPs. d) Runoff from all roofs and parking areas shall be collected and directed through a system structural BMPs of vegetated areas and/or gravel filter strips or other vegetated or media filter devices. The filter elements shall be designed to 1) trap sediment, particulates and other solids and 2) remove or mitigate contaminants through infiltration and/or biological uptake. The drainage system shall also be designed to convey and discharge runoff in excess of this standard from the building site in a non -erosive manner. e) The WQMP shall provide for the treatment of runoff from the parking surfaces using appropriate structural and non-structural BMPs. At a minimum this must include a filter designed specifically to minimize vehicular contaminants (oil, grease, automotive fluids, heavy metals), sediments, and floatables and particulate debris.
f) The applicant shall regularly sweep -the parking surfaces on a weekly basis, in order to prevent dispersal of pollutants that might collect on those surfaces.
g) The detergents and cleaning components used on site shall comply with the following criteria: they shall be phosphate -free, biodegradable, and non -toxic to marine wildlife; amounts used shall be minimized to the maximum extent practicable; no fluids containing ammonia, sodium hypochlorite, chlorinated solvents, petroleum distillates, or lye shall be used;
h) The applicant shall not spray down or wash down the parking lot or surrounding sidewalks unless the water used is directed through the sanitary sewer system or a filtered drain. No car washing shall be permitted in the parking lot.
i) All BMPs shall be operated, monitored, and maintained for the life of the project and at a minimum, all structural BMPs shall be inspected, cleaned - out, and where necessary, repaired at the following minimum frequencies:
(1) prior to October 15th each year; (2) during each month between October 15th and April 15th of each year and, (3) at least twice during the dry season.
j) Debris and other water pollutants removed from structural BMPs) during clean -out shall be contained and disposed of in a proper manner; k) It is the applicant's responsibility to maintain the drainage system and the associated structures and BMPs according to manufacturer's specification. 1) Water from the pool and spa shall not enter any storm drains without proper treatment.
R.D. OLSON DEVELOPMENT 2 DISCRETIONARY PERMITS & WATER QUALITY CONDITIONS
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
m) Provide a detailed description and flows of the "Flow Through" system in the parking lot area.
n) Provide clarification of the Fire Station parking lot permeability. o) Adequate curb cut size, number, and placement called out on the plans. p) The center of the parking areas and graded areas shall be constructed to adequately drain toward infiltration zones.
q) Finished grade of landscaping areas should be at a lower elevation than the surrounding impermeable areas.
The permittee shall undertake development in accordance with the final plan. Any proposed changes to the final plan shall be reported to the Executive Director. No changes to the final plan shall occur without a Commission amendment to this coastal development permit unless the Executive Director determines that no amendment is legally required.
WATERSHED -BASED PLAN CONDITIONS
Applicable
Lower Newport Bay TMDLs:
conditions from
' Metals
watershed - based
' Nutrients
plans including
' Pathogens
WIHMPs and
' Pesticides
TMDLs:
' Priority Organics
■ Siltation
Amended City of Newport Beach Planning Commission Resolution TBD Condition No. ##
Text to be determined
Amended Water
Quality Conditions:
Amended Coastal Development Permit No. TBD5
Condition No. #. Water Quality Management Plan:
Text to be determined
R.D. OLSON DEVELOPMENT 3 DISCRETIONARY PERMITS & WATER QUALITY CONDITIONS
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (WWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
SECTION II PROJECT DESCRIPTION
11.1 PROJECT DESCRIPTION
The proposed Lido House Hotel project site encompasses approximately 5.5 acres, including the fire station parcel, in the City of Newport Beach. The project site is bounded by Newport Boulevard to the west, 32nd Street to the south, Villa Way to the east and Finley Avenue to the north. A Vicinity Map is included in Section VI.
Under existing conditions, the project site consists of the Lido House Hotel. Adjacent land uses include retail commercial to the north, east, and south, and residential to the west across Newport Blvd. The site is located on the Balboa Peninsula in the Lido Village area of Newport Beach.
The table below summarizes the proposed project.
DESCRIPTION OF PROPOSED PROJECT
8. All significant redevelopment projects, where significant redevelopment is defined as the addition or replacement of 5,000 or more square feet of impervious surface on an already developed site. Redevelopment does not include routine maintenance activities that are conducted to maintain WQMP
original line and grade, hydraulic capacity, original purpose of the facility, Development
or emergency redevelopment activity required to protect public health and Category:
safety.
Since the proposed project includes the addition and replacement of more than 5,000 square feet of impervious surfaces on an already developed site, the project is considered a "Priority Project" in accordance with the Model WQMP and OC DAMP.
Project Area (ft2):
148,635ft2 (3.42 acres)
# of Dwelling
Not Applicable (hotel property).
Units:
SIC Code:
7011 Hotels and Motels
The amended project adds five (5) cottage units in the southeast quadrant of the existing project, an additional meeting room south of the existing ballroom and west of the caf6 and a small storage building on the east side of the hotel.
The balance of the project remains undisturbed and consists of: a 130-room hotel in one three-story building, meeting rooms, accessory retail spaces, a Narrative Project
restaurant, lobby bar, rooftop bar, guest pool and recreational areas. In Description:
addition, the project includes public open spaces consisting of a pedestrian plaza with landscape areas, decorative paving, benches and other features located along Newport Boulevard and 32n1 Street. Parking, utility and infrastructure improvement reconfigurations in the vicinity of the proposed cottages are also proposed. The fire station parcel will be used exclusively for parking and infiltration.
R.D. OLSON DEVELOPMENT 4 PROJECT DESCRIPTION
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
DESCRIPTION OF PROPOSED PROJECT
Low Impact Development (LID) features and best management practices (BMPs) will be incorporated into the project, and will include pervious pavement and infiltration galleries. Further details on the proposed BMPs can be found in Section A of this preliminary amended PWQMP.
Project Area:
Pervious Area
Pervious Area
Impervious Area
Impervious Area
Percentage
Percentage
Pre -Project
Conditions:
1.2 ac
28%
3.07 ac
o
72/0
Post -Project
Conditions:
0.85 ac
20%
3.42 ac
80% o
The addition of the five (5) cottage units impacts the eastern portion of the project. Local, on -site drainage patterns are disturbed but do not alter final drainage courses, volumes or flowrates. No significant change in impervious coverage is proposed.
Drainage on the site follows the topography of the land, with existing drainage patterns flowing westerly to Newport Blvd, northerly to Via Lido Plaza and southerly to Villa Way. The majority of flow is taken westerly to the existing catch basins in Newport Blvd. There are three (3) relatively shallow catch basins in Newport Blvd. The most northerly catch basin (CB 1) captures flow from the southwest portion of the Via Lido Plaza and a portion of the existing northerly arced parking lot. This basin is connected via two 12-inch connecting pipes to the existing catch basin at the southeast corner of the intersection of the main entry and Newport Blvd (CB 2). CB 2 collects drainage from most of the northerly portion of the project site in addition to the drainage from CB 1 and directs flows via two (2) 12-inch PVC connecting pipes, westerly across Newport Drainage
Boulevard to the existing municipal storm drain system. The most southerly Patterns/
catch basin (CB 3), is located at the northeast corner of Newport Blvd. and Connections:
32nd Street. This basin collects drainage from the majority of the southern portion of the site, and a basin on the southeast corner of Newport Blvd and 32nd Street and directs flow westerly across Newport Blvd. via a 15-inch RCP connecting pipe to the municipal storm drain system on the west side of Newport Boulevard. Both existing municipal storm drain systems on the westerly side of Balboa Boulevard discharge to the Rivo Alto channel, part of Lower Newport Bay. Drainage to the north is directed through the existing Via Lido Plaza parking lot to the existing municipal storm drain system on the north side of that site. This flow discharges to the northwest upper end of Lower Newport Bay. The southeast portion of the site drains southerly in Villa Way to the existing municipal storm drain system serving 30th, 31 st and 32nd streets. This system connects to the existing 36" RCP in 30th Street which discharges to the Rhine Canal in Lower Newport Bay.
Overall the project reduces runoff to the off -site storm drain facilities by slightly less than 2%. The proposed development will maintain the historic drainage patterns with the exception that flows are no longer routed north through the R.D. OLSON DEVELOPMENT 5 PROJECT DESCRIPTION
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
DESCRIPTION OF PROPOSED PROJECT
Via Lido Shopping area. Localized area drains are proposed to be used along landscaping adjacent to the building and to drain the courtyard/pool area. All other flows are anticipated to be overland. The drive approach area from the northerly parking area of the site to the Via Lido Plaza is anticipated to be re- graded to prevent runoff from Via Lido Plaza onto the site. Runoff would be diverted westerly within the Via Lido Plaza to the westerly inlet in the parking area connected to CB 1. This alteration is being proposed primarily to reduce the impact of off -site runoff on the on -site water quality BMPs.
Runoff from all roofs and parking areas shall be collected and directed through a system structural BMPs of gravel infiltration galleries and pervious pavement.
The drainage system shall also be designed to convey and discharge runoff in excess of this standard from the building site in a non -erosive manner.
See also Section 111.2 for further drainage descriptions.
PROJECT FEATURES
The hotel building remains at 3 levels with 130 guest rooms. The guestrooms include both queen and king guestrooms. The extended stay suites remain and Building
5 additional two-story villas are being proposed in addition to the existing five Summary:
5) villas. A lighthouse -style observation tower is proposed in the northwest corner of the site. The existing fire station located in the southeast corner of the site will remain under proposed conditions.
The revised site adds a meeting room south of the existing ballroom. Existing guest amenities within the hotel include meeting rooms, accessory retail spaces, a restaurant, lobby bar, rooftop bar, fitness center, guest pool and private outdoor recreational area. Specifically, the outdoor private recreational area Amenities:
will include a pool, spa, outdoor fireplace, focal water feature, formal lawn area and decorative landscaping. North of the proposed villas an additional event lawn is being planned. The western portion of the site along Newport Boulevard includes a public plaza, and will feature decorative paving, wood decking, reclaimed wood benches, a lawn terrace with preserved existing trees, native landscaping throughout the plaza.
Landscaping exists around the perimeter of the site, within the central guest Landscaped
recreational area/courtyard, as planters on the rooftop lounge area, within the Areas:
parking lot, and within the public plaza along Newport Boulevard.
Approximately 1 acre of the site will be landscaped.
Hardscaped
Hardscaped areas will be located throughout the site, and will include asphalt Areas:
and permeable paved drive aisles and parking areas (---1.0 ac), concrete paver outdoor courtyards and concrete sidewalks (---1.5 ac).
R.D. OLSON DEVELOPMENT 6 PROJECT DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
PROJECT FEATURES
Parking will be provided as surface spaces surrounding the proposed building.
A total of 117 surface spaces are proposed, reduced from the existing 148. An Parking Facilities:
off -site parking agreement will make up the lost spaces. The existing metered surface parking spaces along 32n1Street will remain under proposed conditions (16 total spaces).
A restaurant is within the building, with additional seating provided in an outdoor courtyard. All food preparation will be handled indoors. A grease interceptor is located in the sanitary sewer system in accordance with local requirements.
The trash enclosure on the south side is being reconfigured on the west side of the proposed ballroom. The existing trash enclosure, located in the southeastern portion of the site near the existing fire station will remain. These Other Project
areas will be walled and covered to preclude precipitation and runoff consistent with City standards.
Features:
The at -grade delivery area will be reconfigured on the east side of the hotel. A small storage bldg. is proposed to facilitate deliveries. No below -grade loading docks are proposed.
The site will not have any additional outdoor storage areas, vehicle/ community car wash racks or vehicle/equipment wash areas. The applicant shall not spray down or wash down the parking lot or surrounding sidewalks unless the water used is directed through the sanitary sewer system or a filtered drain. No car washing shall be permitted in the parking lot.
Outdoor areas throughout the site are used for vehicle parking (in designated spaces), pedestrian access, recreational and event purposes. The private recreation areas include a pool, spa, fireplace, formal lawns and other landscaping for guest uses. An arrival court with focal water feature and motor Outdoor
court gateway is located on the northern side of the building. Paved parking is Activities:
located along the northern, eastern, and southern portions of the site.
A public plaza is located on the western side of the project along Newport Boulevard, and will feature decorative paving, wood decking, reclaimed wood benches, a lawn terrace with preserved existing trees, native landscaping throughout the plaza. The outdoor space will be for passive recreational uses.
No outdoor storage of materials is anticipated (materials will be stored indoors). Materials anticipated to be utilized and stored on -site include those associated with commercial/hotel uses (including cleaning and maintenance products, hotel linens, guestroom amenity supplies, office supplies, retail inventory, etc.) and restaurant uses (food preparation equipment, service Materials Used &
supplies, food items, table settings, etc.). Pool cleaning materials and chemical Stored:
swill be stored indoors or off -site (via pool cleaning contractor).
The detergents and cleaning components used on site shall comply with the following criteria: they shall be phosphate -free, biodegradable, and non -toxic to marine wildlife; amounts used shall be minimized to the maximum extent practicable; no fluids containing ammonia, sodium hypochlorite, chlorinated solvents, petroleum distillates, or lye shall be used.
R.D. OLSON DEVELOPMENT 7 PROJECT DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
PROJECT FEATURES
The project is not anticipated to generate any wastes other than landscaping clippings and trash & debris. Outdoor trash receptacles will be provided Wastes
throughout the common areas of the site for the visitors to dispose of their Generated:
refuse in a proper manner, and property maintenance will provide trash and removal to maintain atrash-free property. All wastes shall be Lwasteaterial
and properly disposed of off -site (see Sections IV.3.8 & IV.3.9 for ontrol BMPs related to these features).
11.2 POTENTIAL STORM WATER POLLUTANTS
The table below, derived from Table 2 of the Countywide Model WQMP Technical Guidance Document (May 201 1), summarizes the categories of land use or project features of concern and the general pollutant categories associated with them.
ANTICIPATED & POTENTIAL POLLUTANTS GENERATED BY LAND USE TYPE General
Pollutant
Categories
H
H
0 .Y
06 Priority Project Categories
and/or Project Features
N N
am
a
x a o
a 0-
s
O
Qj NN
Z
= 5,000 ft2
E
E
N
E
E
E
N
E
Parking Lots
E
E(l)
E
E(4)
EI'I
E
E
E
Streets, Highways, &
E
EI'I
E
E(4)
E(l)
E
E
E
Freeways
Retail Gasoline Outlets
N
N
E
N
N
E
E
E
Notes:
E = expected to be of concern N = not expected to be of concern (1) Expected pollutant if landscaping exists on -site, otherwise not expected. (2) Expected pollutant if the project includes uncovered parking areas, otherwise not expected. (3) Expected pollutant if land use involves food or animal waste products, otherwise not expected. (4) Bacterial indicators are routinely detected in pavement runoff. (5) Expected if outdoor storage or metal roofs, otherwise not expected.
Source: County of Orange. (2011, May 19). Technical Guidance Document for the Preparation of Conceptual/ Preliminary and/or Project Water Quality Management Plans (WQMPs). Table 2.1 .
R.D. OLSON DEVELOPMENT 8 PROJECT DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
Priority Project Categories and/or Features:
■ Commercial/Industrial Development
■ Parking Lots
POLLUTANTS OF CONCERN
E = Expected to be of
Pollutant
concern
Additional Information and Comments
N =Not Expected to
be of concern
Suspended Solid/
E
303(d) listed impairment / TMDL
Sediment
Nutrients
E
303(d) listed impairment / TMDL
Heavy Metals
E
303(d) listed impairment / TMDL
Pathogens
(Bacteria/Virus)
E
303(d) listed impairment / TMDL
Pesticides
E
303(d) listed impairment / TMDL
Oil & Grease
E
Toxic Organic
E
Compounds
Trash & Debris
E
11.3 HYDROLOGIC CONDITIONS OF CONCERN
The purpose of this section is to identify any hydrologic conditions of concern (HCOC) with respect to downstream flooding, erosion potential of natural channels downstream, impacts of increased flows on natural habitat, etc. As specified in Section 2.3.3 of the 2011 Model WQMP, projects must identify and mitigate any HCOCs. A HCOC is a combination of upland hydrologic conditions and stream biological and physical conditions that presents a condition of concern for physical and/or biological degradation of streams.
In the North Orange County permit area, HCOCs are considered to exist if any streams located downstream from the project are determined to be potentially susceptible to hydromodification impacts and either of the following conditions exists:
■ Post -development runoff volume for the 2-yr, 24-hr storm exceeds the pre -development runoff volume for the 2-yr, 24-hr storm by more than 5 percent or
R.D. OLSON DEVELOPMENT 9 PROJECT DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
■ Time of concentration (Tc) of post -development runoff for the 2-yr, 24-hr storm event exceeds the time of concentration of the pre -development condition for the 2-yr, 24-hr storm event by more than 5 percent.
If these conditions do not exist or streams are not potentially susceptible to hydromodification impacts, an HCOC does not exist and hydromodification does not need to be considered further. In the North Orange County permit area, downstream channels are considered not susceptible to hydromodification, and therefore do not have the potential for a HCOC, if all downstream conveyance channels that will receive runoff from the project are engineered, hardened, and regularly maintained to ensure design flow capacity, and no sensitive habitat areas will be affected.
Is the proposed project potentially susceptible to hydromodification impacts? ❑ Yes ® No (show map)
In accordance with updated Susceptibility Analysis, Newport Bay, Newport Coastal Streams exhibit within the 2011 TGD, the project lies in a location not subject to hydromodification impacts or HCOC's.
11.4 POST DEVELOPMENT DRAINAGE CHARACTERISTICS
Overall the project reduces runoff to the off -site storm drain facilities by slightly less than 2%. The proposed development will maintain the historic drainage patterns with the exception that flows are no longer routed north through the Via Lido Shopping area. Due to the shallow depths of the adjacent public storm drain catch basins and the need to treat low flows to conform to the requirements of Low Impact Development and the County of Orange Drainage Area Management Plan (DAMP), this project will continue using primarily surface flow with localized area drains to drain the site. This method maximizes the potential for runoff infiltration which is the primary Best Management Practice for water quality purposes.
Localized area drains are proposed to be used along landscaping adjacent to the building and to drain the courtyard/pool area. Runoff from all roofs and parking areas shall be collected and directed through a system structural BMPs of gravel underground infiltration galleries and pervious pavement. The drainage system shall also be designed to convey and discharge runoff in excess of this standard from the building site in a non -erosive manner. All other flows are anticipated to be overland.
11.5 PROPERTY OWNERSHIP/MANAGEMENT
PROPERTY OWNERSHIP/MANAGEMENT
Public Streets:
City of Newport Beach
Private Streets:
Not Applicable
Landscaped Areas:
City of Newport Beach (public areas)
R.D. Olson Development (private areas)
Open Space:
City of Newport Beach (public areas)
R.D. Olson Development (private areas)
R.D. OLSON DEVELOPMENT 10 PROJECT DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
PROPERTY OWNERSHIP/MANAGEMENT
Easements:
City of Newport Beach (public access/right-of-way)
Southern California Edison (various utilities)
Parks:
Not Applicable
Buildings:
R.D. Olson Development
Structural BMPs:
R.D. Olson Development
R.D. Olson Development shall assume all BMP maintenance and inspection responsibilities for the proposed project. Inspection and maintenance responsibilities are outlined in Section V of this report.
R.D. OLSON DEVELOPMENT 1 1 PROJECT DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP)
LIDO HOUSE HOTEL
SECTION III SITE DESCRIPTION
111.1 PHYSICAL SETTING
JUNE 14, 2021
Planning Area/
Lido House Hotel
Community Name:
Address:
3300 Newport Boulevard, Newport Beach, CA
Project Area Description:
Northeast corner of Newport Boulevard and 32n1 Street on the Balboa Peninsula in the Lido Village area of Newport Beach
Land Use:
Existing: Mixed Use (MU-H5)
Proposed: Mixed Use (MU-H5) [no change]
Zoning:
Existing: Mixed Use -Lido Village (MU-LV)
Proposed: Mixed Use -Lido Village (MU-LV) [no change]
Acreage:
4.27 ac
Predominant Soil Type:
A'
Impervious Conditions:
Existing Impervious Area: ---3.4 acres (80%)
o
Proposed Impervious Area: -�-3.4 acres (80%) [no change] Pervious Conditions:
-�- Existing Pervious Area: 0.8 acres (20%)
Proposed Pervious Area: —0.8 acres (20%) [no change]
111.2 SITE CHARACTERISTICS
Precipitation Zone:
0.7 inches per Figure XVI-1 of the TGD (see Appendix A) The project site is relatively flat with the highest point being in the center of the site where the existing city hall buildings are located. The site drops off on all sides to the adjacent parking and roadway areas.
Existing elevations vary from a high of approximately 10.1 feet to 8.8 Topography:
in the adjacent street with the catch basins on Newport Blvd. at 6.6 feet at the flow line.
Drainage on the site follows the topography of the land, with existing drainage patterns flowing westerly to Newport Blvd, northerly to Via Lido Plaza and southerly to Villa Way.
The majority of flow is taken westerly to the existing catch basins in Existing Drainage
Newport Blvd. There are three (3) relatively shallow catch basins in Newport Blvd. with depths on the order of two (2) feet deep.
Patterns/ Connections:
The most northerly catch basin (designated CB 1) captures flow from the southwest portion of the Via Lido Plaza and a portion of the ' Source: County of Orange Environmental Management Agency. (1986, October). Orange County Hydrology Manual.
R.D. OLSON DEVELOPMENT 12 SITE DESCRIPTION
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP)
LIDO HOUSE HOTEL
JUNE 14, 2021
existing northerly arced parking lot. This basin is connected via two 12-inch connecting pipes to the existing catch basin at the southeast corner of the intersection of the main entry and Newport Blvd (designated CB 2).
Catch basin 2 collects drainage from most of the northerly portion of the project site in addition to the drainage from catch basin 1 and directs flows via two (2) 12-inch PVC connecting pipes, westerly across Newport Boulevard to the existing municipal storm drain system.
The most southerly catch basin (designated CB 3, is located at the northeast corner of Newport Blvd. and 32nd Street. This basin collects drainage from the majority of the southern portion of the site, and a basin on the southeast corner of Newport Blvd and 32nd Street and directs flow westerly across Newport Blvd. via a 15-inch RCP connecting pipe to the municipal storm drain system on the west side of Newport Boulevard.
Both existing municipal storm drain systems on the westerly side of Balboa Boulevard discharge to the Rivo Alto channel, part of Lower Newport Bay.
Drainage to the north is directed through the existing Via Lido Plaza parking lot to the existing municipal storm drain system on the north side of that site. This flow discharges to the northwest upper end of Lower Newport Bay.
The southeast portion of the site drains southerly in Villa Way to the existing municipal storm drain system serving 30'h, 315' and 32nd streets. This system connects to the existing 36" RCP in 30'h Street which discharges to the Rhine Canal in Lower Newport Bay.
Overall the project reduces runoff to the off -site storm drain facilities by slightly less than 2%. The proposed development will maintain the historic drainage patterns with the exception that flows are no longer routed north through the Via Lido Shopping area. Due to the shallow depths of the adjacent public storm drain catch basins and the need to treat low flows to conform to the requirements of Low Impact Development and the County of Orange Drainage Area Management Plan (DAMP), this project is proposing using primarily surface flow with Proposed Drainage localized area drains to drain the site. This method maximizes the Patterns/ Connections: potential for runoff infiltration which is the primary BMP for water quality purposes. Infiltration is also the preferred methodology for mitigating pollutants of concern per the County DAMP.
Localized area drains are proposed to be used along landscaping adjacent to the building and to drain the courtyard/pool area. Runoff from all roofs and parking areas shall be collected and directed through a system structural BMPs of gravel infiltration galleries and pervious pavement. The drainage system shall also be designed to convey and discharge runoff in excess of this standard from the R.D. OLSON DEVELOPMENT 13 SITE DESCRIPTION
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
building site in a non -erosive manner. All other flows are anticipated to be overland.
The basic flow pattern of the existing site is maintained but quantities to the downstream off -site areas are slightly different. The drive approach area from the northerly parking area of the site to the Via Lido Plaza is anticipated to be re -graded to prevent runoff from Via Lido Plaza onto the site. Runoff would be diverted westerly within the Via Lido Plaza to the westerly inlet in the parking area connected to CB 1 . This only alters the routing of the flow not the destination and there is not a significant difference in flow path length, hence there should be no significant impact due to this alteration. This alteration is being proposed primarily to reduce the impact of off -site runoff on the on - site water quality BMPs.
The site is underlain by approximately 5 to 6 feet of dredged fill overlying alluvial soil materials. The dredged fill materials are highly Soil Type, Geology, and
variable and consist of intermixed layers of silts, sands, and silty sands, Infiltration Properties:
and clayey sands while the alluvial materials consist of loose to medium dense sands to silty sands to with occasional thick layers of moderately firm to very stiff silts and clays.
During geotechnical investigations conducted on -site, the water table varied from 4.5 to 6 feet below the existing surface, which correlates Hydrogeologic
to a water table/seawater elevation varying from 3.5 MSL to 4.0 MSL (Groundwater)
across the site. During the geotechnical investigation, the groundwater Conditions:
levels were observed to fluctuate with the tide in the bay, indicating that the groundwater is tidally influenced. In addition, the Santa Ana River Basin Plan identifies groundwaters in the Lower Newport Bay are excepted from MUN (Municipal and Domestic Supply) beneficial uses.
Infiltration tests were performed on the project site in general accordance with the Santa Ana Regional Water Quality Control Board Technical Guidance Document (TGD) Appendices dated March 2011, utilizing the shallow percolation test procedure contained in Section VI1.3.8. Two rounds of tests were conducted, with the first round in 2013 and the second in 2015. For the first round of testing, two (2) fl- inch -diameter test holes were excavated in the northern and southern portions of the site to a depth of approximately 5 feet using a hollow Geotechnical Conditions
stem auger drill rig. The second round of testing included seven (7) 6- (relevant to infiltration):
inch diameter test holes to depths of 3 feet using hand -powered auger drills.
The 2013 testing results found the average permeability rate varied from 1.4 inches per hour at DH-1 to 12.3 inches per hour at DH-5.
During the 2015 testing, the measured infiltration rates of the seven infiltration areas were found to be between 1 .88 and 12.72 inches per hour. Results of both testing events are included in Appendix F of this report.
R.D. OLSON DEVELOPMENT 14 SITE DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
Since the measured infiltration rates are greater than 0.3 inches per hour required or feasibility, infiltration is considered feasible on the project site. Although depths to the water table are relatively shallow on the site (< 10 feet below ground surface), the water table is tidally influenced due to the proximity to the bay, and is not a source of drinking water supply (excepted from MUN beneficial use designation).
Infiltration on this site as a BMP will only be for water quality purposes and not for groundwater recharging since the groundwater is from the ocean/bay. In addition, the proposed infiltration BMPs are not anticipated to impact groundwater quality, since the water below the site is influenced by seawater and is not a source of drinking water supply. Additional media filtration pre-treatment BMPs are also proposed throughout the site. These measures are discussed further in Section IV.3.7 of this report.
Under existing conditions, the project site receives a small amount of Off -Site Drainage:
runoff from the parking lot and driveway immediately north of the site.
Under proposed conditions, on -site runoff will be infiltrated prior to co -mingling with any off -site drainage that enters the site.
Utility and Infrastructure
Dry and wet utilities will be incorporated into the proposed project and Information:
will tie into existing facilities associated with the existing development. 111.3 WATERSHED DESCRIPTION
Receiving Waters:
Lower Newport Bay
Per the 2010 List for Lower Newport Bay:
303(d) Listed
■ Chlordane
■
Nutrients
Impairments:
ECopper
0PCBs
■ DDT
■
Pesticides
■ Indicator Bacteria
■
Sediment Toxicity
For Lower Newport Bay:
Applicable TMDLs:
• Metals
■
Pesticides
■ Nutrients
■
Priority Organics
■ Pathogens
■
Siltation
Per Section 11.2
Pollutants of Concern for
• Suspended Solids/Sediment
•
Pesticides
the Project:
■ Nutrients
■
Oil & Grease
■ Heavy Metals
■
Toxic Organic Compounds
■ Pathogens (Bacteria/Virus)
•
Trash & Debris
Hydrologic Conditions of
None. Refer to Section 11.3 for details.
Concern (HCOCs):
R.D. OLSON DEVELOPMENT 15 SITE DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
Environmentally Sensitive The project site is not located within 200 ft of an Environmentally and Special Biological Sensitive Area (ESA) or Areas of Special Biological Significance Significant Areas: (ASBS).
R.D. OLSON DEVELOPMENT 16 SITE DESCRIPTION
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (WWQMP)
LIDO HOUSE HOTEL
SECTION IV BEST MANAGEMENT PRACTICES (BMPs)
IV.1 PROJECT PERFORMANCE CRITERIA
JUNE 14, 2021
Is there an approved WIHMP or equivalent for the project area that includes more stringent LID feasibility criteria or if there are opportunities identified for implementing LID on regional or sub -regional basis? ❑ Yes ® No
PROJECT PERFORMANCE CRITERIA
Hydromodification
Control Performance
Criteria:
Not Applicable. This project is exempt from hydromodification (Model WQMP Section
requirements. Refer to Section 11.3 for further details.
7.11-2.4.2.2)
LID Performance
Infiltrate, harvest and use, evapotranspire, or biotreat/biofilter, the 851" Criteria:
percentile, 24-hour storm event (Design Capture Volume). (Model WQMP Section
LID BMPs must be designed to retain, on -site, (infiltrate, harvest and
7.11-2.4.3)
use, or evapotranspire) storm water runoff up to 80 percent average annual capture efficiency
Treatment Control
If it is not feasible to meet LID performance criteria through retention BMP Performance
and/or biotreatment provided on -site or at a sub-regional/regional Criteria:
scale, then treatment control BMPs shall be provided on -site or offsite (Model WQMP Section
prior to discharge to waters of the US. Sizing of treatment control BMP(s)
7.11-3.2.2)
shall be based on either the unmet volume after claiming applicable water quality credits, if appropriate.
Total Site / Property = 4.274 acres (80% impervious)
LID Design Storm
Simple Method DCV = 8,145.2 ft3
Capture Volume:
Refer to Section IV.2.2 for specific Drainage Manage Area (DMA) breakdown and Appendix A for detailed calculations (Worksheet B).
IV.2 SITE DESIGN AND DRAINAGE PLAN
The following section describes the site design BMPs used in this project and the methods used to incorporate them. Careful consideration of site design is a critical first step in storm water pollution prevention from new developments and redevelopments.
R.D. OLSON DEVELOPMENT 17 BEST MANAGEMENT PRACTICES
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
IV.2.1 Site Design BMPs
Minimize Impervious Area
Impervious surfaces have been minimized by incorporating landscaped areas throughout the site surrounding the proposed building and within the interior courtyard. Additionally, pervious pavement will be incorporated into the proposed parking lot to further reduce impervious areas and detain runoff for infiltration into the subsoils. The proposed building will also feature multiple stories, building vertically rather than horizontally, with an interior courtyard, to minimize building footprint.
Maximize Natural Infiltration Capacity
Portions of the proposed parking lot will be constructed with pervious pavement. In addition, runoff will be routed to landscaped areas to maximize natural infiltration capacity. Locations of the infiltration BMPs (underground infiltration galleries and pervious pavement) were selected based on drainage patterns, locations with reduced traffic and loading (e.g., in the perimeter parking lot versus the main entryway/driveway) and proximity to the building. Refer to Section IV.3.2 for details on the proposed infiltration BMPs.
Preserve Existing Drainage Patterns and Time of Concentration Overall the project reduces runoff to the off -site storm drain facilities by slightly less than 2%. The proposed development will maintain the historic drainage patterns with the exception that flows are no longer routed north through the Via Lido Shopping area. Due to the shallow depths of the adjacent public storm drain catch basins and the need to treat low flows to conform to the requirements of Low Impact Development and the OC DAMP, this project is proposing using primarily surface flow with localized area drains to drain the site. This method maximizes the potential for runoff infiltration and reduces runoff rates and volumes, and results in longer Tc values.
Disconnect Impervious Areas
Runoff form the impervious areas of the project site, including sidewalks, rooftops, and other impervious areas will drain to landscaping areas, underground infiltration galleries and pervious pavement areas for infiltration into the sub -soils. In addition, runoff from the proposed parking lot will drain to pervious pavement to further disconnect impervious areas.
Protect Existing Vegetation and Sensitive Areas, and Revegetate Disturbed Areas The site is fully developed under existing conditions, and all disturbed areas on the site will either be paved or landscaped. The existing shade trees located along the western portion of the site will be preserved and incorporated into the landscape design of the public pedestrian plaza. There are no sensitive areas on the project site to be preserved.
Soil Stockpiling and Site Generated Organics
Construction of the project will only require small amounts of grading and fill placement to support the proposed building structure. Temporary soil stockpiles utilized during construction activities will be stabilized consistent with the requirements of the General Construction Permit (SWRCB Order No. 2009-0009-DWQ) and local requirements to prevent erosion/sedimentation and potential transport of pollutants.
R.D. OLSON DEVELOPMENT 18 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
Firescaping
The project site is not located in a high risk wildfire zone. The project will comply with all requirements of the local fire authority for landscaping, building setbacks, and other requirements of the Uniform Fire Code, City Codes, County of Orange Fire Authority, and other local standards.
Xeriscape Landscaping
Within the public plaza along Newport Boulevard and portions of 32n1 Street, the landscaping plan will include mounded native grasses and dune planting, with low water and fertilizer/pesticide requirements.
Additional native and/or drought -tolerant landscaping will be incorporated throughout the remainder of the site consistent with City and County landscaping guidelines.
Slopes and Channel Buffers
There are no slopes or channels on the project site and therefore, this site design BMP will not be utilized as part of the project.
IV.2.2 Drainage Management Areas
In accordance with the MS4 permit and the 2011 Model WQMP, the project site has been divided into Drainage Management Areas (DMAs) to be utilized for defining drainage areas and sizing LID and other treatment control BMPs. DMAs have been delineated based on the proposed site grading patterns, drainage patterns, storm drain and catch basin locations. As a result, the sum of the drainage areas may be slightly different than the legal property boundary acreage.
The design capture volumes (DCV) and treatment flow rates (QD,,ign) for each DMA are summarized in the table below. These have been derived utilizing the "Simple Method" in accordance with the TGD Section III.1.1 . Actual BMP sizing requirements, including 80 percent capture design volumes, flow rates, depths, and other design details forthe specific BMPs proposed are provided in Section IV.3.2. Locations of DMAs and associated LID and treatment BMPs are identified on the exhibits in Section VI. Additional calculations and TGD Worksheets are provided in Appendix A.
DRAINAGE MANAGEMENT AREAS (DMAs)
Drainage
Drainage
Design
Simple
Area Name
BMP ID, Feature or
Area
o
/o
Runoff
Storm
Method
/ DMA('
Land Use Type
(acres)
impervious
Coefficient
Depth(')
DCV(3)
(in)
(ft3)
DMA Al
underground
0.886
77.4%
0.731
0.7 1,645.7
infiltration
DMA A2
pervious pavement
0.286
86.4%
0.798
0.7 579.9
DMA A3
HSC-2 self -treating
0.094
37.8%
0.434
0.7 103.7
area
DMA 131
pervious pavement
0.381
92.2%
0.842
0.7 815.2
DMAs
B2+B3
pervious pavement
p
0.473
85.5%
0.791
0.7 950.7
DMA C1
underground
0.897
63.8%
0.629
0.7 1,433.7
infiltration
R.D. OLSON DEVELOPMENT 19 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP)
LIDO HOUSE HOTEL
JUNE 14, 2021
DRAINAGE MANAGEMENT AREAS (DMAs)
Drainage
Drainage
Design
Simple
Area Name
BMP ID Feature or
Area
o
/o
Runoff
Storm
Method
/ DMAP)
Land TYp e
(acres)
im er✓ious
p
Coefficient
De th(2)
p
DCV(3I
(in)
(ft3)
DMA D1
pervious pavement
0.189
85.8%
0.794
0.7 381.3
DMA D2
pervious pavement
0.099
84.1 %
0.781
0.7 196.5
DMA D3
pervious pavement
0.109
85.5%
0.791
0.7 219.1
DMA F 1
pervious pavement
0.389
93.1 %
0.851
0.7 841.2
DMA F2
pervious pavement
0.170
89.9%
0.812
0.7 350.8
TOTAL DMAs
3.972
79.3%
0.745
0.7 7,519.2
TOTAL
PROPERTY
4.274
80.0%
0.773
0.7 8,145.2
Notes:
1 . Refer to exhibits in Section VI for locations of each DMA.
2. Per Figure XVI-1 of the Technical Guidance Document, dated May 19, 201 1 . See also Appendix A.
3. Per Section III.1 .1 of the Technical Guidance Document.
IV.3 LID BMP SELECTION AND PROJECT CONFORMANCE ANALYSIS Low Impact Development (LID) BMPs are required in addition to site design measures and source controls to reduce pollutants in storm water discharges. LID BMPs are engineered facilities that are designed to retain or biotreat runoff on the project site. The 41" Term MS4 Storm Water Permit (Order R8-2009-0030) requires the evaluation and use of LID features using the following hierarchy of treatment: infiltration, evapotranspiration, harvest/reuse summarize the LID BMPs proposed for the project in
performance criteria outlined in Section IV. 1.
IV.3.1 Hydrologic Source Controls (HSCs)
and biotreatment. The following sections
accordance with the permit hierarchy and
Hydrologic source controls (HSCs) can be considered to be a hybrid between site design practices and LID BMPs. HSCs are distinguished from site design BMPs in that they do not reduce the tributary area or reduce the imperviousness of a drainage area; rather they reduce the runoff volume that would result from a drainage area with a given imperviousness compared to what would result if HSCs were not used.
HYDROLOGIC SOURCE CONTROLS
ID
Name
Included?
HSC-1
Localized on -lot infiltration
❑
HSC-2
Impervious area dispersion (e.g. roof top disconnection) R.D. OLSON DEVELOPMENT 20 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP)
LIDO HOUSE HOTEL
JUNE 14, 2021
HYDROLOGIC SOURCE CONTROLS
ID
Name
Included?
HSC-3
Street trees (canopy interception)
❑
HSC-4
Residential rain barrels (not actively managed)
❑
HSC-5
Green roofs/Brown roofs
❑
HSC-6
Blue roofs
❑
HSC-7
Impervious area reduction (e.g. permeable pavers, site design) The project will utilize hydrologic source controls (impervious area dispersion) along the southern perimeter of the site. Within these areas small portions of hardscape areas (sidewalks) will drain to adjacent landscaping for infiltration at natural rates into the soils. Based on the capture efficiency calculations, the large amounts of landscaping and pervious surfaces in these areas are sufficient to treat runoff from the adjacent impervious surfaces in accordance with the Model WQMP and TGD (meeting 80% minimum average annual capture efficiency). Areas, calculations and associated worksheets are included in Appendix A.
HYDROLOGIC SOURCE CONTROL BMP SUMMARY
Pervious to
DMA
Drainage
Impervious
%
HSC Type
Ratio
dHSCtotal�2)
Capture
Sufficient?
ID
Area
Tributary to
by HSC (3)
HSC
DMA A3
HSC-2 Impervious
0.09 ac
1.6 0.80"
80%
Yes
Area Dispersion
Notes:
l . Refer to Section IV.3.1 for individual DMA tributary areas. Refer to exhibits in Section A for locations of BMPs.
2. Per chart in Fact Sheet HSC-2 of the Technical Guidance Document, dated December 20, 2013. Per Fact Sheet HSC-2, the maximum dHSC is equal to the Design Storm Depth for the project (0.7").
3. Per Table III.1 of the Technical Guidance Document, dated December 20, 2013. Worksheets are included in Appendix A.
IV.3.2 Infiltration BMPs
Infiltration BMPs are LID BMPs that capture, store and infiltrate storm water runoff. These BMPs are engineered to store a specified volume of water and have no design surface discharge (underdrain or outlet structure) until this volume is exceeded. Examples of infiltration BMPs include infiltration trenches, bioretention without underdrains, drywells, permeable pavement, and underground infiltration galleries.
R.D. OLSON DEVELOPMENT 21 BEST MANAGEMENT PRACTICES
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
INFILTRATION
ID
Name
Included?
Bioretention Without Underdrains
❑
Rain Gardens
❑
INF-3
INF-4
Porous Landscaping
❑
Infiltration Planters
❑
Retention Swales
❑
INF-2
Infiltration Trenches
❑
INF-1
Infiltration Basins
❑
INF-5
Drywells
❑
INF-7
Subsurface Infiltration Galleries
--
French Drains
❑
Permeable Asphalt
INF-6
Permeable Concrete
❑
Permeable Concrete Pavers
Other:
❑
The project will utilize infiltration BMPs throughout the site, taking advantage of the sandy soils and the open landscaping areas. Permeable pavers are proposed for portions of the parking lot and drive aisle.
Runoff from the central recreation area will be diverted to a proposed gravel bed infiltration gallery located below the formal lawn area. Runoff from the remaining landscaped areas and public walkways along Newport Boulevard will infiltrate via proposed infiltration gallery located along the perimeter of the site.
Pervious Pavement
Permeable pavement, such as permeable pavers, grass pavers, porous concrete, and porous asphalt, provides a surface suitable for light -loads and parking areas in which water can drain through pore spaces to an underlying rock reservoir (approximately 12" inches deep) underneath. The sub -surface base allows for physical and microbial filtering processes to take place thereby removing pollutants such as particulates, organics, hydrocarbons and total suspended sediments, including attached heavy metals. The pervious pavement sections proposed for the project will have an average rock reservoir depth of 12 inches.
R.D. OLSON DEVELOPMENT 22 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
Gravel Bed Infiltration Galleries
An underground infiltration gallery typically consists of a vault or chamber system, or gravel bed with an open bottom that is used to store runoff and percolate into the subsoils. Runoff enters the gravel bed through perforated pipes, is stored in the void space and pipe and infiltrates through the bottom. The infiltration gallery will be designed to be approximately 6-30' wide with an average rock reservoir depth of 12 inches, and will be covered with approximately 6-8" of turf and topsoil (DMA Al only).
Infiltration BMP Sizing Calculations
In accordance with the MS4 permit and the new Model WQMP, the Design Capture Volumes (DCVs) presented in the following table represent the minimum volume of storm water runoff required to be treated by LID and/or treatment control BMPs for the proposed project. Due to the shallow design depths, the infiltration BMPs will drain in less than 48 hours, and therefore the BMPs were sized utilizing the Capture Efficiency, Constant Drawdown BMP sizing methodology to achieve the target capture efficiency of 80% in accordance with Section 111.3.2 and Worksheet C of the TGD. Results are summarized in the following table based on footprints and depths required by each BMP. Detailed calculations are provided in Appendix A.
INFILTRATION BMP DESIGN SUMMARY
BMP
Minimu
Drainag
Effectiv
Design
Draw-
80%
m
GIS
BMP
DMA
e Area
a
Infiltratio
down
Capture
Footpri
Footprint
Coordinat
Type
ID(')
(ac)
Depth(
n Rate
(hr)
DCV(3)
nt
Provided (ft2)
e
(in/hr)
(ft3)
Needed
(ft2)
33.61611
DMA
4 A2
0.286
0.40 0.59
8.14 261.0
652.4
1,613.0
-
1 17.9293
46 33.61682
DMA
2 B1
0.381
0.40 0.48
10.00 407.6
1,018.9
3,193.8
-
117.9290
Pervious
40 Pavement
(4)
33.61712
DMAs
9 B2+13
0.473
0.40 3.22
3.00 237.7
594.2
720.0
-
3 117.9299
69 33.61687
DMA
8 D1
0.189
0.40 3.23
3.00 95.3
238.3
4,192.7
-
1 17.9288
85 R.D. OLSON DEVELOPMENT 23 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
INFILTRATION BMP DESIGN SUMMARY
7DD2
33.61716
MA
0 0.099
0.40 3.23
3.00 49.1
122.8
1,795.0
-
1 17.9293
95 33.61719
DMA
7,
D3
0.109
0.40 0.74
6.49 85.4
213.6
240.0
-
1 17.9299
59 33.61641
4 DMA
0.389
0.40 1.45
3.3 210.3
526
2080(6)
-
F1
1 17.9288
27 33.61612
DMA
2 0.170
0.40 1.33
3.6 87.7
219
2760(6)
-
F2
1 17.9289
04 33.61635
9 DMA
0.886
0.40 1.26
3.81 411.4
1,028.6
1,500.0
Gravel
Al
117.9295
Bed
Itratio
02 I nfi
33.61659
n
Gallery(5)
DMA
7 C 1
0.897
0.40 0.33
14.55 860.2
2,150.5
2,176.1
-
1 17.9301
43 Notes:
1. Refer to WQMP Exhibit in Section VI for locations of DMAs and BMPs.
2. Includes reservoir storage depth adjusted for porosity.
3. Per Worksheet C, "Determining Capture Efficiency of Volume Based, Constant Drawdown BMPs." Copies of completed worksheets with detailed calculations are included in Appendix A.
4. Pervious pavement gravel reservoir storage depth = 12 inches (40% porosity).
5. Gravel bed storage depth = 12 inches (40% porosity).
6. DMA F1 & F2 galleries are connected via an equalizer pipe.
IV.3.3 Evapotranspiration & Rainwater Harvesting BMPs
Evapotranspiration BMPs are a class of retention BMPs that discharges stored volume predominately to ET, though some infiltration may occur. ET includes both evaporation and transpiration, and ET BMPs may incorporate one or more of these processes. BMPs must be designed to achieve the maximum feasible ET, where required to demonstrate that the maximum amount of water has been retained on - site. Since ET is not the sole process in these BMPs, specific design and sizing criteria have not been developed for ET -based BMPs.
R.D. OLSON DEVELOPMENT 24 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
EVAPOTRANSPIRATION
7_7HSCs,
Name
Included?
see Section IV.3.1
--
Surface -based infiltration BMPs
❑
--
Biotreatment BMPs, see Section VI.3.4
❑
Other:
❑
Harvest and use (aka. Rainwater Harvesting) BMPs are LID BMPs that capture and store storm water runoff for later use. These BMPs are engineered to store a specified volume of water and have no design surface discharge until this volume is exceeded. Harvest and use BMPs include both above -ground and below -ground cisterns. Examples of uses for harvested water include irrigation, toilet and urinal flushing, vehicle washing, evaporative cooling, industrial processes and other non -potable uses.
HARVEST & REUSE / RAINWATER HARVESTING
ID
Name
Included?
HU-1
Above -ground cisterns and basins
❑
HU-2
Underground detention
❑
--
Other:
❑
Since infiltration BMPs will be utilized on -site, evapotranspiration and harvest and reuse BMPs were not evaluated for the project.
IV.3.4 Biotreatment BMPs
Biotreatment BMPs are a broad class of LID BMPs that reduce storm water volume to the maximum extent practicable, treat storm water using a suite of treatment mechanisms characteristic of biologically active systems, and discharge water to the downstream storm drain system or directly to receiving waters.
Treatment mechanisms include media filtration (though biologically -active media), vegetative filtration (straining, sedimentation, interception, and stabilization of particles resulting from shallow flow through vegetation), general sorption processes (i.e., absorption, adsorption, ion -exchange, precipitation, surface complexation), biologically -mediated transformations, and other processes to address both suspended and dissolved constituents. Examples of biotreatment BMPs include bioretention with underdrains, vegetated swales, constructed wetlands, and proprietary biotreatment systems.
R.D. OLSON DEVELOPMENT 25 BEST MANAGEMENT PRACTICES
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
BIOTREATMENT
ID
Name
Included?
Bioretention with underdrains
❑
BIO-1
Storm Water planter boxes with underdrains
❑
Rain gardens with underdrains
❑
1310-5
Constructed wetlands
❑
1310-2
Vegetated swales
❑
1310-3
Vegetated filter strips
❑
BIO-7
Proprietary vegetated biotreatment systems
❑
BIO-4
Wet extended detention basin
❑
BIO-6
Dry extended detention basins
❑
--
Other:
❑
Since infiltration BMPs will be utilized on -site, biotreatment BMPs were not evaluated for the project.
IV.3.5 Hydromodification Control BMPs
Not applicable. Refer to Section 11.3 for further information.
IV.3.6 Regional/Sub-Regional LID BMPs
Not applicable. LID BMPs will be utilized for water quality treatment on -site in accordance with the MS4 Permit hierarchy identified at the beginning of this Section.
IV.3.7 Treatment Control BMPs
Treatment control BMPs can only be considered if the project conformance analysis indicates that it is not feasible to retain the full design capture volume with LID BMPs.
TREATMENT CONTROL BMPs
ID
Name
Included?
TRT-1
Sand Filters
❑
R.D. OLSON DEVELOPMENT 26 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
TREATMENT CONTROL BMPs
77ID
Name
Included?
TRT-2
Cartridge Media Filter
❑
PRE-1
Hydrodynamic Separation Device
❑
PRE-2
Catch Basin Insert
❑
Other: Roof Drain Filters (Pre-treatment)
While treatment control BMPs will not be used as the primary water quality treatment on site, treatment control BMPs (roof drain media filters) will be incorporated as pre-treatment prior to low flow runoff entering the proposed infiltration galleries. Treatment of this level would be consistent with the treatment standards required in the TGD for removal of pollutants prior to discharge into the infiltration systems.
Roof drain filters are designed to capture sediment, trash, debris, suspended solids, oils & grease and other pollutants. Removal of these pollutants also reduces the amount of oxygen demanding substances within the runoff. These filters are easily adapted into roof drains of varying sizes and drain types, have customizable media blends, and are easily removed for maintenance. Further details and locations of the filters are provided in Section VI.
R.D. OLSON DEVELOPMENT 27 BEST MANAGEMENT PRACTICES
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
IV.3.8 Non -Structural Source Control BMPs
The table below indicates all BMPs to be incorporated in the project. For those designated as not applicable (N/A), a brief explanation why is provided.
NON-STRUCTURAL SOURCE CONTROL BMPs
ID
Name
Included?
Not
If Not Applicable, Provide
Applicable?
Brief Reason
N1
Education for Property Owners,
❑
®
Non-residential development
Tenants and Occupants
N2
Activity Restrictions
®
❑
N3
Common Area Landscape
®
❑
Management
N4
BMP Maintenance
®
❑
N5
Title 22 CCR Compliance
El®
Non industrial development
(How development will comply)
N6
Local Water Quality Permit
❑
®
The City of Newport Beach
does issue
Compliance
not water quality
permits.
N7
Spill Contingency Plan
❑
®
Non -industrial development
N8
Underground Storage Tank
❑
®
No USTs proposed
Compliance
N9
Hazardous Materials
❑
®
Hazardous materials will not
Disclosure Compliance
be stored on -site.
N10
Uniform Fire Code
❑
®
Hazardous materials will not
Implementation
be stored on -site.
N 11
Common Area Litter Control
®
❑
N12
Employee Training
®
❑
N13
Housekeeping of Loading
❑
®
No loading docks are
Docks
proposed.
N 14
Common Area Catch Basin
®
❑
Inspection
N 15
Street Sweeping Private Streets
❑
❑
and Parking Lots
N16
Retail Gasoline Outlets
❑
®
No retail gasoline outlets are
proposed.
R.D. OLSON DEVELOPMENT 28 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
N2, Activity Restrictions
R.D. Olson Development shall develop ongoing activity restrictions that include those that have the potential to create adverse impacts on water quality. Activities include, but are not limited to: handling and disposal of contaminants, fertilizer and pesticide application restrictions, litter control and pick-up, and vehicle or equipment repair and maintenance in non -designated areas, as well as any other activities that may potentially contribute to water pollution.
N3, Common Area Landscape Management
Management programs will be designed and implemented by the Owner/Operator to maintain all the common areas within the project site. These programs will cover how to reduce the potential pollutant sources of fertilizer and pesticide uses, utilization of water -efficient landscaping practices and proper disposal of landscape wastes by the owner/developer and/or contractors. Programs shall be implemented on an ongoing basis, and maintained on a monthly basis at a minimum.
N4 BMP Maintenance
The Owner/Operator will be responsible for the implementation and maintenance of each applicable non-structural BMP, as well as scheduling inspections and maintenance of all applicable structural BMP facilities through its staff, landscape contractor, and/or any other necessary maintenance contractors.
Details on BMP maintenance are provided in Section V of this WQMP, and the O&M Plan is included in Appendix D.
N 11, Common Area Litter Control
The Owner/Operator will be responsible for performing trash pickup and sweeping of littered common areas on a weekly basis or whenever necessary. Responsibilities will also include noting improper disposal materials by the public and reporting such violations for investigation.
N72, Employee Training
All employees of the Owner/Operator and any contractors will require training to ensure that employees are aware of maintenance activities that may result in pollutants reaching the storm drain. Training will include, but not be limited to, spill cleanup procedures, proper waste disposal, housekeeping practices, etc. Training shall be performed upon hire and annually thereafter.
N74, Common Area Catch Basin Inspection
All privately -maintained on -site catch basin inlets and drainage facilities shall be inspected and maintained by the Owner/Operator at least once a year, priorto the rainy season, no laterthan October 1 st of each year. The City of Newport Beach shall be responsible for inspection and maintenance of all public catch basins and drainage facilities associated with the project.
N75, Street Sweeping Private Streets and Parking Lots
The Owner/Operator shall be responsible for sweeping all on -site drive aisles and uncovered parking areas within the project on a quarterly basis. The applicant shall not spray down or wash down the parking lot or surrounding sidewalks unless the water used is directed through the sanitary sewer system or a filtered drain. No car washing shall be permitted in the parking lot.
R.D. OLSON DEVELOPMENT 29 BEST MANAGEMENT PRACTICES
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
IV.3.9 Structural Source Control BMPs
The table below indicates all BMPs to be incorporated in the project. For those designated as not applicable (N/A), a brief explanation why is provided.
STRUCTURAL SOURCE CONTROL BMPs
ID
Name
Included?
Not
If Not Applicable, Provide
Applicable?
Brief Reason
S1
Provide storm drain system
®
❑
SD-13
stenciling and signage
S2
Design and construct outdoor
❑
®
No outdoor storage areas
SD 34
material storage areas to
are proposed.
reduce pollution introduction
S3
Design and construct trash and
SD-32
waste storage areas to reduce
®
❑
pollution introduction
Use efficient irrigation systems
S4
& landscape design, water
❑
❑
SD-12
conservation, smart controllers,
and source control
S5
Protect slopes and channels
❑
®
There are no slopes or
and provide energy dissipation
channels on the project site.
S6
Properly Design: Dock areas
❑
®
No loading docks are
SD-31
proposed.
S7
Properly Design: Maintenance
❑
®
No maintenance bays are
SD-31
bays
proposed.
S8
Properly Design: Vehicle wash
❑
®
No vehicle wash areas are
SD-33
areas
proposed.
S9
Properly Design: Outdoor
❑
®
No outdoor material storage
SD-36
processing areas
areas are proposed.
S10
Properly Design: Equipment
❑
®
No equipment wash areas
wash areas
are proposed.
S1 1
Properly Design: Fueling areas
❑
®
No fueling areas are
SD-30
proposed.
S12
Properly Design: Hillside
❑
®
Project is not located on a
SD-10
landscaping
hillside.
Properly Design: Wash water
S13
control for food preparation
®
❑
areas
S14
Properly Design: Community
❑
®
No community car wash
car wash racks
racks are proposed.
R.D. OLSON DEVELOPMENT 30 BEST MANAGEMENT PRACTICES
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
S 1 /SD- 7 3, Provide storm drain system stenciling and sig ncnaage The phrase "NO DUMPING! DRAINS TO OCEAN", or an equally effective phrase approved by the City, will be stenciled on all major storm drain inlets within the project site to alert the public to the destination of pollutants discharged into storm water. Stencils shall be in place prior to release of certificate of occupancy. Stencils shall be inspected for legibility on an annual basis and re -stenciled as necessary.
S3/SD-32, Design and construct trash and waste storage areas to reduce pollution introduction All trash and waste shall be stored in containers that have lids or tarps to minimize direct precipitation into the containers. One trash enclosure will be located in the southeast corner of the site. The trash storage areas will be designed to City standards, and will be walled, roofed, have gates and proper drainage per City standards.
S4/SD-12, Use efficient irrigation systems & landscape design, water conservation, smart controllers, and source control
The Owner/Operator will be responsible for the installation and maintenance of all common landscape areas utilizing similar planting materials with similar water requirements to reduce excess irrigation runoff. The Owner/Operator will be responsible for implementing all efficient irrigation systems for common area landscaping including, but not limited to, provisions for water sensors and programmable irrigation cycles. This includes smart timers, rain sensors, and moisture shut-off valves. The irrigation systems shall be in conformance with water efficiency guidelines. Systems shall be tested twice per year, and water used during testing/flushing shall not be discharged to the storm drain system.
S13, Properly Design: Wash water control for food preparation areas All wash water from food prep areas will be controlled and proper staff training conducted by the site operator. Food preparation facilities shall meet all health and safety, building and safety and any other applicable regulations, codes requirements, including installation of a grease interceptor where required. Sinks shall be contained with sanitary sewer connections for disposal of wash waters containing kitchen and food wastes.
IV.4 ALTERNATIVE COMPLIANCE PLAN
IV.4.1 Water Quality Credits
Local jurisdictions may develop a water quality credit program that applies to certain types of development projects after they first evaluate the feasibility of meeting LID requirements on -site. If it is not feasible to meet the requirements for on -site LID, project proponents for specific project types can apply credits that would reduce project obligations for selecting and sizing other treatment BMPs or participating in other alternative programs.
WATER QUALITY CREDITS
Credit
Applicable?
Redevelopment projects that reduce the overall impervious footprint of the project site. ❑
R.D. OLSON DEVELOPMENT 31 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
WATER QUALITY CREDITS
Credit
Applicable?
Brownfield redevelopment, meaning redevelopment, expansion, or reuse of real property which may be complicated by the presence or potential presence of hazardous ❑
substances, pollutants or contaminants, and which have the potential to contribute to adverse ground or surface water quality if not redeveloped.
Higher density development projects which include two distinct categories (credits can only be taken for one category): those with more than seven units per acre of development (lower credit allowance); vertical density developments, for example, ❑
those with a Floor to Area Ratio (FAR) of 2 or those having more than 18 units per acre (greater credit allowance)
Mixed use development, such as a combination of residential, commercial, industrial, office, institutional, or other land uses which incorporate design principles that can demonstrate environmental benefits that would not be realized through single use ❑
projects (e.g. reduced vehicle trip traffic with the potential to reduce sources of water or air pollution).
Transit -oriented developments, such as a mixed use residential or commercial area designed to maximize access to public transportation; similar to above criterion, but where the development center is within one half mile of a mass transit center (e.g. bus, ❑
rail, light rail or commuter train station). Such projects would not be able to take credit for both categories, but may have greater credit assigned Redevelopment projects in an established historic district, historic preservation area, or similar significant city area including core City Center areas (to be defined through ❑
mapping).
Developments with dedication of undeveloped portions to parks, preservation areas ❑
and other pervious uses.
Developments in a city center area.
❑
Developments in historic districts or historic preservation areas. ❑
Live -work developments, a variety of developments designed to support residential and vocational needs together — similar to criteria to mixed use development; would not be ❑
able to take credit for both categories.
In -fill projects, the conversion of empty lots and other underused spaces into more ❑
beneficially used spaces, such as residential or commercial areas.
Not applicable. Water quality credits will not be applied for the project. LID BMPs will be utilized for water quality treatment on -site in accordance with the MS4 Permit hierarchy identified at the beginning of this Section.
IV.4.2 Alternative Compliance Plan Information
Not applicable. LID BMPs will be utilized for water quality treatment on -site in accordance with the MS4 Permit hierarchy identified at the beginning of this Section.
R.D. OLSON DEVELOPMENT 32 BEST MANAGEMENT PRACTICES
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
SECTION V INSPECTION/MAINTENANCE RESPONSIBILITY
FOR BMPs
It has been determined that R.D. Olson Development shall assume all BMP inspection and maintenance responsibilities for the Lido House Hotel project.
Contact Name:
Anthony Wrzosek
Title:
Vice President, Planning & Development
Company:
R.D. Olson Development
Address:
2955 Main Street, Third Floor, Irvine, California 92614 Phone:
949.574.8500
Email:
[email protected]
Should the maintenance responsibility be transferred at any time during the operational life of Lido House Hotel, such as when an HOA or POA is formed for a project, a formal notice of transfer shall be submitted to the City of Newport Beach at the time responsibility of the property subject to this WQMP is transferred. The transfer of responsibility shall be incorporated into this WQMP as an amendment.
R.D. Olson Development shall verify BMP implementation and ongoing maintenance through inspection, self -certification, survey, or other equally effective measure. The certification shall verify that, at a minimum, the inspection and maintenance of all structural BMPs including inspection and performance of any required maintenance in the late summer / early fall, prior to the start of the rainy season. A form that may be used to record implementation, maintenance, and inspection of BMPs is included in Appendix D.
The City of Newport Beach may conduct verifications to assure that implementation and appropriate maintenance of structural and non-structural BMPs prescribed within this WQMP is taking place at the project site. The Owner/Operator shall retain operations, inspections and maintenance records of these BMPs and they will be made available to the City or County upon request. All records must be maintained for at least five (5) years after the recorded inspection date for the lifetime of the project.
Long-term funding for BMP maintenance will be provided by R.D. Olson Development.
The Operations and Maintenance (O&M) Plan can be found in Appendix D.
Any waste generated from maintenance activities will be disposed of properly. Wash water and other waste from maintenance activities is not to be discharged or disposed of into the storm drain system.
Clippings from landscape maintenance (i.e. prunings) will be collected and disposed of properly off - site, and will not be washed into the streets, local area drains/conveyances, or catch basin inlets.
The table below highlights the BMP inspection and maintenance responsibilities. All BMPs shall be operated, monitored, and maintained for the life of the project and at a minimum, all structural BMPs R.D. OLSON DEVELOPMENT 33 BMP INSPECTION & MAINTENANCE
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
shall be inspected, cleaned -out, and where necessary, repaired at the following minimum frequencies:
(1) prior to October 15th each year; (2) during each month between October 15th and April 15th of each year and, (3) at least twice during the dry season.
R.D. OLSON DEVELOPMENT 34 BMP INSPECTION & MAINTENANCE
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL DUNE 1 4, 2021
BMP INSPECTION & MAINTENANCE RESPONSIBILITY MATRIX
7E
BMP
Inspection/Maintenance Activities
Minimum
Responsible
Frequency
Party
INFILTRATION BMPs
Keep pavement clean and free from debris and
sediment. Minor maintenance should be conducted
monthly consists of vacuum cleaning surface using a
commercially available sweeper. If routine cleaning
does not restore infiltration rates, then more invasive R.D. Olson
INF-6
Pervious Pavement
maintenance should occur as needed but no more
Monthly
Development
than every 15-20 years, which may involve the
following: Reconstruction of part of or entire pervious surface, lifting area and inspection of internal
material, and replacement of surface materials,
geotextiles, or sub -surface layers.
Infiltration gallery should be inspected post -
construction and after first major storm event for
damages. Afterwards, maintenance should occur
semi-annually, at the beginning and end of rainy
season, for erosion or visible damage. Inspection and
R.D. Olson
INF-7
Gravel Bed Infiltration Gallery
maintenance of clogging and gravel bed should
2x per year
Development
occur on an annual basis. Presence of excess ponded
water or clogging may require replacement of gravel
as needed. Removal of surface trash & debris shall
be performed in conjunction with routine
maintenance activities, weekly at a minimum.
PRE-TREATMENT
CONTROL BMPs
R.D. OLSON DEVELOPMENT 35 BMP INSPECTION & MAINTENANCE
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL DUNE 1 4, 2021
BMP INSPECTION & MAINTENANCE RESPONSIBILITY MATRIX
BMP
Inspection/Maintenance Activities
Minimum
Responsible
Frequency
Party
Manufacturer recommends inspecting and serviced at
a minimum of three times (3x) per year. Filters should
be serviced and maintained when debris and
pollutant accumulations exceed no more than 80% of
Roof Drain Filters
filter's capacity. Media shall be replaced when outer
3x per year
R.D. Olson
surface of media is no more than 50% coated with
Development
contaminants, typically once per year at a minimum.
Transport all debris, trash, organics and sediments to
approved facility for disposal in accordance with
local and state requirements.
NON-STRUCTURAL SOURCE CONTROL BMPs
The owner and/or developer will prescribe activity
restrictions to protect surface water quality, through
R.D. Olson
N2
Activity Restrictions
lease terms or other equally effective measure, for the Ongoing
Development
property. Restrictions include, but are not limited to, prohibiting vehicle maintenance or vehicle washing.
R.D. OLSON DEVELOPMENT 36 BMP INSPECTION & MAINTENANCE
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL DUNE 1 4, 2021
BMP INSPECTION & MAINTENANCE RESPONSIBILITY MATRIX
17 BMP
Inspection/Maintenance Activities
Minimum
Responsible
Frequency
Party
Maintenance shall be consistent with City
requirements. Fertilizer and/or pesticide usage shall
be consistent with County Management Guidelines
for Use of Fertilizers (OC DAMP Section 5.5) as well
as local requirements. Maintenance includes
mowing, weeding, and debris removal on a weekly
N3
Common Area Landscape
basis. Trimming, replanting, and replacement of
Monthly
R.D. Olson
Management
mulch shall be performed on an as -needed basis to
Development
prevent exposure of erodible surfaces. Trimmings,
clippings, and other landscape wastes shall be
properly disposed of in accordance with local
regulations. Materials temporarily stockpiled during
maintenance activities shall be placed away from
water courses and storm drain inlets.
Maintenance of structural BMPs implemented at the
project site shall be performed at the frequency
N4
BMP Maintenance
prescribed in the O&M Plan included in this WQMP
Ongoing
R.D. Olson
(Appendix D). Records of inspections and BMP
Development
maintenance shall be kept by the owner/developer
and shall be available for review upon request.
Litter patrol, violations investigations, reporting and N1 1
Common Area Litter Control
other litter control activities shall be performed on a Weekly
R.D. Olson
weekly basis and in conjunction with routine
Development
maintenance activities.
Educate all new employees/ managers on storm
water pollution prevention, particularly good
R.D. Olson
N 12
Employee Training
housekeeping practices, prior to the start of the rainy Annually
Development
season (October 1). Refresher courses shall be
conducted on an as needed basis.
R.D. OLSON DEVELOPMENT 37 BMP INSPECTION & MAINTENANCE
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL DUNE 1 4, 2021
BMP INSPECTION & MAINTENANCE RESPONSIBILITY MATRIX
BMP
Inspection/Maintenance Activities
Minimum
Responsible
Frequency
Party
Catch basin inlets and other drainage facilities shall
R.D. Olson
Common Area Catch Basin
be inspected after each storm event and once per
Development
N14
Inspection
year. Storm drain inlets and other drainage facilities
Annually
(private)
shall be cleaned prior to the rainy season, by
City of Newport
October 1 each year.
Beach (public)
Street Sweeping Private Streets and
Drive aisles and parking areas must be swept at least
R.D. Olson
N 15
Parking Lots
quarterly (every 3 months), including prior to the start Weekly
Development
of the rainy season (October 1).
STRUCTURAL SOURCE CONTROL BMPs
Storm drain stencils shall be inspected for legibility, at R.D. OlsonDevelopment
S1
Provide storm drain system
minimum, once prior to the storm season, no later
Annually
(private)
SD-13
stenciling and signage
than October 1 each year. Those determined to be
City of Newport
illegible will be re -stenciled as soon as possible.
Beach (public)
S3
Design and construct trash and
Sweep trash area at least once per week and before
R.D. Olson
SD-32
waste storage areas to reduce
October 1 st each year. Maintain area clean of trash
Weekly
Development
pollution introduction
and debris at all times.
In conjunction with routine maintenance activities,
verify that landscape design continues to function
properly by adjusting properly to eliminate overspray
R.D. Olson
Use efficient irrigation systems &
to hardscape areas, and to verify that irrigation
Development
p
S4
landscape design, water
timing and cycle lengths are adjusted in accordance
(private)
SD-12
conservation, smart controllers,
with water demands, given time of year, weather, and
2x per year
and source control
day or night time temperatures. System testing shall
City of Newport
occur twice per year. Water from testing/flushing
Beach (public)
shall be collected and properly disposed to the sewer
system and shall not discharge to the storm drain
system.
R.D. OLSON DEVELOPMENT 38 BMP INSPECTION & MAINTENANCE
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL DUNE 1 4, 2021
BMP INSPECTION & MAINTENANCE RESPONSIBILITY MATRIX
BMP
Inspection/Maintenance Activities
Minimum
Frequency
Responsible
Party
Inspection / maintenance shall occur at least once in
the late summer / early fall, prior to the start of the rainy season. Maintenance includes using dry
Properly Design: Wash water
cleanup methods for cleaning (i.e., sweeping),
R.D. Olson
Sl 3
control for food preparation areas
keeping spill kits on -site and stocked, properly storing Annually
Development
and hauling used oil and grease, and disposing wash
water to sanitary sewer. Wash water shall not
discharge to storm drain system. Mats shall be
cleaned indoors or with dry cleaning methods only.
R.D. OLSON DEVELOPMENT 39 BMP INSPECTION & MAINTENANCE
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (WWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
SECTION VI SITE PLAN AND DRAINAGE PLAN
The exhibits provided in this section are to illustrate the post construction BMPs prescribed within this WQMP. Drainage flow information of the proposed project, such as general surface flow lines, concrete or other surface drainage conveyances, and storm drain facilities are also depicted. All structural source control and treatment control BMPs are shown as well.
EXHIBITS
■ Vicinity Map
■ WQMP Exhibit
■ Typical Cross Sections
BMP DETAILS & FACT SHEETS
■ Pervious Pavement (INF-6)
■ Underground Infiltration (INF-7)
■ Pre-treatment Roof Drain Filters
R.D. OLSON DEVELOPMENT 40 SITE PLAN & DRAINAGE PLAN
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
R.D. OLSON DEVELOPMENT 41 SITE PLAN & DRAINAGE PLAN
PRELIMINARY AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
SECTION VII EDUCATIONAL MATERIALS
The educational materials included in this WQMP are provided to inform people involved in future uses, activities, or ownership of the site about the potential pitfalls associated with careless storm water management. "The Ocean Begins at Your Front Door' provides users with information about storm water that is/will be generated on site, what happens when water enters a storm drain, and its ultimate fate, discharging into the ocean. Also included are activities guidelines to educate anyone who is or will be associated with activities that have a potential to impact storm water runoff quality, and provide a menu of BMPs to effectively reduce the generation of storm water runoff pollutants from a variety of activities. The educational materials that may be used forthe proposed project are included in Appendix C of this WQMP and are listed below.
EDUCATION MATERIALS
Residential Materials
( http://www.ocwatersheds.com)
Check If
Attached
Business Materials
( http://www.ocwatersheds.com)
Check If
Attached
The Ocean Begins at Your Front Door
®
Tips for the Automotive Industry
❑
Tips for Car Wash Fund-raisers
❑
Tips for Using Concrete and Mortar
❑
Tips for the Home Mechanic
❑
Tips for the Food Service Industry
Homeowners Guide for Sustainable
Water Use
❑
Proper Maintenance Practices for Your
Business
Household Tips
❑
Other Materials
( http://www.cabmphandbooks.com)
Check If
Attached
Proper Disposal of Household
Hazardous Waste
El( http://www.ocwatersheds.com)
Recycle at Your Local Used Oil
Collection Center (North Count)
❑
DF-1 Drainage System Operation &
Maintenance
Recycle at Your Local Used Oil
Collection Center (Central Count)
®
IC 3 Building Maintenance
Recycle at Your Local Used Oil
Collection Center (South Count)
❑
IC 7 Landscape Maintenance
Tips for Maintaining Septic Tank Systems
❑
IC-16 Pool & Fountain Cleaning
Responsible Pest Control
®
IC-22 Eating & Drinking Establishments
Sewer Spill
®
SC-1 1 Spill Prevention, Control, Cleanup
❑
Tips for the Home Improvement Projects
❑
SC-34 Waste Handling & Disposal
❑
Tips for Horse Care
❑
SC-41 Building & Grounds Maintenance
Tips for Landscaping and Gardening
®
SC-43 Parking/Storage Area
Maintenance
Tips for Pet Care
❑
SD-10 Site Design & Landscape Planning
Tips for Pool Maintenance
®
SD-1 1 Roof Runoff Controls
❑
Tips for Residential Pool, Landscape and
Hardsca e Drains
❑
SD 12 Efficient Irrigation
Tips for Projects Using Paint
❑
SD-13 Storm Drain Signage
Tips for Protecting Your Watershed
❑
SD-31 Maintenance Bays & Docs
❑
Other: Children's Brochure
❑
SD-32 Trash Storage Areas
R.D. OLSON DEVELOPMENT 42 EDUCATIONAL MATERIALS
PRELIMINARY .AMENDED WATER QUALITY MANAGEMENT PLAN (PWQMP) LIDO HOUSE HOTEL JUNE 14, 2021
APPENDICES
Appendix ............................................................................................. Supporting Calculations Appendix B.............................................................................. Notice of Transfer of Responsibility Appendix C.................................................................................................Educational Materials Appendix D................................................................. BMP Maintenance Supplement / O&M Plan Appendix E.............................................................................................. Conditions of Approval Appendix F................................................................................................ Infiltration Test Results R.D. OLSON DEVELOPMENT 43 APPENDICES
Lido House Hotel
EIR Addendum No. 2
Attachment 3
Vehicle Miles Traveled Assessment
47 June 2022
TECHNICAL MEMORANDUM
To: Mr. Eddie Torres Date: November 22, 2021
Michael Baker International
From: Keil D. Maberry, P.E., Principal LLG 2.21.4470.1
Linscott, Law and Greenspan, Engineers Ref:
Vehicle Miles Traveled (VMT) Assessment for the Proposed Subject: Lido House Hotel Expansion Project, Newport Beach As requested, Linscott, Law & Greenspan, Engineers (LLG) is pleased to submit this Vehicle Miles Traveled (VMT) Assessment Technical Memorandum for the proposed Lido House Hotel Expansion Project (herein after referred to as Project) in the City of Newport Beach, California. This Technical Memorandum presents the VMT screening criteria and applies the criteria, accordingly, for the proposed Lido House Hotel Environmental Impact Report (EIR) Addendum No. 2. It should be noted that the approach and methodology outlined in this Technical Memorandum is based on the City of Newport Beach Implementation Procedures for the California Environmental Quality Act (March 2020) and is generally consistent with the Technical Advisory for Evaluating Transportation Impacts In CEQA, published by the Governor's Office of Planning and Research (OPR), December 2018 (OPR Technical Advisory), which provides additional detail on the language and approach described in this Technical Memorandum.
On December 28, 2018, the California Natural Resources Agency adopted revised CEQA Guidelines. Among the changes to the guidelines was the removal of vehicle delay and LOS from consideration for transportation impacts under CEQA. With the adopted guidelines, transportation impacts are to be evaluated based on a project's effect on vehicle miles traveled. Lead agencies are allowed to continue using their current impact criteria, or to opt into the revised transportation guidelines. However, the new guidelines must be used starting July 1, 2020, as required in CEQA section 15064.3. The City of Newport Beach has adopted thresholds as contained in the City of Newport Beach Traffic Impact Analysis Guidelines (August 2020).
In late 2019, State courts stated that under section 21099, subdivision (b)(2), existing law is that "automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment" under CEQA, except for roadway capacity projects.
As a result of SB 743, the new metric in the CEQA guidelines for transportation impacts is VMT per capita. The legislative intent of SB 743 is to balance the needs of congestion management with statewide goals for infill development, promotion of public health through active transportation, and reduction of greenhouse gas emissions.
Engineers & Planners
Traffic
Transportation
Parking
Linscott, Law &
Greenspan, Engineers
2 Executive Circle
Suite 250
Irvine, CA 92614
949.825.6175 T
949.825.6173 F
wvvw.Ilgengineers.com
Pasadena
Irvine
San Diego
Woodland Hills
Philip M. Linscatt, PE 11924-20001
William A. Law, PE (1921.2018)
Jack M. Greenspan. PE met.1
Paul W. Wilkinson, PE IRetl
John P. Keating, PE
David S. Shender, PE
John A. Boarman, PE
Clare M. Look -Jaeger, PE
Richard E. Barretto, PE
Keil D. Maberry, PE
Walter B. Musial, PE
An L62WB Company Founded 1956
Mr. Eddie Torres
November 22, 2021
PROJECT DESCRIPTION
The Project site is currently developed with the Lido House Hotel, which consists of a four-story, 103,470 square -foot (SF) hotel including 130 hotel rooms, meeting rooms, accessory retail spaces, a restaurant, lobby bar, rooftop bar, guest pool, and other recreational areas. A pedestrian plaza, landscaped areas, and other amenities complement the hotel along Newport Boulevard and 32nd Street. Figure 1, attached, presents a Vicinity Map that illustrates the general location of the Project site and surrounding street system while Figure 2 presents an existing site aerial.
The proposed Project consists of requesting entitlements to increase the maximum allowed gross floor area of the hotel from 103,470 SF to 118,573 SF. The additional 15,103 SF would allow development of five (5) new hotel cottages and slightly expand the existing hotel building. The project would also incorporate the adjacent parcel, currently occupied by Lido Fire Station No. 2, by demolishing the fire facility to accommodate additional on -site parking. Figure 3 presents the proposed site plan for the Project, prepared by WATG. As shown, the Project will construct five (5) new cottages adjacent to the existing cottages on the southeast corner of the existing hotel and reconfigure the parking lot, accordingly.
PROJECT SCREENING CRITERIA
Under the VMT methodology, screening is used to determine if a project will be required to conduct a detailed VMT analysis. Based on the City's Implementation Procedures, there are six (6) types of screening that the lead agencies can apply to effectively screen projects from project -level assessment. As such, the following guidance summarizes the potential project screening, developed for the City of Newport Beach:
Transit Priority Area (TPA) Screening
As noted previously, the CEQA Guidelines were amended to include section 15064.3, "Determining the Significance of Transportation Impacts." Subsection (b)(1) states in part:
"Generally, projects within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact. " Pursuant to the statute, development projects may be screened out of VMT analysis based on proximity to certain transit facilities due to the presumption of less than significant impacts. The Technical Advisory reiterates this screening criteria, but also highlights certain project -specific or location -specific characteristics which may indicate the project will still generate "significant levels of VMT", even when located within one-half mile of a major transit stop or a stop along a high -quality transit N:\4400\2214470 - Lido House Hotel Expansion, Newport Beach\Report\4470 - Lido House Hotel Expansion VMT Assessment - Newport Beach, 11-22-21.docx
Mr. Eddie Torres
November 22, 2021
corridor. These characteristics relate to the project's floor area ratio (FAR), parking supply, and number of dwelling units, as well as consistency with the applicable Sustainable Communities Strategy (SCS). If the project has any characteristics which indicate that the presumption of less than significant impacts as stated in the CEQA Guidelines may not be appropriate, the OPR Technical Advisory recommends that the project should not be screened out of further VMT analysis.
The City of Newport Beach criteria is consistent with the OPR Technical Advisory and also relies on the OCTA screening tool to determine whether the Project parcel(s) is located within a TPA, as shown in Figure 1, (attached) of the City of Newport SB 743 VMT Implementation Guide (April 6, 2020), which was utilized to determine whether this Project can be screened out based on the TPA criteria.
Based on the above, the proposed Project will screen -out under this criteria because the Project is located within the TPA defined by Figure 1 of the City of Newport SB 743 VMT Implementation Guide (April 6, 2020) and the proposed Project has an FAR greater than 0.75.
Low VMT Area Screening
An additional screening methodology is provided for residential and office land use projects. Lead agencies may prepare maps based on a regional travel demand model or travel survey data to illustrate areas that are currently below the selected VMT threshold. OPR reasons that if a project has similar characteristics to the existing area (i.e., density, mix of uses, transit service, etc.), it will tend to exhibit similar VMT.
Therefore, if a project is fully located within an area identified as having a below - threshold VMT, it may be presumed to also have less than significant VMT impacts and be screened out from requiring a detailed VMT analysis.
The City of Newport Beach utilizes the OCTA screening tool, which indicates the appropriate VMT values for the Project TAZ as compared to the jurisdictional average and was utilized to determine whether this Project can be screened out based on the low VMT-generating area criteria (lower than 85% of the countywide average VMT).
Based on the above, the proposed Project will not screen -out under this criteria since it is not located within a low VMT-generating area (TAZ 1405) based on VMT/capita or VMT/employee as shown in Figure 2 and Figure 3, respectively, of the City of Newport SB 743 VMT Implementation Guide (April 6, 2020).
Local Serving
OPR provides additional recommendations on when the presumption of less than significant impacts may be appropriate, in addition to the formally recommended screening criteria described above. For instance, in the discussion regarding retail N:\4400\2214470 - Lido House Hotel Expansion, Newport Beach\Report\4470 - Lido House Hotel Expansion VMT Assessment - Newport Beach, 11-22-21.docx
Mr. Eddie Torres
November 22, 2021
projects, the OPR Technical Advisory advises lead agencies that because local serving retail projects tend to improve retail destination proximity, shorten trips, and reduce VMT, they may be presumed to have less than significant impacts. Agencies may choose to define what constitutes local serving retail in their jurisdiction, although OPR suggests a threshold size of 50,000 square feet or less. The City of Newport Beach guidelines indicate that locally serving retail spaces of less than 50,000 SF are considered to have a less than significant impact on transportation/traffic.
Based on the above, the proposed Project will not screen -out under this criteria since the Project is not considered retail.
Affordable Housing Units
The City of Newport Beach guidelines indicate that Land Use Projects with a high level of affordable housing units, as determined by Community development Department, are considered to have a less than significant impact on transportation/traffic.
Based on the above, the proposed Project will not screen -out under this criteria since the Project is not considered affordable housing.
Project Trip Generation
The City of Newport Beach guidelines indicate that Land Use Projects that generate a net increase of 300 or less daily trips, utilizing the most current Institute of Transportation Engineers (ITE) Trip Generation Manual are considered to have a less than significant impact on transportation/traffic. Based on ITE Trip Generation 11 th Edition (2021): ITE Land Use Code 310 — Hotel, the proposed Project is forecast to generate 40 daily trips.
Based on the above, the proposed Project will screen -out under this criteria since the Project is forecast to generate less than 300 daily trips.
Institutional/Government Land Use
The City of Newport Beach guidelines indicate that Institutional/Government and public service uses such as police stations, fire stations, community centers, refuse centers would not require CEQA VMT analysis.
Based on the above, the proposed Project will not screen -out under this criteria since the Project is not considered an Institutional/Government or public service use.
N:\4400\2214470 - Lido House Hotel Expansion, Newport Beach\Report\4470 - Lido House Hotel Expansion VMT Assessment - Newport Beach, 11-22-21.docx
Mr. Eddie Torres
November 22, 2021
CONCLUSION
Consistent with the City of Newport Beach Implementation Procedures for the California Environmental Quality Act (March 2020) and City of Newport SB 743 VMT Implementation Guide (April 6, 2020), the proposed Lido House Hotel Expansion Project will result in a less -than -significant transportation/traffic impact based on the City of Newport Beach VMT Transit Priority Area (TPA) [See Figure I] and Trip Generation screening criteria (Projects generating less than 300 daily vehicle trips).
* * * * * * * * * * *
We appreciate the opportunity to provide this Technical Memorandum. Should you have any questions regarding the memorandum, please contact us at (949) 825-6175.
Attachments
Cc: File
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Li
No. 1802
'k Exp6/30/23
9F TRAFFlC F�¢�~Y
O� CAS
N:\4400\2214470 - Lido House Hotel Expansion, Newport Beach\Report\4470 - Lido House Hotel Expansion VMT Assessment - Newport Beach, 11-22-21.docx
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FIGURE 1
VICINITY MAP
LIDO HOUSE HOTEL EXPANSION, NEWPORT BEACH
SOURCE: GOOGLE
KEY FIGURE 2
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GREENSPAN SCALE
EXISTING SITE AERIAL
LIDO HOUSE HOTEL EXPANSION, NEWPORT BEACH
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FIGURE 3
PROPOSED SITE PLAN
LIDO HOUSE HOTEL EXPANSION, NEWPORT BEACH
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0 2000 4000
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SOURCE: OCTA (11/2019); SCAG (6/2019)
FIGURE 1
SB 743 Vehicle Miles Traveled Implementation Guide
Newport Beach Transit Priority Areas
I:\CNB1702.02\GIS\MXD\City_NewportBeach.mxd (3/31/2020)
Attachment 6
Resolution No. 2022-77, Approving the General Plan Amendment 16-57
RESOLUTION NO. 2022- 77
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING A
GENERAL PLAN AMENDMENT FOR THE LIDO HOUSE
HOTEL LOCATED AT 3300 NEWPORT BOULEVARD
AND 475 32ND STREET (PA2020-068)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, an application was filed by R.D. Olson Development ("Applicant") with respect to property located at 3300 Newport Boulevard and 475 32nd Street as legally described in Exhibit "A," which is attached hereto and incorporated by reference ("Property");
WHEREAS, on September 9, 2014, the City Council approved General Plan Amendment No. GP2012-002, Coastal Land Use Plan Amendment No. LC2012-001, Zoning Code Amendment No. CA2012-003, Site Development Review No. SD2014-001, Conditional Use Permit No. UP2014-004, and Traffic Study No. TS2014-005 for the development of Lido House Hotel at 3300 Newport Boulevard; WHEREAS, the Applicant proposes a 15,103 square -foot expansion of the Lido House Hotel to add five cottages, 28 private valet parking spaces, and 14 public parking spaces at 475 32nd Street; a greenhouse, a walkway, breakout rooms, and a rooftop enclosure at 330 Newport Boulevard; and landscaping and fencing improvements along the perimeter of the Property ("Project");
WHEREAS, the Project requires the following approvals from the City:
• General Plan Amendment ("GPA") — To amend Anomaly No. 85 to increase the development limit to 118,573 gross square feet;
• Local Coastal Program Amendment ("LCPA") — To increase the development limit to 118,573 gross square feet within both the Coastal Land Use Plan and Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC");
16-58
Resolution No. 2022-
• Zoning Code Amendment ("ZCA") — To increase the development limit to 118,573 gross square feet;
• Major Site Development Review Amendments ("SDR")— To ensure the changes to the Property are developed in accordance with applicable development standards;
• Conditional Use Permit Amendments ("CUP") — To allow the operational changes that result from the changed site plan and floorplan and the sale of alcohol; and
• Addendum No. 2 to the Certified Final Environmental Impact Report for the Lido House Hotel — The addendum addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is categorized Visitor Serving Commercial — Lido Village (CV-LV) and Anomaly No. 85 by the City of Newport Beach General Plan ("General Plan") and located within with the Commercial Visitor -Serving —Lido Village (CV-LV) Zoning District;
WHEREAS, the Planning Commission held a duly noticed public hearing on July 21, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing,
WHEREAS, at the conclusion of the public hearing, the Planning Commission voted unanimously (7 ayes — 0 nays) to adopt Planning Commission Resolution No.
PC2020-020 recommending approval of the Project; and
WHEREAS, the City Council held a duly noticed public hearing on October 25, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the public hearing was provided in accordance with the Ralph M. Brown Act and the NBMC. Evidence both written and oral, was presented to, and considered by, the City Council at this public hearing. 16-59
Resolution No. 2022-
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation.
Section 2: Amendments to the General Plan are legislative acts. Neither the City nor State Planning Law set for any required findings for either approval or denial of such amendments. Notwithstanding the foregoing, GPA is consistent with the corresponding ZCA and LCPA for the following reasons:
General Plan Consistency Findings
a. The Project allows enlarged hallways, an enclosed conference room breakout space, an enclosed "greenhouse" breakout and seating area, larger storage spaces, three slightly larger hotel rooms, and five additional hotel rooms. These changes constitute a 14.6-percent increase in floor area of the hotel and related amenities. Collectively, these changes should enhance the functionality of the hotel and the experience of guests and visitors.
b. The Project includes the removal of the former Fire Station No. 2 building and the construction of surface parking in its place, including 14 new public parking spaces accessed from Via Oporto. These parking spaces will enhance access by increasing the public parking pool in a commercial area frequented by residents and visitors alike.
c. A parking demand analysis was prepared by Linscott, Law & Greenspan on June 8, 2022 for the Project and has been reviewed and accepted by the City Traffic Engineer. The parking demand analysis finds that the increased floor area from the additional five hotel rooms would result in a negligible increase in predicted traffic and parking demands. The predicted traffic to and from the proposed hotel will remain less than what the former City Hall site generated. d. The increased floor area will not significantly reduce publicly visible open space, nor will it decrease the parking provided.
e. The increased hotel floor area would be located on the first, second, third and fourth levels, but would not increase the height of the building. The proposed 16-60
Resolution No. 2022-
hotel would remain consistent with remaining and unchanged applicable standards of the CV-LV Zoning District and Coastal Land Use Policy 4.4.2-1, which limit the height of development.
Charter 423 Analysis
a. The Project does not trigger voter approval. Pursuant to City of Newport Beach ("City") Charter Section 423 and City Council Policy A-18 (Guidelines for Implementing Charter Section 423), proposed General Plan amendments are reviewed to determine if a vote of the electorate would be required because a project (separately or cumulatively with other projects in the same Statistical Area over the prior 10 years) exceeds certain thresholds provided in Section 423 of the City Charter.
b. The proposed General Plan Amendment is in Statistical Area B5. This is the seventh amendment within Statistical Area B5 since the General Plan update in 2006. Three of the six prior amendments were approved less than 10 years ago and continue to be tracked consistent with the provisions of Section 423.
Those are General Plan Amendment Nos. GP2012-005, GP2012-002, and GP2016-001. The following table shows the increases attributable to the subject amendment, prior amendments, and the resulting totals thereby demonstrating that no vote would be required.
Charter Section 423, Measure S
Amendments
Analysis for Statistical
Increased
Density
Area B-5
Increased
Intensity
Peak Hour Trip
Increase
AM
PM
i0
GP2012-002 (PA2012-031)
0 1 23,725
0 0
00•A0.
Total Prior Increases
1 28,470
0 0
:i
100% of Proposed GP2020-004
0 15,103
2.8 3.05
Threshold
1 100
1140,000
1 100
100
Remaining
...
2,121
97.2 .•.
Vote Required?
No
No
No
No
Section 3: The City Council of the City of Newport Beach hereby approves the General Plan Amendment, which is attached hereto as Exhibit "B," and incorporated herein by reference.
16-61
Resolution No. 2022-
Section 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution.
Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 6: Pursuant to Section 15062 of the California Environmental Quality Act ("CEQA") Guidelines, the changes authorized under the Project are not substantial, as they do not involve new significant effects or a substantial increase in the severity of previously identified significant effects, and therefore, a subsequent Environmental Impact Report ("EIR") does not need to be prepared. The City prepared and certified a final EIR for the Lido House Hotel (SCH#2013111022). State CEQA Guidelines allow for the updating and use of a previously certified EIR for projects that have changed or are different from the previous project. In cases where changes or additions occur with no new significant environmental impacts, an addendum to the previously certified EIR may be prepared pursuant to CEQA Guidelines Section 15164. The City prepared Addendum No. 2 to the Lido House Hotel's final EIR for the Project, which concludes there are no new environmental impacts and no impacts of greater severity that would result from approval and implementation of the Project.
16-62
Resolution No. 2022-
Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 25th day of October, 2022.
Kevin Muldoon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY TORNEY'S OFFICE
aron C. Harp
City Attorney
Attachment: Exhibit A —Legal Description
Exhibit B — General Plan Amendment
16-63
EXHIBIT A
Legal Description
LEGAL DESCRIPTION:
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS:
PARCF_I_ 1-
THAT PORTION OF LOTS 3, 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10
WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT FILED IN THE DISTRICT LAND OFFICE, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF "THE HUDSON" WITH THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 21 IN BLOCK 431 OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 0'44'30" WEST ALONG SAID NORTHERLY PROLONGATION 400.00 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE AND LOT 1 IN BLOCK "A" OF SAID LANCASTER'S ADDITION TO NEWPORT BEACH 461.53 FEET TO A POINT IN THE EASTERLY LINE OF SAID CENTRAL AVENUE, AS SHOWN ON TRACT NO. 108, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 1 OF SAID MISCELLANEOUS MAPS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID CENTRAL AVENUE 401.79 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE EASTERLY ALONG THE NORTHERLY OF SAID LOT 1 AND SAID NORTHERLY LINE OF "THE HUDSON" 495.33 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED IN THE DEED ATTACHED TO THAT CERTAIN RESOLUTION NO. 3284 OF THE CITY COUNCIL OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH11, 1946 IN BOOK 1404, PAGE130 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 2 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS.
PARCEL 2:
BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE
EASTERLY ALONG THE NORTHERLY LINE OF WASHINGTON AVENUE, NOW KNOWN AS 32ND STREET, TO THE INTERSECTION WITH THAT PORTION OF THE BULKHEAD LINE ESTABLISHED BY THE WAR DEPARTMENT IN 1936 AND SHOWN ON THE WAR
DEPARTMENT MAP OF NEWPORT BAY SHOWING HARBOR LINE, EXTENDING BETWEEN BULKHEAD STATION NO.124 AND BULKHEAD STATION NO.125; THENCE NORTH 27'30'00"
WEST ALONG SAID BULKHEAD LINE TO ITS INTERSECTION WITH THE NORTHERLY LINE OF "THE HUDSON" AS SHOWN ON SAID MAP OF LANCASTER'S ADDITION; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID "THE HUDSON" TO THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK"A"; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOTS 1 AND 2 TO THE POINT OF BEGINNING.
16-64
PARr.Fl
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGES 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE 20.00 FOOT ALLEY AS VACATED BY RESOLUTION NO. 3280 OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH 11, 1946 IN BOOK 1400, PAGE 189 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0144,30" WEST ALONG THE EASTERLY LINE OF SAID LOT 3, A DISTANCE OF 90.00 FEET; THENCE NORTH 40'47'07" WEST 170.97 FEET TO A POINT IN THE WESTERLY LINE OF SAID 20.00 FOOTALLEY; THENCE SOUTH 0'44'30" EASTALONG THE WESTERLY LINE OF SAID ALLEY 220.89 FEET TO THE SOUTHWESTERLY CORNER OF TRACT NO. 907, AS SHOWN ON A MAP RECORDED IN BOOK 28, PAGES 25 TO 36 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 89'15'30" EAST ALONG THE SOUTHERLY LINE OF SAID TRACT NO. 907 AND SAID LOT 3, A DISTANCE OF 110.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED IN DEED TO THE GRIFFITH COMPANY RECORDED JUNE 15, 1953 IN BOOK 2520, PAGE 577 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 4:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST 74.46 FEET ALONG THE EAST LINE OF SAID LOT TO THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 40'47'07" WEST ALONG THE SOUTHWESTERLY LINE OF SAID LAND OF GRIFFITH COMPANY, A DISTANCE OF 69.945 FEET; THENCE NORTH 89'1630" EAST 45.00 FEET TO THE EAST LINE OF SAID LOT 3; THENCE SOUTH 0'44'30" EAST 53.54 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL 5:
LOTS ONE (2) AND TWO (2) IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH' AS SHOWN ON A MAP RECORED IN BOOK 5, PAGE 14 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA
16-65
EXHIBIT B
General Plan Amendment
Amend Table LU1 to modify the "Visitor Serving Commercial — Lido Village —CV - LW land use category as follows:
Land Use Category Uses Density/Intensity
VISITOR SERVING The CV-LV category is intended to allow for a As specified by Table LU2 COMMERCIAL — LIDO range of accommodations (e.g. hotels, motels, VILLAGE—CV-LV hostels), goods, and services intended to primarily serve visitors to the City of Newport
Beach. Limited Use Overnight Visitor
Accommodations and residences are not
allowed
Amend Table LU2 to modify Anomaly Number 85 as shown in the following table:
Table
ILU2 Anomaly Locations
Anomaly
Statistical
Land Use
Designation
Development
Limit sf
Development
Limit (Other)
Additional
Information
Number
Area
Accessory commercial
floor area is allowed in
conjunction with a hotel
and it is included within
85 B5
CV-LV
118,573 sf of hotel
the hotel development
limit. Municipal
facilities are not
restricted or included in
any development limit.
16-66
Legal Description
LEGAL DESCRIPTION:
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOTS 3, 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10
WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT FILED IN THE DISTRICT LAND OFFICE, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF "THE HUDSON" WITH THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 21 IN BLOCK 431 OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 0'44'30" WEST ALONG SAID NORTHERLY PROLONGATION 400.00 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE AND LOT 1 IN BLOCK "A" OF SAID LANCASTER'S ADDITION TO NEWPORT BEACH 461.53 FEET TO A POINT IN THE EASTERLY LINE OF SAID CENTRAL AVENUE, AS SHOWN ON TRACT NO. 108, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 1 OF SAID MISCELLANEOUS MAPS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID CENTRAL AVENUE 401.79 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE EASTERLY ALONG THE NORTHERLY OF SAID LOT 1 AND SAID NORTHERLY LINE OF "THE HUDSON" 495.33 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED IN THE DEED ATTACHED TO THAT CERTAIN RESOLUTION NO. 3284 OF THE CITY COUNCIL OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH11, 1946 IN BOOK 1404, PAGE130 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 2 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS.
PARCEL 2:
BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA- THENCE
EASTERLY ALONG THE NORTHERLY LINE OF WASHINGTON AVENUE, NOW KNOWN AS 32ND STREET, TO THE INTERSECTION WITH THAT PORTION OF THE BULKHEAD LINE ESTABLISHED BY THE WAR DEPARTMENT IN 1936 AND SHOWN ON THE WAR
DEPARTMENT MAP OF NEWPORT BAY SHOWING HARBOR LINE, EXTENDING BETWEEN BULKHEAD STATION NO.124 AND BULKHEAD STATION NO.125; THENCE NORTH 27'30'00"
WEST ALONG SAID BULKHEAD LINE TO ITS INTERSECTION WITH THE NORTHERLY LINE OF "THE HUDSON" AS SHOWN ON SAID MAP OF LANCASTER'S ADDITION; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID "THE HUDSON" TO THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK"A"; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOTS 1 AND 2 TO THE POINT OF BEGINNING.
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PARCEL 3:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGES 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE 20.00 FOOT ALLEY AS VACATED BY RESOLUTION NO. 3280 OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH 11, 1946 IN BOOK 1400, PAGE 189 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST ALONG THE EASTERLY LINE OF SAID LOT 3, A DISTANCE OF 90.00 FEET; THENCE NORTH 40'47'07" WEST 170.97 FEET TO A POINT IN THE WESTERLY LINE OF SAID 20.00 FOOTALLEY; THENCE SOUTH 0'44'30" EASTALONG THE WESTERLY LINE OF SAID ALLEY 220.89 FEET TO THE SOUTHWESTERLY CORNER OF TRACT NO. 907, AS SHOWN ON A MAP RECORDED IN BOOK 28, PAGES 25 TO 36 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 89'15'30" EAST ALONG THE SOUTHERLY LINE OF SAID TRACT NO. 907 AND SAID LOT 3, A DISTANCE OF 110.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED IN DEED TO THE GRIFFITH COMPANY RECORDED JUNE 15, 1953 IN BOOK 2520, PAGE 577 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 4:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0144,30" WEST 74.46 FEET ALONG THE EAST LINE OF SAID LOT TO THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 40'47'07" WEST ALONG THE SOUTHWESTERLY LINE OF SAID LAND OF GRIFFITH COMPANY, A DISTANCE OF 69.945 FEET; THENCE NORTH 89'15'30" EAST 45.00 FEET TO THE EAST LINE OF SAID LOT 3; THENCE SOUTH 0'44'30" EAST 53.54 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL 5:
LOTS ONE (2) AND TWO (2) IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH' AS SHOWN ON A MAP RECORED IN BOOK 5, PAGE 14 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA
EXHIBIT B
General Plan Amendment
Amend Table LU1 to modify the "Visitor Serving Commercial — Lido Village —CV - LW land use category as follows:
CategoriesTable LU1 Land Use Plan
Land Use Category Uses Density/Intensity
VISITOR SERVING The CV-LV category is intended to allow for a As specified by Table LU2 COMMERCIAL — LIDO range of accommodations (e.g. hotels, motels, VILLAGE—CV-LV hostels), goods, and services intended to primarily serve visitors to the City of Newport
Beach. Limited Use Overnight Visitor
Accommodations and residences are not
allowed
Amend Table LU2 to modify Anomaly Number 85 as shown in the following table:
Table
LU2 Anomaiv Locations
Anomaly
Statistical
Land Use
Designation
Development
Limit sf
Development
Limit (Other)
Additional
Information
Number
Area
Accessory commercial
floor area is allowed in
conjunction with a hotel
and it is included within
85 B5
CV-LV
118,573 sf of hotel
the hotel development
limit. Municipal
facilities are not
restricted or included in
any development limit.
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Attachment C
Resolution No. 2022-78, Authorizing the LCP Amendment
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RESOLUTION NO. 2022- 78
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING
SUBMITTAL OF A LOCAL COASTAL PROGRAM
AMENDMENT TO THE CALIFORNIA COASTAL
COMMISSION TO AMEND THE CITY OF NEWPORT
BEACH COASTAL LAND USE PLAN AND TITLE 21
(LOCAL COASTAL PROGRAM IMPLEMENTATION
PLAN) OF THE NEWPORT BEACH MUNICIPAL CODE
RELATED THE LIDO HOUSE HOTEL LOCATED AT 3300
NEWPORT BOULEVARD AND 475 32ND STREET
(PA2020-068)
WHEREAS, Section 30500 of the California Public Resources Code requires each county and city to prepare a Local Coastal Program ("LCP") for that portion of the coastal zone within its jurisdiction;
WHEREAS, in 2005, the City adopted the City of Newport Beach Local Coastal Program and Coastal Land Use Plan, as amended from time to time; WHEREAS, the California Coastal Commission effectively certified the City's Local Coastal Program Implementation Plan on January 13, 2017, and the City added Title 21 (Local Coastal Program Implementation Plan) ("Title 21") to the City of Newport Beach Municipal Code ("NBMC") whereby the City assumed coastal development permit - issuing authority on January 30, 2017;
WHEREAS, an application was filed by R.D. Olson Development ("Applicant") with respect to property located at 3300 Newport Boulevard and 475 32nd Street as legally described in Exhibit 'A," which is attached hereto and incorporated by reference ("Property");
WHEREAS, on September 9, 2014, the City Council approved General Plan Amendment No. GP2012-002, Coastal Land Use Plan Amendment No. LC2012-001, Zoning Code Amendment No. CA2012-003, Site Development Review No. SD2014-001, Conditional Use Permit No. UP2014-004, and Traffic Study No. TS2014-005 for the development of Lido House Hotel at 3300 Newport Boulevard; WHEREAS, the Applicant proposes a 15,103 square -foot expansion of the Lido House Hotel to add five cottages, 28 private valet parking spaces, 14 public parking spaces, a greenhouse, a walkway, breakout rooms, a rooftop enclosure, and landscaping and fencing improvements along the perimeter of the Property ("Project"); 16-71
Resolution No. 2022-
WHEREAS, the Project requires the following approvals from the City:
• General Plan Amendment ("GPA") —To amend Anomaly No. 85 to increase the development limit to 118,573 gross square feet;
• Local Coastal Program Amendment ("LCPA") — To increase the development limit to 118,573 gross square feet within both the Coastal Land Use Plan and Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC");
• Zoning Code Amendment ("ZCA") — To increase the development limit to 118,573 gross square feet;
• Major Site Development Review Amendments ("SDR")— To ensure the changes to the Property are developed in accordance with applicable development standards;
• Conditional Use Permit Amendments ("CUP") — To allow the operational changes that result from the changed site plan and floorplan and the sale of alcohol; and
• Addendum No. 2 to the Certified Final Environmental Impact Report for the Lido House Hotel — The addendum addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is designated Visitor Serving Commercial — Lido Village (CV-LV) and Anomaly No. 85 by the City of Newport Beach General Plan ("General Plan") and located within with the Commercial Visitor -Serving —Lido Village (CV-LV) Zoning District;
WHEREAS, the Project includes an amendment to the Newport Beach Coastal Land Use Plan and Title 21 to allow for the increase in the development limit to 118,573 gross square feet;
WHEREAS, pursuant to Section 13515 of the California Code of Regulations Title 14, Division 5.5, Chapter 8 ("Section 13515"), drafts of the LCPA were made available and a Notice of Availability was distributed on July 20, 2022, at least six weeks prior to the anticipated final action date;
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Resolution No. 2022-
WHEREAS, the Planning Commission held a duly noticed public hearing on July 21, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing; WHEREAS, at the conclusion of the public hearing, the Planning Commission voted unanimously (7 ayes — 0 nays) to adopt Planning Commission Resolution No.
PC2020-020 recommending approval of the Project to the City Council; and WHEREAS, the City Council held a duly noticed public hearing on October 25, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the public hearing was provided in accordance with the Ralph M. Brown Act, Section 13515, and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The City Council authorizes staff to submit this Local Coastal Program Amendment to amend portions of the Coastal Land Use Plan and Title 21, as set forth in Exhibits "B" and "C," which are attached hereto and incorporated by reference, to the California Coastal Commission for review and approval.
Section 2: This Local Coastal Program Amendment shall not become effective until approval by the California Coastal Commission and adoption, including any modifications suggested by the California Coastal Commission, by resolution and/or ordinance of the City of Newport Beach.
Section 3: The Coastal Land Use Plan and Title 21, including this Local Coastal Program Amendment, if approved, will be carried out fully in conformity with the California Coastal Act.
Section 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. 16-73
Resolution No. 2022-
Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 6: Pursuant to Section 15062 of the California Environmental Quality Act ("CEQA") Guidelines, the changes authorized under the Project are not substantial, as they do not involve new significant effects or a substantial increase in the severity of previously identified significant effects, and therefore, a subsequent Environmental Impact Report ("EIR") does not need to be prepared. The City prepared and certified a final EIR for the Lido House Hotel (SCH#2013111022). State CEQA Guidelines allow for the updating and use of a previously certified EIR for projects that have changed or are different from the previous project. In cases where changes or additions occur with no new significant environmental impacts, an addendum to the previously certified EIR may be prepared pursuant to CEQA Guidelines Section 15164. The City prepared Addendum No. 2 to the Lido House Hotel's final EIR for the Project, which concludes there are no new environmental impacts and no impacts of greater severity that would result from approval and implementation of the Project.
16-74
Resolution No. 2022-
Section 7: This resolution shall be effective upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 25th day of October, 2022.
Kevin Muldoon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment: Exhibit A — Legal Description
Exhibit B — Amendment to Coastal Land Use Plan
Exhibit C — Amendment to Title 21 (Local Coastal Program Implementation Plan)
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EXHIBIT A
Legal Description
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOTS 3, 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10
WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT FILED IN THE DISTRICT LAND OFFICE, DESCRIBED AS FOLLOWS. -
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF "THE HUDSON" WITH THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 21 IN BLOCK 431 OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 0'44'30" WEST ALONG SAID NORTHERLY PROLONGATION 400.00 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE AND LOT 1 IN BLOCK "A" OF SAID LANCASTER'S ADDITION TO NEWPORT BEACH 461.53 FEET TO A POINT IN THE EASTERLY LINE OF SAID CENTRAL AVENUE, AS SHOWN ON TRACT NO. 108, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 1 OF SAID MISCELLANEOUS MAPS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID CENTRAL AVENUE 401.79 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE EASTERLY ALONG THE NORTHERLY OF SAID LOT 1 AND SAID NORTHERLY LINE OF "THE HUDSON" 495.33 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED IN THE DEED ATTACHED TO THAT CERTAIN RESOLUTION NO. 3284 OF THE CITY COUNCIL OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH11, 1946 IN BOOK 1404, PAGE130 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 2 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS.
PARCEL 2:
BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, THENCE
EASTERLY ALONG THE NORTHERLY LINE OF WASHINGTON AVENUE, NOW KNOWN AS 32ND STREET, TO THE INTERSECTION WITH THAT PORTION OF THE BULKHEAD LINE ESTABLISHED BY THE WAR DEPARTMENT IN 1936 AND SHOWN ON THE WAR
DEPARTMENT MAP OF NEWPORT BAY SHOWING HARBOR LINE, EXTENDING BETWEEN BULKHEAD STATION NO.124 AND BULKHEAD STATION NO.125; THENCE NORTH 27'30'00"
WEST ALONG SAID BULKHEAD LINE TO ITS INTERSECTION WITH THE NORTHERLY LINE OF "THE HUDSON" AS SHOWN ON SAID MAP OF LANCASTER'S ADDITION; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID "THE HUDSON" TO THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK"A"; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOTS 1 AND 2 TO THE POINT OF BEGINNING.
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PARCEL 3:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGES 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE 20.00 FOOT ALLEY AS VACATED BY RESOLUTION NO. 3280 OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH 11, 1946 IN BOOK 1400, PAGE 189 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST ALONG THE EASTERLY LINE OF SAID LOT 3, A DISTANCE OF 90.00 FEET; THENCE NORTH 40'47'07" WEST 170.97 FEET TO A POINT IN THE WESTERLY LINE OF SAID 20.00 FOOT ALLEY; THENCE SOUTH 0'44'30" EAST ALONG THE WESTERLY LINE OF SAID ALLEY 220.89 FEET TO THE SOUTHWESTERLY CORNER OF TRACT NO. 907, AS SHOWN ON A MAP RECORDED IN BOOK 28, PAGES 25 TO 36 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 89'15'30" EAST ALONG THE SOUTHERLY LINE OF SAID TRACT NO. 907 AND SAID LOT 3, A DISTANCE OF 110.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED IN DEED TO THE GRIFFITH COMPANY RECORDED JUNE 15, 1953 IN BOOK 2520, PAGE 577 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCF_I_ 4-
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST 74.46 FEET ALONG THE EAST LINE OF SAID LOT TO THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 40'47'07" WEST ALONG THE SOUTHWESTERLY LINE OF SAID LAND OF GRIFFITH COMPANY, A DISTANCE OF 69.945 FEET; THENCE NORTH 89'15'30" EAST 45.00 FEET TO THE EAST LINE OF SAID LOT 3; THENCE SOUTH 0'44'30" EAST 53.54 FEET TO THE TRUE POINT OF BEGINNING.
PARCFI 5-
LOTS ONE (2) AND TWO (2) IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH' AS SHOWN ON A MAP RECORED IN BOOK 5, PAGE 14 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA
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EXHIBIT B
Amendment to Coastal Land Use Plan
Section 1. Amend Table 2.1.1-1 of the Coastal Land Use Plan as follows:
Table 2.1.1-1 Land - Plan Categories
Land Use Category Uses Density/Intensity
The CV-LV category is intended to allow for
a range of accommodations (e.g. hotels,
motels, hostels), goods, and services
intended to primarily serve visitors to the 403-479
CV-LV City of Newport Beach. A. fire stat;o ;--;s
Limited Use 118,573 gross square feet Pet
Visitor -Serving in GIU,.Ung a faro Ufa f;,,„ n firo
Commercial — Overnight Visitor Accommodations and
residences are not allowed. Note: The CV -
Lido Village LV (Visitor Serving Commercial - Lido P_f the total pro Village) category applies to the former City s+t�
Hall Complex that includeds Fire Station # 2
(3300 Newport Boulevard and 475 32nd
Street).
Section 2. Amend Policy 4.4.2-1 of the Coastal Land Use Plan as follows:
4.4.2-1. Maintain the 35-foot height limitation in the Shoreline Height Limitation Zone, as graphically depicted on Map 4-3, except for the following sites:
A. Marina Park located at 1600 West Balboa Boulevard: A single, up to maximum 73-foot- tall faux lighthouse architectural tower, that creates an iconic landmark for the public to identify the site from land and water as a boating safety feature, may be allowed. No further exceptions to the height limit shall be allowed, including but not limited to, exceptions for architectural features, solar equipment or flag poles. Any architectural tower that exceeds the 35-foot height limit shall not include floor area above the 35-foot height limit, but shall house screened communications or emergency equipment, and shall be sited and designed to reduce adverse visual impacts and be compatible with the character of the area by among other things, incorporating a tapered design with a maximum diameter of 34-feet at the base of the tower. Public viewing opportunities shall be provided above the 35-feet, as feasible. (Resolution 2013-44) B. Former City Hall Complex at 3300 Newport Blvd and 475 32nd Street (the site):
16-78
• At least 75% of the total area of the site shall be 35 feet in height or lower.
• Buildings and structures up to 55 feet in height with the peaks of sloping roofs and elevator towers up to 60 feet in height, provided it is demonstrated that development does not adversely impact public views.
• Architectural features such as domes, towers, cupolas, spires, and similar structures may be up to 65 feet in height.
• Buildings and structures over 35 feet in height, including architectural features, shall not occupy more than 25 percent of the total area of the site.
• Buildings and structures over 45 feet in height, architectural features, shall not occupy more than 15 percent of the total area of the site. • WiththeexeeptiGn of a fire statiei,-aAll buildings and structures over 35 feet in height, including architectural features, shall be setback a minimum of 60 feet from the Newport Boulevard right-of-way and 70 feet fromthe32nd Street right-of-way.
• A fire }cation a�� he ieGate,, iir T��ecrRt IeGatinR and may be i ire to 40 feet i - height. AfiFe statGtrRrmra iRGWdti aFGh ite GtHral feat �rtcrsup to 45 foot in height to house and cnreen ecceRtinl eq iipMeRt • The purpose of allowing limited exceptions to the 35-foot height limit on this site is to promote vertical clustering resulting in increased up bliclypubliGallaccessible on -site open space and architectural diversity while protecting existing coastal views and providing new coastal view opportunities. (Resolution 2016-29)
16-79
EXHIBIT C
Amendment to Title 21 (Local Coastal Program Implementation Plan) Section 1. Amend the row entitled "Side [Setbacks] (Street Side)" in Table
21.20-2 (Development Standards for Commercial Coastal Zoning Districts) of Section 21.20.030 (Commercial Coastal Zoning Districts General Development Standards) of Title 21 (Local Coastal Program Implementation Plan) of the NBMC to read as follows:
TABLE 21.20-2
DEVELOPMENT STANDARDS FOR COMMERCIAL COASTAL ZONING DISTRICTS Development
Feature
CC
CG
CM
CN
CV
CV-LV
OG
Additional
Requirements
Side (Street
0 0
0 0
0 32nd Street:
15 ft.
side)
1 ft. for below grade structures;
1 ft. for structures up to 35 ft. in
height;
70 ft. for structures over 35 ft. in
height u�
Via Oporto:
0 Section 2. Amend the row entitled "Floor Area Ratio" in Table 21.20-2 (Development Standards for Commercial Coastal Zoning Districts) of Section
21.20.030 (Commercial Coastal Zoning Districts General Development Standards) of Title 21 (Local Coastal Program Implementation Plan) of the NBMC to read as follows:
TABLE 21.20-2
DEVELOPMENT STANDARDS FOR COMMERCIAL COASTAL ZONING DISTRICTS Development
Additional
Feature
CC
CG
CM
CN
CV
CV-LV
OG
Requirements
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TABLE 21.20-2
DEVELOPMENT STANDARDS FOR COMMERCIAL COASTAL ZONING DISTRICTS Development
Additional
Feature
CC
CG
CM
CN
CV
CV-LV
OG
Requirements
Floor Area
0.75 0.75
0.50 0.30
1.50 103,478
1.30 Ratio (2)(3)(4)
118,573 sf (8)
Section 3. Amend the rows related to "Height" in Table 21.20-2 (Development Standards for Commercial Coastal Zoning Districts) of Section
21.20.023 (Commercial Coastal Zoning Districts General Development Standards) of Title 21 (Local Coastal Program Implementation Plan) of the NBMC to read as follows:
TABLE 21.20-2
DEVELOPMENT STANDARDS FOR COMMERCIAL COASTAL ZONING DISTRICTS Development
I
Additional
Feature
CC
CG
CM
CN
CV
CV-LV
OG
Requirements
Height
Maximum allowable height of structures without discretionary approval. See Section 21.30.060 (Height Limits and Exceptions) for height measurement requirements. See Section 21.30.060(C) (Increase in Height Limit) for possible increase in height limit.
Within
55 ft. withflat -rent
Shoreline
55 ft. with flat
less t#a,^-3112 rAA
roof, less than
Height Limit
Zone
3/12 roof
-
pitch-
26 ft. with flat roof, less than
60 :ft-. v.fiuh wed
3/12 pitch
rsaf, 3/12-FGGf
p4c-14
31 ft. with sloped roof; 3/12
60 ft. with
nr greater (6)(74
sloped roof,
or greater pitch
26 ft. with flat roof;
less than 3/12 pitch
3/12 roof pitch
or greater
(5).(�7}
31 ft. with sloped
Section 21.30.06
0 See CLOP Policy
roof; 3/12 or greater
ig tch
Not within
NA
4.4.2-1
Shoreline
32 ft. with flat roof, less than
32 ft. with flat roof;
less than 3/12 pitch
Height Limit
Zone
3/12 pitch
37 ft. with sloped roof; 3/12
NSA
37 ft. with sloped
roof; 3/12 or greater
or greater pitch
ip tch
Within High
Rise Height
Area (See Figure
300 ft.
N/A
N-AA
300 ft.
H-1, attached to
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TABLE 21.20-2
DEVELOPMENT STANDARDS FOR COMMERCIAL COASTAL ZONING DISTRICTS Development
Feature
CC
CG
CM
CN
CV
CV-LV
OG
Additional
Requirements
the ordinance
codified in this
Implementatio
n Plan).
Section 4. Amend the footnotes for Table 21.20-2 (Development Standards for Commercial Coastal Zoning Districts) of Section 21.20.020 (Commercial Coastal Zoning Districts General Development Standards) of Title 21 (Local Coastal Program Implementation Plan) of the NBMC to read as follows:
Notes:
(1) All development and the subdivision of land shall comply with the requirements of Section 21.30.025 (Coastal Zone Subdivisions).
(2) In the CG Coastal Zoning District, when 0.3/0.5 is shown on the Coastal Zoning Map, the FAR may be increased to a maximum of 0.5 when two or more legal lots are merged to accommodate larger commercial development projects.
(3) Portions of legal lots that are submerged lands or tidelands shall be included in the land area of the lot for the purpose of calculating the allowable floor area for structures. (4) The specific floor area limitations for each coastal zoning district are identified on the Coastal Zoning Map.
LQ 6) Architectural features such as domes, towers, cupolas, spires, and similar structures may be up to sixty-five (65) feet in height.
Section 5. Amend Subsection (D)(15) of Section 21.30.060 (Height Limits and Exceptions) of Title 21 (Local Coastal Program Implementation Plan) of the NBMC to read as follows:
15. Lido House Hotel. At the former City Hall, 3300 Newport Boulevard and 475 32nd Street:
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a. At least seventy-five (75) percent of the total area of the site shall be thirty-five (35) feet in height or lower.
b. Buildings and structures up to fifty-five (55) feet in height with the peaks of sloping roofs and elevator towers up to sixty (60) feet in height provided it is demonstrated that development does not adversely materially impact public views. c. Architectural features such as domes, towers, cupolas, spires, and similar structures may be up to sixty-five (65) feet in height.
d. Buildings and structures over thirty-five (35) feet in height, including architectural features, shall not occupy more than twenty-five (25) percent of the total area of the site. e. Buildings and structures over forty-five (45) feet in height, including architectural features, shall not occupy more than fifteen (15) percent of the total area of the site. f. With the eXGeptien of a fie station,aAll buildings and structures over thirty-five (35) feet in height, including architectural features, shall be set back a minimum of sixty (60) feet from the Newport Boulevard right-of-way and seventy (70) feet from the 32nd Street right- of-way.
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Attachment D
Resolution No. 2022-79, Approving the SDR and CUP
RESOLUTION NO. 2022- 79
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
AMENDMENTS TO THE MAJOR SITE DEVELOPMENT
REVIEW AND CONDITIONAL USE PERMIT FOR THE
LIDO HOUSE HOTEL LOCATED AT 3300 NEWPORT
BOULEVARD AND 475 32ND STREET (PA2020-068)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, an application was filed by R.D. Olson Development ("Applicant") with respect to property located at 3300 Newport Boulevard and 475 32nd Street as legally described in Exhibit "A," which is attached hereto and incorporated by reference ("Property"),
WHEREAS, on September 9, 2014, the City Council approved General Plan Amendment No. GP2012-002, Coastal Land Use Plan Amendment No. LC2012-001, Zoning Code Amendment No. CA2012-003, Site Development Review No. SD2014-001, Conditional Use Permit No. UP2014-004, and Traffic Study No. TS2014-005 for the development of Lido House Hotel at 3300 Newport Boulevard; WHEREAS, the Applicant proposes a 15,103 square -foot expansion of the Lido House Hotel to add five cottages, 28 private valet parking spaces, 14 public parking spaces, a greenhouse, a walkway, breakout rooms, a rooftop enclosure, and landscaping and fencing improvements along the perimeter of the Property ("Project"); WHEREAS, the Project requires the following approvals from the City:
• General Plan Amendment ("GPA") —To amend Anomaly No. 85 to increase the development limit to 118,573 gross square feet;
• Local Coastal Program Amendment ("LCPA") — To increase the development limit to 118,573 gross square feet within both the Coastal Land Use Plan and Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC");
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Resolution No. 2022-
• Zoning Code Amendment ("ZCA") — To increase the development limit to 118,573 gross square feet;
• Major Site Development Review Amendments ("SDR")— To ensure the changes to the Property are developed in accordance with applicable development standards;
• Conditional Use Permit Amendments ("CUP") — To allow the operational changes that result from the changed site plan and floorplan and the sale of alcohol; and
• Addendum No. 2 to the Certified Final Environmental Impact Report for the Lido House Hotel — The addendum addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is categorized Visitor Serving Commercial — Lido Village (CV-LV) and Anomaly No. 85 by the City of Newport Beach General Plan ("General Plan") and located within with the Commercial Visitor -Serving —Lido Village (CV-LV) Zoning District;
WHEREAS, the Planning Commission held a duly noticed public hearing on July 21, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing;
WHEREAS, at the conclusion of the public hearing, the Planning Commission voted unanimously (7 ayes — 0 nays) to adopt Planning Commission Resolution No.
PC2020-020 recommending approval of the Project to the City Council; and WHEREAS, the City Council held a duly noticed public hearing on October 25, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the public hearing was provided in accordance with the Ralph M. Brown Act and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing.
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Resolution No. 2022-
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation.
Section 2: The City Council of the City of Newport Beach hereby approves the amendments to the Major Site Development Review and the Conditional Use Permit, based upon the Site Development Review and Conditional Use Permit Findings attached hereto as Exhibit "B" and subject to the conditions of approval attached hereto as Exhibit "C" both of which are incorporated herein by reference.
Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 5: Pursuant to Section 15062 of the California Environmental Quality Act ("CEQA") Guidelines, the changes authorized under the Project are not substantial, as they do not involve new significant effects or a substantial increase in the severity of previously identified significant effects, and therefore, a subsequent Environmental Impact Report ("EIR") does not need to be prepared. The City prepared and certified a final EIR for the Lido House Hotel (SCH#2013111022). State CEQA Guidelines allow for the updating and use of a previously certified EIR for projects that have changed or are different from the previous project. In cases where changes or additions occur with no new significant environmental impacts, an addendum to the previously certified EIR may be prepared pursuant to CEQA Guidelines Section 15164. The City prepared Addendum No. 2 to the Lido House Hotel's final EIR for the Project, which concludes there are no new environmental impacts and no impacts of greater severity that would result from approval and implementation of the Project.
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Resolution No. 2022-
Section 6: This resolution shall be effective immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 25th day of October, 2022.
Kevin Muldoon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment: Exhibit A — Legal Description
Exhibit B — Site Development Review and Conditional Use Permit Findings Exhibit C — Conditions of Approval
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EXHIBIT A
Legal Description
LEGAL DESCRIPTION:
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOTS 3, 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10
WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT FILED IN THE DISTRICT LAND OFFICE, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF "THE HUDSON" WITH THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 21 IN BLOCK 431 OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 0'44'30" WEST ALONG SAID NORTHERLY PROLONGATION 400.00 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE AND LOT 1 IN BLOCK "A" OF SAID LANCASTER'S ADDITION TO NEWPORT BEACH 461.53 FEET TO A POINT IN THE EASTERLY LINE OF SAID CENTRAL AVENUE, AS SHOWN ON TRACT NO. 108, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 1 OF SAID MISCELLANEOUS MAPS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID CENTRAL AVENUE 401.79 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE EASTERLYALONG THE NORTHERLY OF SAID LOT 1 AND SAID NORTHERLY LINE OF "THE HUDSON" 495.33 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED IN THE DEED ATTACHED TO THAT CERTAIN RESOLUTION NO. 3284 OF THE CITY COUNCIL OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH11, 1946 IN BOOK 1404, PAGE130 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 2 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS.
PARCFI ?-
BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE
EASTERLY ALONG THE NORTHERLY LINE OF WASHINGTON AVENUE, NOW KNOWN AS 32ND STREET, TO THE INTERSECTION WITH THAT PORTION OF THE BULKHEAD LINE ESTABLISHED BY THE WAR DEPARTMENT IN 1936 AND SHOWN ON THE WAR
DEPARTMENT MAP OF NEWPORT BAY SHOWING HARBOR LINE, EXTENDING BETWEEN BULKHEAD STATION NO.124 AND BULKHEAD STATION NO.125; THENCE NORTH 27'30'00"
WEST ALONG SAID BULKHEAD LINE TO ITS INTERSECTION WITH THE NORTHERLY LINE OF "THE HUDSON" AS SHOWN ON SAID MAP OF LANCASTER'S ADDITION; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID "THE HUDSON" TO THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK"A"; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOTS 1 AND 2 TO THE POINT OF BEGINNING.
O
PARCFI 2-
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGES 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE 20.00 FOOT ALLEY AS VACATED BY RESOLUTION NO. 3280 OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH 11, 1946 IN BOOK 1400, PAGE 189 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0144,30" WEST ALONG THE EASTERLY LINE OF SAID LOT 3, A DISTANCE OF 90.00 FEET; THENCE NORTH 40'47'07" WEST 170.97 FEET TO A POINT IN THE WESTERLY LINE OF SAID 20.00 FOOTALLEY; THENCE SOUTH 0'44'30" EAST ALONG THE WESTERLY LINE OF SAID ALLEY 220.89 FEET TO THE SOUTHWESTERLY CORNER OF TRACT NO. 907, AS SHOWN ON A MAP RECORDED IN BOOK 28, PAGES 25 TO 36 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 89'15'30" EAST ALONG THE SOUTHERLY LINE OF SAID TRACT NO. 907 AND SAID LOT 3, A DISTANCE OF 110.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED IN DEED TO THE GRIFFITH COMPANY RECORDED JUNE 15, 1953 IN BOOK 2520, PAGE 577 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 4:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST 74.46 FEET ALONG THE EAST LINE OF SAID LOT TO THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 40'47'07" WEST ALONG THE SOUTHWESTERLY LINE OF SAID LAND OF GRIFFITH COMPANY, A DISTANCE OF 69.945 FEET; THENCE NORTH 89'1530" EAST 45.00 FEET TO THE EAST LINE OF SAID LOT 3; THENCE SOUTH 0'44'30" EAST 53.54 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL 5:
LOTS ONE (2) AND TWO (2) IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH' AS SHOWN ON A MAP RECORED IN BOOK 5, PAGE 14 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA
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EXHIBIT B
Site Development Review and Conditional Use Permit Findings Site Development Review
In accordance with Section 20.52.080(F) (Site Development Reviews — Findings and Decisions) of the NBMC, the following findings and facts in support of such findings are set forth as follows:
Finding:
A. The proposed development is allowed within the subject Zoning district; Fact in Support of Finding:
The Project is within the Visitor Serving Commercial - Lido Village (CV-LV) zoning district.
Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the NBMC allows visitor accommodations and related accessory uses subject to the approval of a conditional use permit.
Finding:
B. The proposed development is in compliance with all of the applicable criteria fbelow]:
a. Compliance with this Section, the General Plan, this Zoning Code, any applicable specific plan, and other applicable criteria and policies related to the use or structure;
b. The efficient arrangement of structures on the site and the harmonious relationship of the structures to one another and to other adjacent development; and whether the relationship is based on standards of good design,
c. The compatibility in terms of bulk, scale, and aesthetic treatment of structures on the site and adjacent developments and public areas,
d. The adequacy, efficiency, and safety of pedestrian and vehicular access, including drive aisles, driveways, and parking and loading spaces; 16-91
e. The adequacy and efficiency of landscaping and open space areas and the use of water efficient plant and irrigation materials; and
f. The protection of significant views from public right(s)-of-way and compliance with Section 20.30.100 (Public View Protections); and
Facts in Support of Finding:
1. The modified 135-room hotel project is consistent with the Visitor Serving Commercial -Lido Village (CV-LV) General Plan land use designation, Visitor Serving Commercial - Lido Village (CV-LV) Coastal Land Use Plan category, and the Visitor Serving Commercial - Lido Village (CV-LV) Zoning District for the Property that provides for the horizontal or vertical intermixing of commercial, visitor accommodations, residential, and/or civic uses. Civic uses could include, but are not limited to, a community center, public plazas, and/or public parking.
2. The Visitor Serving Commercial - Lido Village (CV-LV) Zoning District includes setback standards (0 to 70 feet depending on height), open space (20 percent of the site), and building height standards (55 feet to flat roofs, 60 feet for sloping roofs and up to 65 feet for architectural features). The new single -story greenhouse structure will be set back a minimum of 53 feet from Newport Boulevard. The remaining modified hotel building will maintain a setback of more than 69 feet from Newport Boulevard, more than 15 feet from 32nd Street, and more than 62 feet from the northerly (interior) property line. The height of the sloping roof of the four- story portion of the modified hotel remains less than 58 feet, 5 inches and all other portions of the hotel are below this height. Lastly, the proposed site plan provides at least 20 percent of the Property as open space consisting of hardscape and landscaping between the hotel and Newport Boulevard and 32nd Street in compliance with the proposed open space standard.
3. The Project is compatible with surrounding development and public spaces in terms of bulk, scale and aesthetic treatments. The large setbacks identified in Facts B.2 above help offset the taller portions of the proposed buildings. The hotel buildings have been designed with a one-, two- and three-story elements along Newport Boulevard while providing a significant setback from the street providing areas for public access, landscaping, outdoor dining, and hotel use.
Notwithstanding the new greenhouse structure, the modified hotel building is over 69 feet from the Newport Boulevard. The portions of the hotel structure that are three and four stories are located along the northerly and easterly portion of the 16-92
site away from public spaces and closer to the back of the abutting shopping center that is developed with large buildings with heights close to 35 feet. Additionally, these taller components are separated by approximately 240 feet from the Lido Villas residential project to the east. Based upon the Project drawings, all elevations of proposed new additions will include consistent architectural treatments, articulation and modulation of building masses providing visual interest with a coastal architectural theme specified by the Lido Village Design Guidelines.
4. The Project retains the two large ficus trees designated by Council Policy G-1 (Retention, Removal, and Maintenance of City Trees) as Landmark Trees. The Project also retains the 10 existing tall date palm trees, and provides pedestrian areas, seating areas, and enhanced pavement increasing the aesthetic and use qualities of the setback area. The setback area also provides pedestrian connections from the intersection of Newport Boulevard and 32nd Street along the streets in furtherance of the goals of the Lido Village Design Guidelines. Lastly, the building elevations include lighthouse -like architectural features, simple gable roofs, tight overhangs, simple block massing, and wood siding all with a clear coastal theme consistent with the Lido Village Design Guidelines.
5. Access to the Property, on -site circulation, and parking areas are designed to provide standard -sized parking spaces consistent with Title 20 of the NBMC, 26- foot-wide, two-way driveways, and the minimum vehicle turning radius to accommodate and provide safe access for residents and guests (including the disabled), emergency vehicles, delivery trucks, and refuse collections vehicles, as determined by the City Traffic Engineer.
6. The Project is subject to Chapter 14.17 (Water -Efficient Landscaping) of the NBMC and compliance will be confirmed at plan check prior to issuing building permits.
7. Consistent with Section 20.30.100 (Public View Protection), the Certified EIR (Section 5.2 Aesthetics/Light and Glare) provides an analysis of potential impacts to public views from Sunset View Park, Cliff Drive Park and Ensign View Park.
Based upon that analysis, the proposed hotel will blend into the urban background and not block any important focal points including the horizon within existing public views from these vantages. Additionally, there are other taller buildings in the vicinity suggesting that proposed building would not be out of character.
Specifically, 601 and 611 Lido Park Drive and 3388 Via Lido are taller than the existing hotel and the Project. No significant public views through or near the Project site are present in the immediate vicinity of the site. For these reasons, the 16-93
analysis concludes that there will be no material impact to public coastal views.
While the Project includes increased floor area for the hotel, the proposed five new cottages will be added in line with the existing cottages and most of the other new area will be added on the ground level.
Finding:
C. The proposed development is not detrimental to the harmonious and orderly growth of the City, or endanger jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed development.
Facts in Support of Finding:
1. The Project will maintain consistency with the Lido Village Design Guidelines by continuing an architecturally pleasing coastal theme. Its articulation and building modulation serve to enhance the urban environment consistent with the Lido Village Design Guidelines. The Project provides a large setback area between the hotel and Newport Boulevard and 32nd Street that includes pedestrian paths, seating and landscape areas that will create a community focal point and providing connections to abutting uses. While the Project includes a low barrier fence along the Newport Boulevard and 32nd Street frontages, the wide gates will remain open at all times when there are no special events occurring in the front lawn area.
2. The Property is in a developed commercial area with limited sensitive land uses located nearby. The overall height of the Project will not materially impact any public views from General Plan designated vantages or significantly shade surrounding properties as demonstrated in Section 5.2 Aesthetics/Light and Glare of the Certified EIR.
3. The Project includes 165 on -site parking spaces using a valet parking plan and bicycle parking. The Applicant retained Linscott Law & Greenspan to prepare a parking demand analysis. The analysis forecasts a peak parking demand of 151 parking spaces. Therefore, the Project has been designed accommodate all anticipated parking demand. Additionally, the parking lot and vehicular access thereto has been designed to accommodate and provide safe access for passenger vehicles, emergency vehicles, delivery trucks, and refuse collection vehicles. The City Traffic Engineer reviewed and accepted both the parking demand analysis and the revised parking lot layout.
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4. The Project includes the removal of the former Fire Station No. 2 building and the construction of surface parking in its place, including 14 new public parking spaces accessed from Via Oporto. These parking spaces will enhance access by increasing the public parking pool in a commercial area frequented by residents and visitors alike.
5. Direct vehicular access to Via Lido Plaza will be maintained by the existing driveway and easement located just west of the intersection of Finley Avenue and Newport Boulevard. The main entry to the hotel at Finley Avenue includes adequate parking spaces and vehicular area to accommodate short-term registration and valet parking without conflicting with vehicle access to Via Lido Plaza. The parking control gate at 32nd Street is designed and setback sufficiently to avoid conflicts along 32nd Street.
6. Closing the Property to unrestricted vehicular access by the public through the site to 32nd Street would discontinue direct vehicular access to Via Lido Plaza through an existing access gate located near 475 32"d Street. Despite the closure of this access point, adequate vehicular access to Via Lido Plaza for cars, delivery trucks and emergency vehicles is currently provided by an existing driveway at Finley Avenue and an existing driveway from Via Lido. Large delivery trucks and fire trucks can access both parking areas at Via Lido Plaza based upon information contained in a letter from Fuscoe Engineering dated April 27, 2014, that is included as part of the Response to Comments within the Certified Final EIR.
7. The Project is subject to the City's Outdoor Lighting requirements contained within Section 20.30.070 (Outdoor Lighting) of the NBMC.
8. Any rooftop mechanical equipment will continue to be fully enclosed or screened from view consistent with the NBMC.
9. The construction will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval shall be complied with.
Alcohol Sales
Finding:
D. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code.
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Facts in Support of Finding:
1. The hotel with its restaurant, bar and lounges has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC is maintained and that a healthy environment for residents and businesses is preserved. While the hotel is located in an area which has a higher concentration of alcohol licenses than some areas, the hotel will not operate as a "public premises" and appropriate licensing and enforcement will be administered by the California Department of Alcoholic Beverage Control. The location of the Project in relationship to residential zoning districts, day care centers, hospitals, park facilities, places of worship, schools, other similar uses and uses that attract minors has been considered. Operational conditions recommended by the Police Department for the sale of alcoholic beverages, including the requirement to obtain an operator license, will ensure compatibility with the surrounding uses and minimize alcohol related incidents.
2. The Property is in an area with a variety of land uses including commercial, retail, residential, and access the beach and bay. The operational characteristics have been conditioned to maintain the compatibility with surrounding land uses.
3. The Project does not involve an expansion of area devoted to alcohol sales and service. The existing use has been in operation for approximately four years and has not proven detrimental.
Conditional Use Permit
In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the NBMC, the following findings and facts in support of such findings are set forth as follows:
Finding:
E. The use is consistent with the General Plan and any applicable Specific Plan.
Facts in Support of Finding:
1. Fact in Support of Finding B.1 is hereby incorporated by reference.
2. The Property is not located within a specific plan area. . 07
3. The Project maintains consistency with the following Newport Beach General Plan Policies, as discussed in detail within Table 5.1-4 of the Certified EIR and as summarized below:
a. Land Use Element Policy LU 1.1 (Unique Environment). Maintain and enhance the beneficial and unique character of the different neighborhoods, business districts, and harbor that together identify Newport Beach. Locate and design development to reflect Newport Beach's topography, architectural diversity, and view sheds.
b. Land Use Element Policy LU 1.6 (Public Views). Protect and, where feasible, enhance significant scenic and visual resources that include open space, mountains, canyons, ridges, ocean, and harbor from public vantage points.
The Property is located within the Lido Village area of the City. The modified site layout, building architecture, and landscaping will be consistent with the Lido Village Design Guidelines and City -adopted goals to revitalize this resident and visitor -serving commercial area. The Project is within three City -designated, protected views and represent views toward Newport Bay and the Pacific Ocean (identified visual resources). As analyzed in the Certified EIR and Addendum No. 2, implementation of the proposed project would not impair the existing views to the Pacific Ocean and Newport Bay from these public coastal areas. Implementation of the proposed project would not significantly alter the natural landform.
C. Land Use Element Policy LU 2.6 (Visitor Serving Uses). Provide uses that serve visitors to Newport Beach's ocean, harbor, open spaces, and other recreational assets, while integrating them to protect neighborhoods and residents.
The Project will continue to provide visitors with accommodations located in proximity to recreational assets, such as the ocean. In addition, the Project will continue to provide public open space areas, including pedestrian plazas, landscape areas, and other amenities along Newport Boulevard and 32nd Street, providing passive recreation opportunities. The four-story massing of the building continues to create a sense of arrival at the entry, while stepping down in scale and providing architectural articulation along Newport Boulevard and 32"d Street. The architecture will continue to include the residential vernacular of local coastal homes, and the hotel's 16-97
residential scale would increase the pedestrian scale of the project site in context of the surrounding commercial uses.
d. Land Use Element Policy LU 2.8 (Adequate Infrastructure).
Accommodate the types, densities, and mix of land uses that can be adequately supported by transportation and utility infrastructure (water, sewer, storm drainage, energy, and so on) and public services (schools, parks, libraries, seniors, youth, police, fire, and so on).
There are adequate infrastructure and services available to serve the Project and it will be adequately supported by existing transportation infrastructure within the area.
e. Land Use Element Policy LU 3.2 (Growth and Change). Enhance existing neighborhoods, districts, and corridors, allowing for reuse and infill with uses that are complementary in type, form, scale, and character.
Changes in use and/or density/intensity should be considered only in those areas that are economically underperforming, are necessary to accommodate Newport Beach's share of projected regional population growth, improve the relationship and reduce commuting distance between home and jobs, or enhance the values that distinguish Newport Beach as a special place to live for its residents. The scale of growth and new development shall be coordinated with the provision of adequate infrastructure and public services, including standards for acceptable traffic level of service.
The Project will continue to provide visitor accommodations, recreational, personal services, shopping, dining, and assembly opportunities within Lido Village. The modified site layout, building architecture, and landscaping is planned to be consistent with the Lido Village Design Guidelines and the City's goals to revitalize Lido Village.
f. Land Use Element Policy LU 4.1 (Land Use Diagram). Accommodate land use development consistent with the Land Use Plan. Figure LU1 depicts the general distribution of uses throughout the City and Figure LU2 through Figure LU15 depict specific use categories for each parcel within defined Statistical Areas. Table LU1 (Land Use Plan Categories) specifies the primary land use categories, types of uses, and, for certain categories, the densities/intensities to be permitted. The permitted densities/intensities or amount of development for land use categories for which this is not included in Table LU1, are specified on the Land Use Plan, Figure LU4 through Figure LU15. These are intended to convey maximum and, in some 16-98
cases, minimums that may be permitted on any parcel within the designation or as otherwise specified by Table LU2 (Anomaly Locations).
The density/intensity ranges are calculated based on actual land area, actual number of dwelling units in fully developed residential areas, and development potential in areas where the General Plan allows additional development.
The Property is currently designated Commercial Visitor Serving — Lido Village. The Project would add 5 rooms to an existing 130-room hotel and is consistent with this designation and the referenced Policy. g. Land Use Element Policy LU 5.3.5 (Pedestrian -Oriented Architecture and Streetscapes). Require that buildings located in pedestrian -oriented commercial and mixed -use districts (other than the Newport Center and Airport Area, which are guided by Goals 6.14 and 6.15, respectively, specific to those areas) be designed to define the public realm, activate sidewalks and pedestrian paths, and provide "eyes on the street"...
The Project will maintain a site layout, building architecture, and landscaping that is consistent with the Lido Village Design Guidelines and the Lido Village Master Plan. The hotel will still be no more than four stories with architectural features up to 58.5-feet in height. The upper levels will remain unchanged and will still be set back away from the street edges, increasing the pedestrian scale from 32nd Street and Newport Boulevard.
The Project will continue to provide public open space areas, pedestrian plazas, landscape areas, and other amenities along Newport Boulevard and 32nd Street.
h. Land Use Element Policy LU 5.3.6 (Parking Adequacy and Location).
Require that adequate parking be provided and is conveniently located to serve tenants and customers. Set open parking lots back from public streets and pedestrian ways and screen with buildings, architectural walls, or dense landscaping.
Surface parking is primarily located east of the hotel building, away from Newport Boulevard. The parking lot will continue to be gated except for parking within the entry at Newport Boulevard and Finley Avenue and the on -street parking spaces located along 32nd Street. The surface parking would be screened from the open space/paseo and pedestrian areas by the 16-99
hotel structure and by landscaping located around the perimeter of the Project site.
i. Land Use Element Policy LU 5.6.1 (Compatible Development). Require that buildings and properties be designed to ensure compatibility within and as interfaces between neighborhoods, districts, and corridors.
The Project would continue to enhance pedestrian access along Newport Boulevard and 32nd Street through public open space areas, pedestrian plazas, and landscaped areas, providing a transition from Newport Bay to the Pacific Ocean. The pathway along Newport Boulevard would lead from the beach and the intersection of Newport Boulevard and 32"d Street to Finley Avenue, connecting with Lido Village. Thus, the Project would provide for a compatible interface between neighborhoods, districts, and corridors within the area.
j. Land Use Element Policy LU 5.6.2 (Form and Environment). Require that new and renovated buildings be designed to avoid the use of styles, colors, and materials that unusually impact the design character and quality of their location such as abrupt changes in scale, building form, architectural style, and the use of surface materials that raise local temperatures, result in glare and excessive illumination of adjoining properties and open spaces, or adversely modify wind patterns.
By maintaining the required setbacks to Newport Boulevard and 32nd Street, the Project is considered compatible in massing and scale to the surrounding uses. In addition, the Project complies with the Lido Village Design Guidelines and the NBMC, ensuring operational light and glare associated with street lighting, security lights, and interior lights would not be significant. The proposed materials would not raise local temperatures or result in glare or excessive illumination. In addition, the size and scale of the Project would not adversely modify wind patterns. k. Land Use Element Policy LU 5.6.3 (Ambient Lighting). Require that outdoor lighting be located and designed to prevent spillover onto adjoining properties or significantly increase the overall ambient illumination of their location.
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The Project is required to comply with Mitigation Measure AES-3 in order to ensure all construction -related lighting is located and aimed away from adjacent residential areas and consist of the minimal wattage necessary to provide safety and security at the Property.
Land Use Element Policy LU 6.1.1 (Adequate Community Supporting Uses). Accommodate schools, government administrative and operational facilities, fire stations and police facilities, religious facilities, schools, cultural facilities, museums, interpretative centers, and hospitals to serve the needs of Newport Beach's residents and businesses.
There are adequate infrastructure and services available to serve the Project.
M. Land Use Element Policy LU 6.8.1 (Urban Form). Establish development patterns that promote the reinforcement of Balboa Peninsula's pedestrian scale and urban form as a series of distinct centers/nodes and connecting corridors.
n. Land Use Element Policy LU 6.8.2 (Component Districts). Lido Village and McFadden Square should be emphasized as the primary activity centers of the northern portion of the Peninsula, linked by corridors of retail and visitor -serving uses along Newport Boulevard and a mix of marine - related and residential uses on the Bay frontage. These surround a residential core in the inland section of Cannery Village. Balboa Village will continue to serve as the primary center of the lower Peninsula, surrounded by residential neighborhoods along and flanking Balboa Boulevard.
The Project will remain consistent, as analyzed under Policies LU 5.3.5 and
5.3.6 above.
o. Land Use Element Policy LU 6.9.1 (Priority Uses). Encourage uses that take advantage of Lido Village's location at the Harbor's turning basin and its vitality and pedestrian character, including visitor -serving and retail commercial, small lodging facilities (bed and breakfasts, inns), and mixed - use buildings that integrate residential with retail uses [areas designated as "MU-W2", Subarea "A']. A portion of the Harbor frontage and interior parcels (Subarea "B') may also contain multi -family residential [designated 16-101
as `RM(20/ac)'7, and the parcel adjoining the Lido Isle Bridge, a recreational and marine commercial use [designated as "CM(0.3)'7.
The Project proposes to add 5 rooms to an existing 130-room boutique hotel, providing visitor accommodations, recreational, personal services, shopping, dining, and assembly opportunities within Lido Village in proximity to the Newport Harbor and the Ocean allowing the setting and location to enhance the proposed use. Pedestrian plazas, landscape areas, and other amenities will be maintained along Newport Boulevard and 32na Street, further enhancing the pedestrian character of the area.
P. Circulation Element Policy CE 2.1.1 (Level of Service Standards). Plan the arterial roadway system to accommodate projected traffic at the following level of service standards:
A. Level of Service (LOS) "D" throughout the City, unless otherwise noted.
B. LOS "E" at any intersection in the Airport Area shared with Irvine.
C. LOS "E" at Coast Highway (EtM and Dover Drive (NS) due to right-of- way limitations.
D. LOS "E" at Marguerite Avenue (NS) and Coast Highway (EVIL in the pedestrian -oriented area of Corona del Mar.
E. LOS "E" at Goldenrod Avenue (NS) and Coast Highway (EVIL in the pedestrian -oriented area of in Corona del Mar.
Implementation of the Project would not result in significant impacts to any of the study intersections based on the agency -established thresholds of significance.
q. Circulation Element Policy CE 2.2.6 (Emergency Access). Provide all residential, commercial, and industrial areas with efficient and safe access for emergency vehicles.
Egress/ingress for the Project has been designed to accommodate emergency vehicles to meet applicable Fire Code access requirements.
According to the Newport Beach Fire Department, all the fire apparatus 16-102
access road requirements, would be met with the Project. Access to all portions of Via Lido Plaza would continue to be met by public and private roadways.
r. Circulation Element Policy CE 5.1.2 (Pedestrian Connectivity). Link residential areas, schools, parks, and commercial centers so that residents can travel within the community without driving.
The Project will remain consistent, as analyzed under Policy LU 6.9.1 above.
S. Circulation Element Policy CE 7.1.1 (Required Parking). Require that new development provide adequate, convenient parking for residents, guests, business patrons, and visitors.
The Project will remain consistent, as analyzed under Policy 5.3.6 above. t. Natural Resources Element Policy NR 1.1 (Water Conservation in New Development). Enforce water conservation measures that limit water usage, prohibit activities that waste water or cause runoff, and require the use of water —efficient landscaping and irrigation in conjunction with new construction projects.
The Project would be required to comply with Chapter 14.17 (Water - Efficient Landscaping) of the NBMC, which establishes a structure for water -efficient landscapes in new and modified construction projects.
U. Natural Resources Element Policy NR 3.4 (Storm Drain Sewer System Permit). Require all development to comply with the regulations under the City's municipal separate storm drain system permit under the National Pollutant Discharge Elimination System.
The Project would be required to comply with the regulations under the National Pollutant Discharge Elimination System.
V. Natural Resources Element Policy NR 3.9 (Water Quality Management Plan). Require new development applications to include a Water Quality Management Plan (WQMP) to minimize runoff from rainfall events during construction and post -construction.
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The Applicant will be required to submit a Final Water Quality Management Plan (WQMP) for approval by the City that complies with the requirements of the latest Orange County Public Works Drainage Area Management Plan in accordance with Mitigation Measure HWQ-4 of the Certified EIR.
W. Natural Resources Element Policy NR 3.10 (Best Management Practices). Implement and improve upon Best Management Practices (BMPs) for residences, businesses, development projects, and City operations.
X. Natural Resources Element Policy NR 3.11 (Site Design and Source Control). Include site design and source control BMPs in all developments.
When the combination of site design and source control BMPs are not sufficient to protect water quality as required by the National Pollutant Discharge Elimination System (NPDES), structural treatment BMPs will be implemented along with site design and source control measures. y. Natural Resources Element Policy NR 3.20 (Impervious Surfaces).
Require new development and public improvements to minimize the creation of and increases in impervious surfaces, especially directly connected impervious areas, to the maximum extent practicable. Require redevelopment to increase area of pervious surfaces, where feasible.
The Project would incorporate Low Impact Development (LID) features and BMPs, which would include pervious pavement, infiltration trenches, and an infiltration gallery. Although impervious surfaces would be slightly increased with the Project, overall the Project would reduce runoff to the off -site storm drain facilities.
Z. Natural Resources Element Policy NR 8.1 (Management of Construction Activities to Reduce Air Pollution). Require developers to use and operate construction equipment, use building materials and paints, and control dust created by construction activities to minimize air pollutants.
The Project would be required to comply with Mitigation Measures AQ-1 and AQ-2 of the Certified EIR, reducing air pollutant emissions from construction activities. These measures call for the maintenance of 16-104
construction equipment, the use of non-polluting and non -toxic building equipment, and minimizing fugitive dust.
aa. Natural Resources Element Policy NR 18.1 (New Development).
Require new development to protect and preserve paleontological and archaeological resources from destruction, and avoid and minimize impacts to such resources in accordance with the requirements of CEQA. Through planning policies and permit conditions, ensure the preservation of significant archeological and paleontological resources and require that the impact caused by any development be mitigated in accordance with CEQA.
The Property does not contain any known archaeological or paleontological resources. Mitigation from the Certified EIR would require a Native American Monitor and Paleontological Resource Monitor be present during earth removal or ground disturbance activities at the site. If resources are discovered, all earth removal or disturbance activities would be suspended and a mitigation program would be implemented.
bb. Natural Resources Element Policy NR 18.3 (Potential for New Development to Impact Resources). Notify cultural organizations, including Native American organizations, of proposed developments that have the potential to adversely impact cultural resources. Allow qualified representatives of such groups to monitor grading and/or excavation of development sites.
The City has previously conducted Senate Bill 18 consultation for the project site as part of the environmental documentation for the City Hall Reuse Project, prior to the Certified EIR for the original Lido House Hotel project.
During the previous SB 18 consultation, the City received an inquiry from one tribal representative. The Native American representative indicated that he could coordinate monitoring services during grading/construction if it is determined that such monitoring is required. The tribal representative did not indicate any knowledge of the presence of any significant cultural or archaeological resources on the Property.
cc. Natural Resources Element Policy NR 20.1 (Enhancement of Significant Resources). Protect and, where feasible, enhance significant scenic and visual resources that include open space, mountains, canyons, 16-105
ridges, ocean, and harbor from public vantage points, as shown in Figure NR3.
The Project will remain consistent, as analyzed under Policy LU 1.1 above. dd. Natural Resources Element Policy NR 20.2. (New Development Requirements). Require new development to restore and enhance the visual quality in visually degraded areas, where feasible, and provide view easements or corridors designed to protect public views or to restore public views in developed areas, where appropriate.
The Property is within three City -designated protected views that represent views toward Newport Bay and the Pacific Ocean (identified visual resources). As analyzed in the Key View analysis of the Certified EIR, implementation of the proposed project would not impair the existing views to the Pacific Ocean and Newport Bay from these public coastal areas.
4. Addendum No. 2 finds the Project is consistent with these goals and policies. All mitigation measures specified in the Mitigation Monitoring and Reporting Program for the Certified EIR have been incorporated as conditions of approval to ensure this consistency is maintained.
Fin_ dinq:
F. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding
1. Facts in Support of Findings A.1, B.2, B.7, C.3, C.6, and C.7 are hereby incorporated by reference. As conditioned, the Project will maintain compliance with all applicable NBMC standards.
2. The hotel will continue to provide alcohol sales in conjunction with late night hours and as such, the operator is required to obtain a new Operator License from the Police Department pursuant to Chapter 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On -Site Consumption in Combination with Late Hours, Entertainment, and/or Dance) of the NBMC. This requirement is included in the conditions of approval.
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Finding:
G. The design, location, size, operating characteristics of the use are compatible with the allowed uses in the vicinity.
Facts in Support of Finding
1. Facts in Support of Findings A.1, B.2, B.3, B.5, C.2, C.3, C.5, D.1 and D.3 are all hereby incorporated by reference.
2. The proposed modifications to the existing hotel and its accessory structures are not changing the use, therefore, operation of the Project will not become incompatible with other existing and allowed uses in the vicinity. The added storage areas will help hotel staff be more efficient with less trips outside the building and the enlarged hallways will create more pre -function space to limit the amount of people outside during events. The new breakout rooms are intended to provide an enhanced accommodation that will serve the existing larger meeting and event rooms. Any events outside normal business operations will continue to be reviewed consistent with the provisions of the NBMC to ensure compatibility is maintained.
Finding:
H. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities.
Facts in Support of Finding:
1. The Property is approximately 4.25 acres in size and can accommodate the Project, including adequate parking based upon Project's anticipated parking demand as analyzed in the Linscott Law & Greenspan parking demand analysis and based upon the parking analysis contained in Section 5.5 Traffic/Circulation of the Lido House EIR. Additionally, the site also maintains a large, enhanced setback area comprising at least 20 percent of the site for public walkways, landscaping, and open space.
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2. Implementation of the Project will include demolition of the building at 475 32na Street and reconfiguration of the driveway accessed from 32na Street. The site will maintain direct access from 32na Street and Newport Boulevard at the signalized intersection with Finley Avenue.
3. Adequate public and emergency vehicle access, public services, and utilities exist to accommodate the Project as concluded by the Lido House Hotel FEIR No.
ER2014-003 (SCH#2013111022) (PA2013-217) and Addendum No. 2. The Project has also been reviewed and accepted in concept by the City Traffic Engineer and the Fire Department.
Finding:
1. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use.
Facts in Support of Finding:
1. The use has operated at this location for approximately four years and has not proven detrimental. The Project was also reviewed by the City's Code Enforcement Division and Police Department with no objection.
2. The Project is expected to enhance the hotel by providing additional accommodations and amenities for visitors. Operational conditions of approval are included to help ensure the use maintains harmony with the surrounding area.
3. The use authorized by this CUP is not a nightclub and its prohibition will avoid potential land use conflicts, nuisances, and police intervention potentially associated with nightclubs.
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EXHIBIT C
Conditions of Approval
Planning Division
1. The Project shall be in substantial conformance with the approved plans except as modified by applicable conditions of approval.
2. This Site Development Review and Conditional Use Permit shall expire unless exercised within 24 months from the date of approval of a Coastal Development Permit unless an extension is otherwise granted by the Community Development Director or the Planning Commission by referral or appeal.
3. Prior to the issuance of building permits, approval from the California Coastal Commission is required.
4. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval.
5. All development shall be implemented in compliance with all mitigation measures contained within the approved Mitigation Monitoring and Reporting Program of the Lido House Hotel, Final Environmental Impact Report No. ER2014-003 (SCH#2013111022).
6. The Applicant shall comply with all federal, state, and local laws. Violation of any of those laws in connection with the use may be cause for modification or revocation of this Site Development Review and Conditional Use Permit.
7. Approval of this Site Development Review and Conditional Use Permit authorize a hotel which is intended for occupancy by transients for dwelling, lodging, or sleeping purposes for periods of thirty (30) days or less. The selling of timeshares or any other form of fractional ownership of the hotel shall be prohibited.
Additionally, no portion of the hotel shall be rented or otherwise used for residential purposes.
8. Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division.
9. A copy of the Resolution approving this Site Development Review and Conditional Use Permit, including the conditions of approval within Exhibit "C" shall be incorporated into the final approved Building Division and field sets of plans prior to issuance of the building permits.
10. Prior to the issuance of a building permit, the Applicant shall submit a landscape 16-109
and irrigation plan prepared by a licensed landscape architect. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Division and the Municipal Operations Department. All planting areas shall be provided with a permanent underground automatic sprinkler irrigation system of a design suitable for the type and arrangement of the plant materials selected. The irrigation system shall be adjustable based upon either a signal from a satellite or an on -site moisture - sensor. Planting areas adjacent to vehicular activity shall be protected by a continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer.
11. All landscape materials and landscaped areas shall be installed and maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance.
12. Reclaimed water shall be used whenever available, assuming it is economically feasible.
13. Water leaving the project site due to over -irrigation of landscape shall be minimized. If an incident such as this is reported, a representative from the Code and Water Quality Enforcement Division of the City Manager's Office shall visit the location, investigate, inform and notice the responsible party, and, as appropriate, cite the responsible party and/or shut off the irrigation water.
14. Watering shall be done during the early morning or evening hours (between 4 p.m. and 9 a.m.) to minimize evaporation the following morning.
15. Water shall not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards.
Parking areas and vehicular driveways shall be swept on a weekly basis.
16. Prior to the final of building permits, the Applicant shall schedule an inspection by the Planning Division to confirm that all landscaping was installed in accordance with the approved plan.
17. All proposed signs shall be in conformance with applicable provisions of the Zoning Code and shall be approved by the City Traffic Engineer if located adjacent to the vehicular ingress and egress. The final location of the signs shall be reviewed by the City Traffic Engineer and shall conform to City Standard 110-L to ensure that adequate sight distance is provided. All signs shall be architecturally compatible and made with high quality, durable materials. Cabinet signs are prohibited. 16-110
18. Lighting shall be in compliance with applicable standards of the Zoning Code.
Exterior on -site lighting shall be shielded and confined within site boundaries. No direct rays or glare are permitted to shine onto public streets or adjacent sites or create a public nuisance. "Walpak" type fixtures are not permitted. Parking area lighting shall have zero cut-off fixtures and light standards shall not exceed 20 feet in height.
19. Prior to the issuance of building permits, the Applicant shall prepare a photometric study in conjunction with a final lighting plan for approval by the Planning Division.
20. The Property shall be illuminated for security and the site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative nuisance to surrounding property. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated.
21. Prior to issuance of the certificate of occupancy, the Applicant shall schedule an evening inspection by the Planning Division to confirm control of light and glare as required by applicable provisions of Title 20 of the NBMC and the conditions of approval.
22. The operator of the facility shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons and any events conducted on the project site, food service operations, delivery/loading operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 (Community Noise Control) and other applicable noise control requirements of the Newport Beach Municipal Code
23. All mechanical equipment shall be screened from view of consistent with Title 20 of the NBMC and shall be sound attenuated in accordance with Chapter 10.26 (Community Noise Control) of the NBMC.
24. Trash receptacles for patrons shall be conveniently located both inside and outside of the facility and shall be routinely emptied. All trash shall be stored within the building or within trash bins stored within trash enclosure(s).
25. The exterior of the business shall be maintained free of litter and graffiti at all times.
The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises as necessary.
26. Storage of any materials outside of the buildings or in parking areas property shall be prohibited.
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27. The trash enclosure shall accommodate a minimum of four, 4-foot by 6-foot trash bins and shall include doors and a roof structure to screen the contents of the enclosure. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division.
28. The construction and equipment staging areas shall be located in the least visually prominent area on the site and shall be properly maintained and/or screened to minimize potential unsightly conditions.
29. A six-foot high screen and security fence shall be placed around the construction site during construction. Construction equipment and materials shall be properly stored on the site when not in use.
30. Traffic control and truck route plans shall be reviewed and approved by the Public Works Department before implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman.
31. Construction activities which produce loud noise that disturb, or could disturb a person of normal sensitivity who works or resides in the vicinity, shall be limited to the weekdays between the hours of 7 a.m. and 6:30 p.m. No such noise occurrences shall occur at any time on Saturdays, Sundays or federal holidays.
32. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoeverwhich may arise from or in any manner relate (directly or indirectly) to City's approval of the Lido House Hotel Expansion including, but not limited to, Planning Application No.
PA2020-068 including, but not limited to, the related General Plan Amendment, Local Coastal Program Amendment, Zoning Code Amendment, Site Development Review, Conditional Use Permit and/or the City's related California Environmental Quality Act determinations and the certification of the Final Environmental Impact Report No. ER2014-003 (SCH#2013111022) and Addendum No. 2 to Final Environmental Impact Report No. ER2014-003. 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 Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the 16-112
indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed 1
requirements prescribed in this condition
the City from any lawsuit, or damages,
related thereto, that is brought by any I
litigation initiated by the City related to tl
Fire Station No. 2 site.
Building Division
the City pursuant to the indemnification
Applicant shall not be required to indemnify
costs, attorneys' fees, or other expenses
erson or entity that is currently a party to
e former city hall site, including the former
33. The Applicant is required to obtain all applicable permits from the City's Building Division and Fire Department for demolition and construction. The construction plans must comply with the most recent, City -adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. The construction plans must comply with the California Green Building Standards Code.
34. A grading bond shall be required prior to grading permit issuance.
35. A geotechnical report shall be submitted to the Building Division for review prior to grading permit issuance.
36. Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) to comply with the General Permit for Construction Activities shall be prepared, submitted to the State Water Quality Control Board for approval and made part of the construction program. The project Applicant will provide the City with a copy of the NOI and their application check as proof of filing with the State Water Quality Control Board. This plan will detail measures and practices that will be in effect during construction to minimize the project's impact on water quality.
37. Prior to issuance of grading permits, the Applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Department and Code and Water Quality Enforcement Division. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur.
38. A drainage and hydrology study shall be submitted prior to grading permit issuance.
39. A wheelchair -accessible path of travel shall be provided from Finley Avenue, Newport Boulevard, and 32nd Street including public transportation areas to all guest rooms and facilities. Proposed wood shingles shall be Class A.
40. Fire Sprinkler System shall be Type 13.
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Fire Department
41. The Applicant shall provide an exiting analysis for all new assembly spaces.
42. New buildings shall have approved radio coverage for emergency responders within the building based on the existing coverage levels of the public safety communication systems utilized by the jurisdiction, measured at the exterior of the building. This section shall not require improvement of the existing public safety communication systems. If the existing structure has an emergency responder radio coverage system, the addition shall be accounted for and improvement shall be made to the system unless testing by a third party determines that it is not required.
43. A fire flow determination consistent with Newport Beach Fire Department Guideline B.01 "Determination of Required Fire Flow" shall be required for the proposed buildings prior to the issuance of a building permit. The fire flow information shall be included on final building drawings.
44. All weather access roads shall be installed and made serviceable prior to and during time of construction.
45. Fire hydrants shall be required to be located within 400 feet of all portions of the building subject to the review and approval of the Newport Beach Fire Department.
Additional hydrants may be required dependent on fire flow calculations. All existing and proposed fire hydrants within 400 feet of the project site shall be shown on the final site plan.
46. Blue hydrant identification markers shall be placed adjacent to fire hydrants consistent with Newport Beach Fire Department guidelines.
47. A fire apparatus access road shall be provided to within 150 feet of all exterior walls of the first floor of the building. The route of the fire apparatus access road shall be approved by the Fire Department. The 150 feet is measured by means of an unobstructed route around the exterior of the building. Newport Beach Fire Department Guideline C.01 "Emergency Fire Access: Roadways, Fire Lanes, Gates and Barriers."
48. Minimum width of a fire access roadway shall be 20 feet, no vehicle parking allowed. The width shall be increased to 26 feet within 30 feet of a hydrant, no vehicle parking allowed. Access roads shall have an unobstructed vertical clearance of not less than 13 feet, 6 inches. Newport Beach Fire Department Guideline C.01.
49. Apparatus access roads must be constructed of a material that provides an all weather driving surface and capable of supporting 72,000 pounds imposed load for fire apparatus and truck outrigger loads of 75 pounds per square inch over a 16-114
two foot area. Calculations stamped and signed by a registered professional engineer shall certify that the proposed surface meets the criteria of an all weather driving surface and is capable of withstanding the weight of 72,000 pounds, Newport Beach Fire Department Guideline C.01.
50. Vehicle access gates or barriers installed across fire apparatus access roads shall be in accordance with the Newport Beach Fire Department Guidelines and Standards C.01 "Emergency Fire Access: Roadways, Fire Lanes, Gates, and Barriers." The minimum width of any gate or opening necessary or required as a point of access shall be not less than 14 feet unobstructed width. As amended by Newport Beach, California Fire Code Section 503.6.1.
51. All security gates shall have a Knox -box override and an approved remote opening device. Newport Beach Fire Department Guideline C.01.
52. Fire lanes shall be identified as per Newport Beach Fire Department Guideline C.02.
53. An automatic fire sprinkler system will be required and shall be installed as per California Fire Code Section 903.
54. The underground fire line will be reviewed by the fire department. A separate submittal is required which requires an "F" Permit. The underground fire line is a separate submittal (cannot be part of the overhead fire sprinkler plans, nor precise or rough grading plans) and must be designed as per N.B.F.D. Guideline F.04 "Private Hydrants and Sprinkler Supply Line Underground Piping."
55. Standpipes systems shall be provided as set forth in California Fire Code Section 905.
56. Hood Fire Suppression system will be required for cooking appliances and plans must be submitted to the fire department for approval prior to installation.
57. A fire alarm system will be required and shall be installed as per California Fire Code Section 907.
58. Fire extinguishers are required and shall be located and sized as per the California Fire Code.
59. Emergency power shall be provided for exit signs as required in Section 1013.6.3.
The system shall be capable of powering the required load for a duration of not less than 90 minutes.
60. Public Safety Radio System Coverage (800 MHz firefighter's radio system) shall be provided as per Newport Beach Fire Department Guideline D.05. 16-115
61. Premises identification shall be provided as City of Newport Beach amended California Fire Code Section 505.1.1. Addresses shall be placed above or immediately adjacent to all doors that allow fire department access. In no case shall the numbers be less than four inches in height with a one-half inch stroke.
62. Fireplaces and fire pit clearances shall be provided as per manufacturer's recommendations and/or California Mechanical Code requirements.
63. Awnings and canopies shall be designed and installed as per California Building Code Section 3105 with frames of noncombustible material, fire -retardant -treated wood, wood of Type IV size, or 1-hour construction with combustible or noncombustible covers and shall be either fixed, retractable, folding or collapsible.
64. All building and structures with one or more passenger service elevators shall be provided with not less than one medical emergency service elevator to all landings.
The medical emergency service elevator shall accommodate the loading and transport of an ambulance gurney or stretcher 24 inches by 84 inches with not less than 5-inch radius corner in the horizontal position. The elevator car shall be of such a size to accommodate a 24-inch by 84-inch ambulance gurney or stretcher with not less than 5-inch radius corners, in the horizontal, open position, shall be provided with a minimum clear distance between walls or between walls and door excluding return panels not less than 80 inches by 54 inches and a minimum distance from wall to return panel not less than 51 inches with a 42-inch side slide door as per California Building Code Section 3002.
65. Fire Master Plan shall be submitted to the Fire Prevention Division for approval.
The plan shall include information on the following (but not limited to) subjects: fire department vehicle access to the project site, secondary emergency vehicle access, firefighter access (hose pull) around structures, fire lane identification, location of fire hydrants and other fire department appliances, and the location and type of gates or barriers that restrict ingress/egress.
66. Building permit plans shall be submitted to the Fire Department for plan check and approval prior to the issuance of building permits.
Public Works Department
67. All improvements shall be constructed as required by Ordinance and the Public Works Department.
68. An encroachment permit is required for all work activities and all non-standard improvements within the public right-of-way and public property.
69. Prior to building permit issuance, a final Construction Management Plan (CMP) shall be reviewed and approved by the Community Development Director and City Traffic Engineer.
16-116
70. Prior to building permit issuance, a final Parking Management Plan (PMP) shall be reviewed and approved by the Community Development Director and City Traffic Engineer.
71. The Applicant shall be required to construct fourteen (14) new public parking spaces along Via Oporto and shall coordinate with the City's Finance Department for the installation of parking meters and/or pay stations and signage.
72. All landscaping along Via Oporto adjacent to the fourteen (14) public parking spaces shall be maintained by the Applicant.
73. The reconfigured driveway approach along the 32nd Street frontage shall be constructed per City Standard.
74. The Applicant shall construct new planned improvements along 32nd Street between Newport Boulevard and Lafayette Avenue, including but not limited to, sidewalk, curb/gutter, striping, signage, driveway, street light relocation, parking meter post relocation, and roadway improvement. All work shall be per City Standards and approved by the Public Works Director. The cost shall be borne by the Applicant.
75. The public pedestrian easement along Newport Boulevard shall be a minimum of 8 feet in width and clear of any obstructions, unless otherwise approved by the Public Works and the Community Development Departments.
76. The Applicant shall reconstruct the existing broken and/or otherwise damaged concrete sidewalk panels, curb and gutter, and driveway approaches along the Newport Boulevard and 32nd Street frontages.
77. All existing curb ramps along the project frontages shall be upgraded to current ADA standards.
78. All improvements shall comply with the City's sight distance requirement. The project driveways shall be designed to accommodate adequate vehicular sight distance per City Standard 105. Walls, signs, and other obstructions shall be limited to 30 inches in height and planting shall be limited to 24 inches in height within the limited use areas.
79. In case of damage done to public improvements surrounding the development site by the private construction, additional reconstruction within the public right-of-way could be required at the discretion of the Public Works Inspector.
80. All on -site drainage shall comply with the latest City Water Quality requirements.
81. All unused water services to be abandoned shall be capped at the main (corporation stop) and all unused sewer laterals to be abandoned shall be capped at property line.
16-117
82. All new and existing water services (i.e., domestic, landscaping, or fire) shall have its own water meter and shall be protected by a City approved backflow assembly.
83. All new and existing sewer laterals shall have a sewer cleanout installed per STD- 406-L.
84. Water and Wastewater demand studies shall be prepared and submitted for review and approval prior to approval of the Grading Plan. If studies show that there are impacts based on the peak demand flows calculated, improvements to the City's infrastructures will be required at the cost of the development.
85. All parking stalls and drive aisle widths shall be per City Standards 805-L-A and 805-L-B.
86. A Valet Operations Plan shall be reviewed and approved by the City Traffic Engineer and the Community Development Director prior to the issuance of a certificate of occupancy. Future changes to the plan shall also require the review and approval.
87. All valet operation shall be accommodated on -site at all times.
88. Tandem parking spaces shall be signed and used for valet parking only. They may be used for long-term reserved parking. They shall not be used for public parking.
89. All landscaping, hardscape, ground cover, and trees within the project site and along the Finley Avenue, Newport Boulevard, and 32nd Street frontages shall be maintained by the Applicant.
90. Remove pendant lighting along Finley Avenue to provide adequate vertical clearance.
Police Department
91. State Department of Alcoholic Beverage Control license types classified as "Public Premises" shall be prohibited.
92. If required by the State Department of Alcoholic Beverage Control, the Applicant shall provide the Chief of Police a statement of facts showing why the issuance of alcohol licenses for the proposed project would serve public convenience or necessity.
93. Approval of this Site Development Review and Conditional Use Permit does not permit the hotel or its restaurants, bars, lounge, or assembly areas to operate as a nightclub as defined by the Newport Beach Municipal Code, unless the Planning Commission first approves such permit.
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94. Prior to final inspection of the building permit, the operator shall obtain an Operator License pursuant to Chapter 5.25 (Operator License) of the NBMC, unless it is determined the Operator License is not required. The Operator License may be subject to additional and/or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation facility.
95. Prior to occupancy and operation of the proposed hotel and its ancillary uses, a comprehensive security plan shall be submitted to the Newport Beach Police Department for review and approval.
96. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition.
97. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when offered in conjunction with food ordered from the full service menu.
98. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted.
99. All persons selling alcoholic beverages shall be over the age of 21 and undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach.
100. The operator of the facility shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. Pre-recorded music may be played in the tenant space, provided exterior noise levels outlined below are not exceeded. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 (Community Noise Control) of the Newport Beach Municipal Code. 101. That no outdoor sound system, loudspeakers, or paging system shall be permitted in conjunction with the hotel, hotel restaurant or lounge facility. 102. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance within the facility, adjacent properties, or surrounding public areas, sidewalks, or parking lots of the restaurant, 16-119
during business hours, if directly related to the patrons of the establishment surrounding residents.
103. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee.
104. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the NBMC to require such permits.
105. There shall be no on -site radio, televisions, video, film, or other electronic media broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach.
106. Any event or activity staged by an outside promoter or entity, where the Applicant, operator, owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge is prohibited.
107. The operator of the establishment shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drink.
Real Property Manager
108. Prior to building permit issuance, the Applicant shall work with the City's Real Property Manager to modify the proposed landscaping around the greenhouse area, such that it does not restrict use of the surrounding area for events. 109. Prior to building permit issuance, the Applicant shall work with the City's Real Property Manager to enhance the western wall of the new breakout room by considering adding transom windows or some similar feature that breaks up the wall massing.
110. Prior to building permit issuance, the Applicant shall work with the City's Real Property Manager to ensure that adequate pedestrian paths of travel are provided connecting the hotel to the sidewalk and new public parking along Via Oporto. 111. Prior to building permit issuance, the Applicant shall pursue and execute a lease amendment.
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112. The gates proposed for access through the new fencing along Newport Boulevard shall be removable and shall only be put in place during events. The pedestrian walkway shall always be freely open and accessible when an event is not occurring. 16-121
Attachment E
Ordinance No. 2022-22, Approving the Zoning Code Amendment 16-122
ORDINANCE NO. 2022- 22
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING A
ZONING CODE AMENDMENT FOR THE LIDO HOUSE
HOTEL LOCATED AT 3300 NEWPORT BOULEVARD AND
475 32ND STREET (PA2020-068)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, an application was filed by R.D. Olson Development ("Applicant") with respect to property located at 3300 Newport Boulevard and 475 32nd Street as legally described in Exhibit "A," which is attached hereto and incorporated by reference ("Property");
WHEREAS, on September 9, 2014, the City Council approved General Plan Amendment No. GP2012-002, Coastal Land Use Plan Amendment No. LC2012-001, Zoning Code Amendment No. CA2012-003, Site Development Review No. SD2014-001, Conditional Use Permit No. UP2014-004, and Traffic Study No. TS2014-005 for the development of Lido House Hotel at 3300 Newport Boulevard; WHEREAS, the Applicant proposes a 15,103 square -foot expansion of the Lido House Hotel to add five cottages, 28 private valet parking spaces, 14 public parking spaces, a greenhouse, a walkway, breakout rooms, a rooftop enclosure, and landscaping and fencing improvements along the perimeter of the Property ("Project"); WHEREAS, the Project requires the following approvals from the City:
• General Plan Amendment ("GPA") — To amend Anomaly No. 85 to increase the development limit to 118,573 gross square feet;
• Local Coastal Program Amendment ("LCPA") — To increase the development limit to 118,573 gross square feet within both the Coastal Land Use Plan and Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC");
16-123
Ordinance No. 2022-
• Zoning Code Amendment ("ZCA") — To increase the development limit to 118,573 gross square feet;
• Major Site Development Review Amendments ("SDR")— To ensure the changes to the Property are developed in accordance with applicable development standards;
• Conditional Use Permit Amendments ("CUP") — To allow the operational changes that result from the changed site plan and floorplan and the sale of alcohol; and
• Addendum No. 2 to the Certified Final Environmental Impact Report for the Lido House Hotel — The addendum addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is designated Visitor Serving Commercial — Lido Village (CV-LV) and Anomaly No. 85 by the City of Newport Beach General Plan ("General Plan") and located within with the Commercial Visitor -Serving —Lido Village (CV-LV) zoning district,
WHEREAS, the Planning Commission held a duly noticed public hearing on July 21, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing;
WHEREAS, at the conclusion of the public hearing, the Planning Commission voted unanimously (7 ayes — 0 nays) to adopt Planning Commission Resolution No.
PC2020-020 recommending approval of the Project to the City Council; and WHEREAS, the City Council held a duly noticed public hearing on October 25, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the public hearing was provided in accordance with the Ralph M. Brown Act and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing.
16-124
Ordinance No. 2022-
NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows:
Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation.
Section 2: The City Council finds amendments to Title 20 (Planning and Zoning) of the NBMC are legislative acts. Neither Title 20 nor State Planning Law set for any required findings for either approval or denial of such amendments. Notwithstanding the foregoing, the Zoning Code Amendment is consistent with the corresponding General Plan Amendment and Coastal Land Use Plan Amendment.
a. The Project allows enlarged hallways, an enclosed conference room breakout space, an enclosed "greenhouse" breakout and seating area, larger storage spaces, three slightly larger hotel rooms, and five additional hotel rooms. These changes constitute a 14.6-percent increase in floor area of the hotel and related amenities. Collectively, these changes should enhance the functionality of the hotel and the experience of guests and visitors.
b. The Project includes the removal of the former Fire Station No. 2 building and the construction of surface parking in its place, including 14 new public parking spaces accessed from Via Oporto. These parking spaces will enhance access by increasing the public parking pool in a commercial area frequented by residents and visitors alike.
c. A parking demand analysis was prepared by Linscott, Law & Greenspan on June 8, 2022, for the Project and has been reviewed and accepted by the City Traffic Engineer. The Project would result in a negligible increase in predicted traffic and parking demands. The predicted traffic to and from the proposed hotel will remain less than what the former City Hall site generated. Additionally, the Project provides additional parking spaces to serve the public, thus, reducing overall demand for parking in the surrounding area. d. The increased floor area will not significantly reduce publicly visible open space, nor will it decrease the parking provided. The increased hotel floor area would be located on the first, second, third and fourth levels, but would not increase the height of the existing hotel. The Project would remain consistent 16-125
Ordinance No. 2022-
with remaining and unchanged applicable standards of the CV-LV Zoning District and Coastal Land Use Policy 4.4.2-1, which limit the height of development.
Section 3: The City Council hereby approves the Zoning Code Amendment reviewed under PA2020-068, as depicted in Exhibit "B," which is attached hereto and incorporated herein by reference.
Section 4: The City Council authorizes City staff to correct any typographical or scrivener's errors in compiling the final documentation, without the need for further review or approval by the City Council.
Section 5: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance.
Section 6: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 7: Pursuant to Section 15062 of the California Environmental Quality Act ("CEQA") Guidelines, the changes authorized under the Project are not substantial, as they do not involve new significant effects or a substantial increase in the severity of previously identified significant effects, and therefore, a subsequent Environmental Impact Report ("EIR") does not need to be prepared. The City prepared and certified a final EIR for the Lido House Hotel (SCH#2013111022). State CEQA Guidelines allow for the updating and use of a previously certified EIR for projects that have changed or are different from the previous project. In cases where changes or additions occur with no new significant environmental impacts, an addendum to the previously certified EIR may be prepared pursuant to CEQA Guidelines Section 15164. The City prepared Addendum No. 2 to the Lido House Hotel's final EIR for the Project, which concludes there are no new environmental impacts and no impacts of greater severity that would result from approval and implementation of the Project.
16-126
Ordinance No. 2022-
Section 8: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged and shall be in full force and effect.
Section 9: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 25t" day of October, 2022, and adopted on the 15t" day of November, 2022, by the following vote, to -wit:
AYES:
NOES:
ABSENT:
KEVIN MULDOON, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Je" , C o��
R N C. HARP, CITY ATTORNEY
Attachment: Exhibit A — Legal Description
Exhibit B — Zoning Code Amendment
16-127
EXHIBIT A
Legal Description
LEGAL DESCRIPTION:
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1
THAT PORTION OF LOTS 3, 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10
WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT FILED IN THE DISTRICT LAND OFFICE, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF "THE HUDSON" WITH THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 21 IN BLOCK 431 OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 0'44'30" WEST ALONG SAID NORTHERLY PROLONGATION 400.00 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE AND LOT 1 IN BLOCK "A" OF SAID LANCASTER'S ADDITION TO NEWPORT BEACH 461.53 FEET TO A POINT IN THE EASTERLY LINE OF SAID CENTRAL AVENUE, AS SHOWN ON TRACT NO. 108, AS SHOWN ON A MAP RECORDED IN BOOK 2, PAGES 1 OF SAID MISCELLANEOUS MAPS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID CENTRAL AVENUE 401.79 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE EASTERLY ALONG THE NORTHERLY OF SAID LOT 1 AND SAID NORTHERLY LINE OF "THE HUDSON" 495.33 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED IN THE DEED ATTACHED TO THAT CERTAIN RESOLUTION NO. 3284 OF THE CITY COUNCIL OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH11, 1946 IN BOOK 1404, PAGE130 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 2 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF SAID OFFICIAL RECORDS.
PARCEL 2:
BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE
EASTERLY ALONG THE NORTHERLY LINE OF WASHINGTON AVENUE, NOW KNOWN AS 32ND STREET, TO THE INTERSECTION WITH THAT PORTION OF THE BULKHEAD LINE ESTABLISHED BY THE WAR DEPARTMENT IN 1936 AND SHOWN ON THE WAR
DEPARTMENT MAP OF NEWPORT BAY SHOWING HARBOR LINE, EXTENDING BETWEEN BULKHEAD STATION NO.124 AND BULKHEAD STATION NO.125; THENCE NORTH 27,30,001,
WEST ALONG SAID BULKHEAD LINE TO ITS INTERSECTION WITH THE NORTHERLY LINE OF "THE HUDSON" AS SHOWN ON SAID MAP OF LANCASTER'S ADDITION; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID "THE HUDSON" TO THE NORTHEAST 16-128
CORNER OF LOT 1 OF SAID BLOCK"A"; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOTS 1 AND 2 TO THE POINT OF BEGINNING.
PARCEL 3:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGES 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE 20.00 FOOT ALLEY AS VACATED BY RESOLUTION NO. 3280 OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A CERTIFIED COPY OF WHICH RECORDED MARCH 11, 1946 IN BOOK 1400, PAGE 189 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST ALONG THE EASTERLY LINE OF SAID LOT 3, A DISTANCE OF 90.00 FEET; THENCE NORTH 40'47'07" WEST 170.97 FEET TO A POINT IN THE WESTERLY LINE OF SAID 20.00 FOOTALLEY; THENCE SOUTH 0'44'30" EASTALONG THE WESTERLY LINE OF SAID ALLEY 220.89 FEET TO THE SOUTHWESTERLY CORNER OF TRACT NO. 907, AS SHOWN ON A MAP RECORDED IN BOOK 28, PAGES 25 TO 36 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 89'15'30" EAST ALONG THE SOUTHERLY LINE OF SAID TRACT NO. 907 AND SAID LOT 3, A DISTANCE OF 110.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THE LAND DESCRIBED IN DEED TO THE GRIFFITH COMPANY RECORDED JUNE 15, 1953 IN BOOK 2520, PAGE 577 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 4:
THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 3; THENCE NORTH 0'44'30" WEST 74.46 FEET ALONG THE EAST LINE OF SAID LOT TO THE MOST SOUTHERLY CORNER OF THE LAND DESCRIBED AS PARCEL 1 IN DEED TO THE GRIFFITH COMPANY RECORDED MARCH 23, 1948 IN BOOK 1741, PAGE 174 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 40'47'07" WEST ALONG THE SOUTHWESTERLY LINE OF SAID LAND OF GRIFFITH COMPANY, A DISTANCE OF 69.945 FEET; THENCE NORTH 891630" EAST 45.00 FEET TO THE EAST LINE OF SAID LOT 3; THENCE SOUTH 0'44'30" EAST 53.54 FEET TO THE TRUE POINT OF BEGINNING.
PARCFI 5-
LOTS ONE (2) AND TWO (2) IN BLOCK "A" OF "LANCASTER'S ADDITION TO NEWPORT BEACH' AS SHOWN ON A MAP RECORED IN BOOK 5, PAGE 14 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA
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EXHIBIT B
Zoning Code Amendment
Section 1: Amend Section 20.14.010 (Zoning Map Adopted by Reference) of the Newport Beach Municipal Code (NBMC) to modify Anomaly Number 85 as follows:
Anomaly
Development
Limit sf
Development Limit
Other
Additional Information
Number
Accessory commercial floor area is
allowed in conjunction with a hotel and it is
85 118,573 sf of hotel
included within the hotel development
limit. Municipal facilities are not restricted
or included in any development limit.
Section 2: Amend the row entitled "Setbacks" in Table 2-7 (Development Standards for Commercial Retail Zoning Districts) of Section 20.20.030 (Commercial Zoning Districts General Development Standards) of Title 20 (Planning and Zoning) of the NBMC to read as follows:
TABLE 2-7
DEVELOPMENT STANDARDS FOR COMMERCIAL RETAIL ZONING DISTRICTS Development
Additional
Feature
CC
CG
CM
CN
CV
CV-LV
Requirements
Setbacks
Minimum setbacks required for primary structures. See Section 20.30.110(D) (Allowed Encroachments into Setback Areas) for setback measurement, allowed projections into setbacks, and exceptions.
Front
0 0
0 0
0 Newport Blvd:
1 ft. for below grade
structures;
20 ft. for structures up to
35 ft. in height;
60 ft. for structures over
35 ft. in height
Side (interior, each):
Abutting
0 0
0 0
0 1 ft. for below grade
nonresidential
structures;
5 ft. for above grade
structures
Abutting
5 5
5 ft.
5 ft.
5 ft.
5 ft.
residential
ft.
ft.
Side (Street side)
0 0
0 0
0 32nd Street:
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TABLE 2-7
DEVELOPMENT STANDARDS FOR COMMERCIAL RETAIL ZONING DISTRICTS Development
Additional
Feature
CC
CG
CM
CN
CV
CV-LV
Requirements
1 ft. for below grade
structures;
1 ft. for structures up to 35
ft. in height;
70 ft. for structures over
35 ft. in height
Via Oporto:
0 Rear:
Abutting an alley
10 10
10 ft.
10 ft.
10 ft.
5 ft.
ft.
ft.
Not abutting an
0 0
0 0
0 0
alley
Abutting
5 5
5 ft.
5 ft.
5 ft.
5 ft.
residential
ft.
ft.
Section 3: Amend the row entitled "Height" in Table 2-7 (Development Standards for Commercial Retail Zoning Districts) of Section 20.20.030 (Commercial Zoning Districts General Development Standards) of Title 20 (Planning and Zoning) of the NBMC to read as follows:
TABLE 2-7
DEVELOPMENT STANDARDS FOR COMMERCIAL RETAIL ZONING DISTRICTS Additional
Development Feature CC CG CM CN CV CV-LV Requirements
Height Maximum allowable height of structures without discretionary approval. See Section 20.30.060 (Height Limits and Exceptions) for height measurement requirements. See Section 20.30.060(C) (Increase in Height Limit) for possible increase in height limit.
Within Shoreline Height
Limit Zone
26 ft. with flat roof; less
than 3/12 pitch
31 ft. with sloped roof;
3/12 or greater pitch
Not within Shoreline Height 32 ft. with flat roof, less Limit Zone than 3/12 pitch
55 ft. with flat roof, less than
3/12 roof pitch;
60 ft. with sloped roof, 3/12
roof pitch or greater (4)
N/A
20.30.060
See CLUP Policy4.4.2-
1 16-131
TABLE 2-7
DEVELOPMENT STANDARDS FOR COMMERCIAL RETAIL ZONING DISTRICTS Additional
Development Feature CC CG CM CN CV CV-LV Requirements
37 ft. with sloped roof,
3/12 or greater pitch
Within High Rise Height Area
(See Figure H-1, attached to 300 N/A
the ordinance codified in
this title).
Section 4: Delete and renumber the footnotes for Table 2-7 (Development Standards for Commercial Retail Zoning Districts) of Section 20.20.030 (Commercial Zoning Districts General Development Standards) of Title 20 (Planning and Zoning) of the NBMC to read as follows:
Notes:
(1) All development and the subdivision of land shall comply with the requirements of Title 19 (Subdivisions).
(2) In the CG Zoning District, when 0.3/0.5 is shown on the Zoning Map, the FAR may be increased to a maximum of 0.5 when two or more legal lots are merged to accommodate larger commercial development projects in compliance with General Plan Policy LU 6.19.13 and Title 19 (Subdivisions).
(3) Portions of legal lots that are submerged lands or tidelands shall be included in the land area of the lot for the purpose of calculating the allowable floor area for structures. (4) Architectural features such as domes, towers, cupolas, spires, and similar structures may be up to 65 feet in height.
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Attachment F
Draft Second Lease Amendment Between the
City of Newport Beach and Lido House, LLC
[this item will be available by Friday, October 21, 2022] 16-123
Attachment F
Draft Second Lease Amendment Between the
City of Newport Beach and Lido House, LLC
16-123 1
SECOND AMENDMENT TO GROUND LEASE
THIS SECOND AMENDMENT TO GROUND LEASE ("Second Amendment') is entered into this day of , 2022, by and between THE CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Lessor" or "City"), and LIDO HOUSE, LLC, a California limited liability company ("Lessee"), individually referred to as "Party" or collectively "Parties."
RECITALS
A. On September 9, 2014, Lessor and Olson Real Estate Group, Inc., a California corporation doing business as R.D. Olson Development ("R.D. Olson Development'), entered into that certain Ground Lease ("Lease") for the development of a hotel with one hundred thirty (130) guest rooms and related facilities on City owned land at 3300 Newport Boulevard in the City of Newport Beach, County of Orange, State of California ("Premises").
B. On May 3, 2016, a First Amendment to Lease to amend and clarify the Legal Description and the Depiction of the Premises subject of the Lease was executed.
C. On May 3, 2016, an Assignment and Assumption of Lease was executed, whereby all the rights, title and interest in the Lease were transferred by R.D. Olson Development to Lessee.
D. Lessee proposes to construction five (5) cottages, fourteen (14) public parking spaces, public sidewalks, and public landscaping areas adjacent to the Premises at the contiguous real property located at 475 32"d Street in Newport Beach, County of Orange, State of California, as more particularly described below ("Site").
E. The Site shall include certain public benefits including, but not limited to, construction and maintenance of public parking spaces to serve residents and visitors.
F. The Parties desire to enter into this Second Amendment to Lease to amend the Legal description and depiction of the Premises to include the Site, and to incorporate certain terms in the Second Amendment as part of the terms and provisions of the Lease.
NOW, THEREFORE, for good and valuable consideration, including the mutual promises contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
TERMS
1. Interpretation. The terms used herein and not specifically defined shall have the same meaning as in the Lease. Lessor and Lessee acknowledge that there are no agreements, understanding, restrictions, warranties, representations, or covenants between the parties relating 1 16-123 2
to the Lease other than those set forth in this Second Amendment. Except to the extent the Lease is modified by this Second Amendment, the remaining terms and provisions of the Lease shall remain unmodified and in full force and effect.
2. Legal Description of the Premises and Site. The Legal Description of the Premises attached to the Lease as Exhibit A-1 is amended in its entirety and hereby replaced with the Exhibit A-1 attached hereto to include the Legal Description of the Premises and the Site, which Exhibit A-1 shall be amended, if necessary, after receipt by the parties of an ALTA survey reflecting the Legal Description.
3. Depiction of the Premises and Site. The Depiction of the Premises attached to the Lease as Exhibit A-2 is amended in its entirety and replaced with the Exhibit A-2 attached hereto, to include the depiction of the Premises and the Site.
4. Exhibits. To the extent that the Exhibit A-1 and the Exhibit A-2 attached hereto conflict with any provision or exhibit attached to the existing Lease, the Exhibit A-1 and the Exhibit A-2 attached to this Amendment and made a part hereof shall control.
5. Purpose. Section 1.1 (Purpose) shall be amended to read as follows:
The purpose of this Lease is to provide for the lease by Lessor to Lessee of the former Newport Beach City Hall premises located at 3300 Newport Boulevard in the City of Newport Beach, County of Orange, State of California (as more specifically defined herein, the "Premises") and 475 32" d Street in Newport Beach, County of Orange, State of California (as more specifically defined herein, the "Site") for the construction and operation by Lessee on the Premises and the Site of a boutique hotel with one hundred thirty (130) guest rooms and related facilities (the "Hotel"), along with the addition of five (5) cottages, fourteen (14) public parking spaces, public sidewalks, and public landscaping areas ("Site Improvements"). The lease of the Premises and the Site along with the development and operation of the Hotel and Site Improvements thereon pursuant to this Lease as amended, and the fulfillment generally of this Lease as amended, are in the vital and best interests of the City of Newport Beach and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements.
6. Definitions. Certain definitions under Article 2 (DEFINITIONS) of the Lease shall be amended as follows:
"Additional Development Entitlements for Site Improvements" shall mean all of the land use entitlements required for the Site Improvements pursuant to Planning Application No.
PA2020-068 approved by the Newport Beach City Council on October 25, 2022 and November 15, 2022, including without limitation all of the following (each, individually, a Development Entitlement for Site Improvements and collectively "Additional Development Entitlements for Site Improvements"): (i) a General Plan Amendment to amend Anomaly No. 85 to increase the development limit to 118,573 gross square feet; (ii) a Coastal Land Use Plan Amendment (LC2020-006) to increase the development limit to 118,573 gross square feet within both the Newport Beach Coastal Land Use Plan and 2 16-123 3
Title 21 (Local Coastal Program Implementation Plan of the Newport Beach Municipal Code; (iii) a Zoning Code Amendment to increase the development limit to 118,573 gross square feet; (iv) a Site Development Review amending Site Development Reviews Nos.
SD2014-001 and SD2016-005 for the construction of the Site Improvements; (v) a Conditional Use Permit amending Use Permit Nos. 2014-004 and UP2016-015 for the operation of the Site Improvements; and (vi) Addendum No. 2 to the Lido House Hotel Final Environmental Impact report (SCH No. 2013111022) to address the reasonably foreseeable environmental impacts associated with the Site Improvements. "Agreement Date of Second Amendment" shall mean the date first written into the introductory paragraph to the Second Amendment to Lease Agreement. "Approved Title Condition" shall mean that, as of the Commencement Date of the Lease or the time period set forth in Section 313.3.6.1 of this Second Amendment, as applicable, Lessor's fee title to the Premises or the Site is free and clear of the following: (i) all monetary liens and encumbrances excepting only (A) the lien of any non -delinquent property taxes and assessments, including without limitation supplemental taxes, that accrue from and after the Commencement Date or Agreement Date of the Second Amendment, (B) the lien of any Mortgage placed on Lessee's leasehold interest in the Premises and/or the Site (but not Lessor's leased fee interest, which shall be senior in priority and not subordinated to this Lease) that satisfies the requirements set forth in Sections 3B.1.3, 313.2.3, and 313.2.4 of this Second Amendment and is approved by Lessor, as provided therein; and (C) such other monetary liens that are caused by or placed on Lessee's leasehold interest by the acts or omissions of Lessee; and (ii) all non -monetary excepting only (A) those encumbrances that are listed as exceptions to title in the Preliminary Report, (B) any easement, license, access, or similar right that is reserved by Lessor or dedicated, granted, or conveyed to Lessor or any other governmental agency or utility company consistent with the Development Entitlements for the Hotel, and (C) such other non -monetary liens that are caused by or placed on Lessee's leasehold interest by the acts or omissions of Lessee.
"Bungalows" shall mean the five (5) guest room cottages proposed as part of the Site Improvements at the Site.
"Governmental Requirement" shall mean all laws, rules, and regulations of all federal, state, and local government agencies with jurisdiction over the Premises, Site, Site Improvements and the Improvements at any time from the Lease Effective Date through the expiration or termination of the Lease Term, including without limitation all applicable federal and state labor standards and requirements.
"Gross Non -Room Revenues" as used herein means all Gross Revenues derived by any of the Lessee Parties from the operation of the Hotel and Bungalows, excluding Gross Room Revenues. Gross Non -Room Revenues include, without limitation, revenue received from the following operations on the Premises and Site during the Lease Term: rental of meeting rooms, revenue from banquet sales/events in the Hotel and/or Site, cover charges, service charges, and miscellaneous banquet revenues, revenues from food and beverage services, whether provided on or off the Premises and/or Site, revenues generated from mini -bar, 3 16-123 4
health club, spa, hair and beauty salon, parking, and telephone, cable or video television, and telecommunications services or operations charged separately or in addition to room rates, vending machine revenues, rentals for equipment not customarily provided guests of similar hotels, revenues generated from sales from gift, sundries, and other shops, all rentals or other payments from sublessees, licensees, or concessionaires who are not Affiliates of Lessee, the portion of any Net Awards and Payments that is fairly allocated to any of the foregoing categories of Gross Non -Room Revenues, and the portion of Net Insurance Proceeds from the proceeds of business interruption or rental loss insurance that is fairly allocated to any of the foregoing categories of Gross Non -Room Revenues. In the event that Lessee provides food and beverage service to persons or groups using a meeting room or rooms in the Hotel and/or Site, Lessee shall fairly allocate the portion of the total charges/revenues between Gross Room Revenues and Gross Non -Room Revenues in accordance with industry custom and practice for hotels that are not subject to ground leases with differing percentage rental rates applicable to use of the meeting room(s) (part of Gross Room Revenues hereunder) and sale/consumption of food and beverages (part of Gross Non -Room Revenues hereunder). In addition, in the event that a group occupying the Hotel, Bungalows and/or Site arranges a banquet or similar group cocktail party or meal(s), Lessee shall fairly allocate the portion of the total charges/revenues between Gross Room Revenues and Gross Non -Room Revenues in accordance with industry custom and practice for hotels that are not subject to ground leases with differing percentage rental rates applicable to use/occupancy of hotel rooms or Bungalows (part of Gross Room Revenues hereunder) and sale/consumption of food and beverages (part of Gross Non -Room Revenues hereunder).
"Gross Room Revenues" as used herein means all Gross Revenues derived by any of the Lessee Parties from the operation of the Hotel for the rental of Hotel and/or Bungalows' guest rooms. Gross Room Revenues include, without limitation: (i) all guest room and Bungalows' rental payments, room and Bungalows' deposits forfeited, • and room and Bungalows' cancellation fees; (ii) proceeds of business interruption and similar insurance payable as a result of loss of room and Bungalows' revenues; (iii) so-called "resort fees" (by whatever name called) and any fees for use of any facilities which are customarily included by comparable hotels in the guest room rental rate, excluding, however, food, beverage, mini -bar, health club, parking, telephone, and rentals for equipment not customarily provided guests of similar hotels; (iv) the portion of any Net Awards and Payments that is fairly allocated to any of the foregoing categories of Gross Room Revenues; and (v) the portion of Net Insurance Proceeds from the proceeds of business interruption or rental loss insurance that is fairly allocated to any of the foregoing categories of Gross Non -Room Revenues. In the event that Lessee provides food and beverage service to persons or groups using a meeting room or rooms in the Hotel and/or Site, Lessee shall fairly allocate the portion of the total charges/revenues between Gross Room Revenues and Gross Non -Room Revenues in accordance with industry custom and practice for hotels that are not subject to ground leases with differing percentage rental rates applicable to use of the meeting room(s) (part of Gross Room Revenues hereunder) and sale/consumption of food and beverages (part of Gross Non -Room Revenues hereunder). In addition, in the event that a group occupying the Hotel and/or Bungalows arranges a banquet or similar group cocktail party or meal(s), Lessee shall fairly allocate 4 16-123 5
the portion of the total charges/revenues between Gross Room Revenues and Gross Non - Room Revenues in accordance with industry custom and practice for hotels that are not subject to ground leases with differing percentage rental rates applicable to use/occupancy of hotel rooms (part of Gross Room Revenues hereunder) and sale/consumption of food and beverages (part of Gross Non -Room Revenues hereunder). "Gross Revenues" shall mean all gross receipts of every kind and nature, whether for cash, credit, or barter, from any business, use, or occupation, or any combination thereof, transacted, arranged, or performed, in whole or in part, on, from, or for services from the Premises and/or Site, whether operated by Lessee or by a sublessee, licensee, or concessionaire if such sublessee, licensee, or concessionaire is an Affiliate of Lessee, for Gross Room Revenues or Gross Non -Room Revenues. In the computation of Gross Revenues there shall be excluded the following amounts: (i) rebates, refunds, and discounts (exclusive of credit card discounts or commissions paid to a credit card system) to customers given in the ordinary course of obtaining such revenues; (ii) transient occupancy, excise, sales, and use taxes collected directly from patrons or guests or as a part of the sales price of any goods or services, such as gross receipts, admission, cabaret, or similar taxes, which are accounted for by Lessee to any governmental agency; (iii) income or interest derived from cash, securities, and other property acquired and held for investment by Lessee (including income or interest earned on any amounts held in operating or replacement reserves for the Hotel and Bungalows); (iv) proceeds of insurance other than business interruption or rental loss insurance; (v) up to five percent (5%) of Lessee's advertising, promotional, or charitable billings not actually charged or paid; (vi) security deposits paid by a sublessee, licensee, or concessionaire of Lessee as security for such third parry's obligations under its sublease, license, or concession agreement, except to the extent Lessee allocates or applies any portion of such security deposit to unpaid rent or other amounts owed by such third party, in which event the sum so allocated or applied shall be included in Gross Revenues as of the date of such allocation or application; (vii) bad or uncollectible debts; (viii) goods returned to suppliers or which are delivered for resale (as distinguished from delivery) to another retail location or to a warehouse or to any retailers without profit to Lessee, where such returns or deliveries are made solely for the convenient operation of the business of Lessee or a sublessee, licensee, or concessionaire operating from the Premises and/or Site and not for the purpose of consummating a sale made in, about, or from the Premises and/or Site; (ix) the value of gratis meals furnished to Lessee's employees as an incident of their employment; (x) gratuities paid to employees; and (xi) the value of meals provided in connection with charitable events when no Lessee Parties receive payment therefor other than by reason of a charitable contribution. Sales upon credit shall be considered cash sales and shall be included in the gross receipts for the period during which the goods or services are delivered or performed. All Gross Revenues shall be computed without deduction or allowance for costs, charges, or expenses for the purchase, sale, transportation, or delivery of merchandise or services, or for labor and materials in connection with the rendering of services or the sale of goods. Subsequent collection of bad or uncollectible debts previously not reported as Gross Receipts shall be included in Gross Receipts at the time they are collected. Interest, service fees, and late charges collected in conjunction with a transaction, sale, or activity of Lessee and any sublessee, licensee, or concessionaire of 5 16-123 6
Lessee shall be reported in the same percentage category (either "Gross Room Revenues" or "Gross Non -Room Revenues") as the transaction, sale, or activity is reported. "Ground Rent" shall mean rent paid by Lessee to Lessor for the Premises and Site. Ground Rent consists of the greater of Base Rent or Percentage Rent for the applicable period, plus all other payments, fees, and charges that Lessee is required to make to or on behalf of Lessor, as provided herein.
"Hotel" shall mean the hotel and related facilities constructed and operated by Lessee on the Premises pursuant to this Lease.
"Improvements" shall mean any and all improvements to the Premises or Site, whether previously existing or constructed on the Premises or Site by Lessee pursuant to this Lease, and including any and all amendments, modifications, additions, substitutions, and replacements thereof.
"Lease" shall mean this Ground Lease, including the First and Second Amendment, as the same may be amended from time to time in accordance with the terms and conditions set forth herein.
"Outside Commencement Date of the Second Amendment" shall mean a period of time no greater than three (3) years following Agreement Date of the Second Amendment, subject to rolling six (6) month extensions reasonably approved in writing (at least thirty (30) calendar days before expiration) by the City Manager based upon Lessee pursuing reasonable efforts to obtain the Additional Development Entitlements for the Site Improvements.
"Required Hotel Standard" shall mean, as of the Agreement Date, a standard of hotel operation that meets all criteria (including without limitation operational, amenities, services, improvements, furniture, fixtures and equipment, and appearance) for a minimum "four diamond" hotel rating under the AAA Diamond Rating Guidelines hotel rating system of the American Automobile Association (or its successor) ("AAA").
Notwithstanding the foregoing, it is understood and agreed that the AAA Rating Guidelines may not remain in effect for the entire Term of this Lease, that the AAA Diamond Rating Guidelines in particular and hotel standards in general change from time to time, and that market conditions may require deviations from the hotel standards specified herein and, accordingly, that the afore -described Required Hotel Standard is subject to modification as set forth in Section 7.1(i) of this Lease. The Required Hotel Standard shall apply to the operation of the Bungalows. "Public Parking Area" shall mean the area depicted in Exhibit "A-3." "Public Parking" shall mean the fourteen (14) parking spaces made available to the public excluding Lessee's guests, invitees, employees, contractors and subcontractors who shall solely utilize Lessee's parking.
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"Site" shall mean that certain real property located at 475 32nd Street in the City of Newport Beach, County of Orange, State of California as legally described in Exhibit A-
1. "Site Improvements" separate and distinct from the definition of Improvements, "Site Improvements" shall mean the addition of five (5) guest room cottages or Bungalows, fourteen (14) public parking spaces, public sidewalks, and public landscaping areas. "Taking" shall mean any acquisition of or damage to all or any portion of the Premises or Site, or any interest therein or right accruing thereto, pursuant to or in anticipation of the exercise of the power of condemnation or eminent domain, or by reason of the temporary requisition of the use or occupancy of the Premises or Site, or any part thereof, by any governmental or quasi- governmental authority, civil or military, or any other agency empowered by law to take property in the State of California under the power of eminent domain.
7. Article 3B. Article 3B (Tasks To Be Performed Prior To Commencement Date of the Second Amendment) shall be added to the Lease to read as follows:
ARTICLE 3B
TASKS TO BE PERFORMED PRIOR TO COMMENCEMENT DATE OF THE
SECOND AMENDMENT
3B.1. Lessee Tasks.
3B.1.1 Additional Development Entitlements for the Site Improvements.
Within the time set forth in the Schedule of Performance for Second Amendment which is attached hereto as "Exhibit B" and incorporated herein by reference, Lessee shall submit complete application(s) to City for issuance of the Additional Development Entitlements for the Site Improvements as that phase is defined in Article 2 of this Lease and thereafter Lessee shall exercise commercially reasonable diligence in an effort to obtain final administrative City approval of same.
Within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall submit a complete application to the California Coastal Commission for issuance of Coastal Land Use Plan Amendment (LC2020-006) and other related Coastal Commission approvals and thereafter Lessee shall exercise commercially reasonable diligence in an effort to obtain final administrative Coastal Commission approval of same. 3B.1.2 Final Building Construction Plans for the Site Improvements and Satisfaction of All Prerequisites to Issuance of Site Building Permit(s). Within the time(s) set forth in the Schedule of Performance for Second Amendment, Lessee shall submit complete application(s), plans, and specifications to Lessor for issuance of all of the Final Building Plans for the Site Improvements and thereafter Lessee shall (i) exercise commercially reasonable diligence in an effort to obtain final Lessor approval of same (with the understanding that Lessor will not issue permits prior to the Commencement Date of the Second Amendment meaning 7 16-123 8
the complete satisfaction or waiver of all conditions set forth in Section 313.3), (ii) pay or deposit with Lessor all applicable fees and charges owing to Lessor prior to issuance of permits, (iii) deliver to Lessor any security instrument that is required by Lessor for construction of the Site Improvements pursuant to applicable Governmental Requirements, and (iv) satisfy any other applicable Governmental Requirements that may be a condition to Lessee's right to obtain required permits and commence construction of the Site Improvements (other than the occurrence of the Commencement Date of the Second Amendment). 3B.1.3 Evidence of Financial Capability for the Site Improvements; Construction Loan Documents. Within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall submit to the City Manager or his or her designee evidence that Lessee has the financial capability necessary to develop the Site Improvements (herein, "Evidence of Financial Capability for the Site Improvements"). Such Evidence of Financial Capability for the Site Improvements shall include without limitation each of the following: (i) a detailed budget showing Lessee's estimated Project Costs (the "Project Budget for the Site Improvements"); (ii) a copy of the term sheet obtained by Lessee from an Institutional Lender (or such other Mortgagee as may be approved by Lessor in its commercially reasonable discretion) to cover the costs set forth in the Project Budget for the Site Improvements, with such term sheet certified by Lessee to be a true and correct copy thereof, and such term sheet in form and content reasonably acceptable to Lessor, with only those conditions which are standard or typical for the lender involved for similar projects; (iii) if the total costs set forth in the Project Budget for the Site Improvements exceed the amount of funds of the term sheet obtained by Lessee from an Institutional Lender (or such other Mortgagee as may be approved by Lessor in its commercially reasonable discretion) that will be available to Lessee pursuant to clause (ii), a financial statement and/or other documentation reasonably satisfactory to Lessor sufficient to cover such difference; (iv) draft construction loan documents evidencing that the Mortgage securing the Institutional Lender's or other Lessor -approved Mortgagee's loan (A) will cover no interest in any real property other than Lessee's leasehold interest in the Premises and/or the Site, and (B) will be fully subordinate to Lessor's fee title in and to the Site and will state on its face that it does not in any way encumber Lessor's fee interest in the Site or Lessor's rights set forth in this Lease (except as expressly stated herein); (v) a copy of the construction contract or contracts between Lessee and its general contractor(s) for the Site Improvements, certified by Lessee to be a true and correct copy thereof, covering all of the excavation, grading, demolition, and construction work comprising the Site Improvements, including without limitation all related utility and off- site work (the "Project Construction Contract for the Site Improvements"); and (vi) a corporate surety bond or bonds or other security instrument, approved as to form, content, and company by the City Engineer and City Attorney with Lessee's contractor or contractors as principal(s), in a penal sum not less than one hundred percent (100%) of the estimated cost of constructing improvements in the public rights -of -way in connection with the construction of the Site Improvements guaranteeing completion of construction and the payment of wages for services engaged and bills contracted for materials, supplies, and equipment used in the performance of the work, and protecting Lessee and Lessor from any liability, losses, or damages arising therefrom (the "Project Security Instruments for the Site Improvements"), provided, however, that the City Manager or his or her designee shall have the discretion on behalf of Lessor to accept alternate security in his or her sole and absolute discretion.
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If the City Manager or his or her designee disapproves Lessee's Evidence of Financial Capability for the Site Improvements, within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall resubmit its Evidence of Financial Capability for the Site Improvements to provide the information or assurances required to satisfy Lessor's requirements.
As soon as possible after Lessor approves Lessee's Evidence of Financial Capability for the Site Improvements and in no event later than five (5) business days prior to the Commencement Date of the Second Amendment, Lessee shall deliver to Lessor complete final executed copies of all of the documents that memorialize Lessee's construction loan for the Site Improvements with the approved Mortgagee, including without limitation the construction loan agreement, deed of trust, and UCC-1 (collectively, the "Construction Loan Documents for the Site Improvements"). The Construction Loan Documents for the Site Improvements shall be consistent with the foregoing Evidence of Financial Capability for the Site Improvements and other applicable provisions of this Lease. 3B.1.4 Hotel Management Company and Amendment to Hotel Mana eg ment Agreement. Within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall submit to the City Manager or his or her designee evidence that Lessee has entered into an amendment to the existing Hotel Management Agreement as provided in Section 3.1.4 for the management and operation of the Bungalows.
If Lessor disapproves Lessee's proposed amendment to the Hotel Management Agreement, within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall resubmit a new or revised amendment to the Hotel Management Agreement to address and satisfy Lessor's requirements. Notwithstanding the foregoing, if the proposed amendment to the Hotel Management Agreement sets forth the addition of the Bungalows to the number of Guestrooms (as defined in the Hotel Management Agreement) and does not modify any other terms of the Hotel Management Agreement, then the proposed amendment shall be deemed approved.
As soon as possible after Lessor approves the amendment to the Hotel Management Agreement (or same is deemed approved) and in no event later than five (5) business days prior to the Commencement Date of the Second Amendment, Lessee shall deliver to Lessor complete final executed copies of the amendment to the Hotel Management Agreement consistent with Lessor's approval; provided, that Lessee shall have the right to redact from the amendment to the Hotel Management Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Management Company as business trade information that is not a matter of public record.
313.1.5 Hotel Franchisor and Hotel Franchise Agreement. Within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall submit to the City Manager or his or her designee evidence that Lessee has entered into an amendment to the existing Hotel Franchise Agreement as provided in Section 3.1.5 for the management and operation of the Bungalows.
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If Lessor disapproves of Lessee's proposed amendment to the Hotel Franchise Agreement, within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall resubmit a new or revised amendment to the Hotel Franchise Agreement to address and satisfy Lessor's requirements.
As soon as possible after Lessor approves the amendment to the Hotel Franchise Agreement and in no event later than five (5) business days prior to the Commencement Date of the Second Amendment meaning the complete satisfaction or waiver of all conditions set forth in Section 313.3, Lessee shall deliver to Lessor complete final executed copies of the amendment to the Hotel Franchise Agreement consistent with Lessor's approval; provided, that Lessee shall have the right to redact from the amendment to the Hotel Franchise Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Franchisor as business trade information that is not a matter of public record. 3B.1.6 Insurance. Within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall submit evidence reasonably satisfactory to Lessor's Risk Manager that Lessee has obtained all insurance required pursuant to Sections 13.3 and 13.4 of this Lease.
3B.1.7 Notice. Within the time set forth in the Schedule of Performance for Second Amendment, Lessee shall provide forty-five days advanced written notice of its intent to take possession of the Site to begin construction of the Site Improvements. 3B.2 Lessor Tasks.
313.2.1 Additional Development Entitlements for Site Improvements. Within the time set forth in the Schedule of Performance for Second Amendment, in its capacity as Lessor, Lessor shall review Lessee's application(s) for those Additional Development Entitlements for Site Improvements that are required to be submitted to Lessor, as that phrase is defined in Article 2 of this Lease, and any proposed amendments or changes thereto. Lessee understands that by Lessor's execution of this Second Amendment, the City of Newport Beach is not committing itself or agreeing to undertake any activity requiring the subsequent exercise of discretion by the City or any department thereof, including, but not limited to, the approval of any CEQA documents, the approval of any Site Improvements or land use regulation governing the Site, or any other act or approval.
3B.2.2 Review and Approval of Final Building Construction Plans. Within the time set forth in the Schedule of Performance for Second Amendment, in its capacity as Lessor, Lessor shall review Lessee's application(s) for approval of the Final Building Plans for the Site Improvements and all security instruments and other documents submitted by Lessee in conjunction therewith, including any proposed amendments or changes thereto. 313.2.3 Review and Approval of Lessee's Evidence of Financial Capability.
Within -the time set forth in the Schedule of Performance for Second Amendment, the City Manager or his or her designee shall complete his or her review of and approve or disapprove 10 16-123 11
Lessee's Evidence of Financial Capability. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay its approval of Lessee's Evidence of Financial Capability. If the City Manager or his or her designee disapproves Lessee's Evidence of Financial Capability, he or she shall do so by written notice to Lessee stating the reasons for such disapproval.
313.2.4 Review and Approval of Construction Loan Documents. Within the time set forth in the Schedule of Performance for Second Amendment, the City Manager or his or her designee shall complete his or her review of and approve or disapprove Lessee's Construction Loan Documents. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay Lessor's approval of Lessee's Construction Loan Documents. If the City Manager or his or her designee disapproves Lessee's Construction Loan Documents, he or she shall do so by written notice to Lessee stating the reasons for such disapproval. 313.2.5 Review and Approval of Hotel Management Company and Hotel Management Agreement. Within the time set forth in the Schedule of Performance for Second Amendment, the City Manager or his or her designee shall reasonably approve or disapprove the Hotel Management Company and the terms of the Hotel Management Agreement, in accordance with the criteria and procedures set forth in Section 7.2 of the Lease and Section 3B.1.4 of this Second Amendment.
313.2.6 Review and Approval of Hotel Franchisor and Hotel Franchise Agreement. Within the time set forth in the Schedule of Performance for Second Amendment, the City Manager or his or her designee shall approve or disapprove the Hotel Franchisor and any amendment to the terms of the existing Hotel Franchise Agreement, in accordance with the criteria and procedures set forth in Sections 7.3 of the Lease. 313.2.7 Government Code Section 65864 et seq. Not Applicable.
Notwithstanding the foregoing, Lessee understands and agrees that this Lease does not constitute a statutory development agreement (California Government Code Section 65864 et seq). If Lessee disputes Lessor's exercise of its police power authority with respect to any of the Additional Development Entitlement for Site Improvements, including any proposed amendments or changes thereto, nothing in this Lease, or any amendment thereof, is intended or shall be interpreted to grant to Lessee a right to sue Lessor or any official, officer, employee, or agent of Lessor for breach of contract or any other contractual right or remedy and Lessee's rights and remedies shall be limited to only those rights and remedies which Lessee would have as a private property owner in the absence of this Lease. 313.3 Satisfaction (or Waiver) of Conditions to Commencement Date of the Second Amendment.
313.3.1 Conditions to Commencement of Second Amendment. Lessor's Conditions to Commencement of Second Amendment. Lessor's obligation to execute and deliver the Second Amendment to the Memorandum of Lease and the Commencement Date of the Second Amendment shall all be conditional and contingent upon the satisfaction (or written waiver by Lessor) of the tasks set forth in Section 3B.1 above ("Lessor's Conditions 11 16-123 12
to Commencement of Second Amendment").
3B.3.2 Lessee's Conditions to Commencement of Second Amendment to the Lease. Lessee's obligation to execute and deliver an amendment Memorandum of Lease and the Commencement Date of the Second Amendment shall all be conditional and contingent upon the satisfaction (or written waiver by Lessee) of the tasks set forth in Section 313.2 and the satisfaction of Lessee to the Additional Development Entitlements for Site Improvements ("Lessee's Conditions to Commencement of Second Amendment"). 313.3.3 Challenges. All statute of limitations has expired for any and all claims, actions, challenges, notices of violation, or enforcement actions that the Second Amendment violates federal or state law including, but not limited to, California Government Code Section 54220 et seq. to Lessor's sole satisfaction, and further, that Lessor is released or discharged of any further liability or legal claims that the Second Amendment violates federal or state law. 313.3.4 No Default. Neither Lessor nor Lessee is in Default of any of its obligations set forth in the Lease as of the Commencement Date of the Second Amendment and no event shall have occurred that, with the passage of time or the giving of notice, or both, would constitute a Default by Lessee hereunder.
3B.3.5 Automatic Termination of Second Amendment. In the event one or more of the Conditions to Commencement of the Second Amendment are not satisfied by either Party by the Outside Commencement Date, this Second Amendment shall terminate automatically without further action by either parry. Termination of this Second Amendment, as provided herein, shall be without prejudice to whatever legal rights Lessor or Lessee may have against each other arising from this Second Amendment.
3B.3.6 Miscellaneous Acknowledgements, Agreements, and Covenants. 3B.3.6.1 Lessee's Investigation of Title: Lessor Covenant to Not Further Encumber Title. Lessee shall have forty-five (45) days following the Agreement Date of the Second Amendment to review the Preliminary Report, to prepare an ALTA survey with respect to the Site, and to conduct any investigations and inspections coordinated in advance with Lessor, Lessee may have deemed appropriate with respect thereto and the condition of title to the Site. Lessor makes no representation or warranty to Lessee regarding the accuracy or completeness of the Preliminary Report, or whether there are any unrecorded non -monetary liens or encumbrances that are not identified or reflected in the Preliminary Report. Lessor covenants, however, that from the Agreement Date of the Second Amendment through the Commencement Date of the Second Amendment, Lessor shall not take any affirmative action that will cause title to the Site to become inconsistent with the Approved Title Condition as of the Agreement Date of the Second Amendment. 313.3.6.2 Physical/Environmental Condition of the Site:
Lessor Covenant to Not Alter Existing Physical/Environmental Condition of the Site. Lessee shall have forty-five (45) days following the Agreement Date of the Second Amendment to review the physical and environmental condition of the Site and to conduct any investigations and inspections Lessee deemed appropriate with respect thereto. Any studies, surveys, investigations and tests shall be done, if at all, at Lessee's sole cost and expense. Lessee shall (a) notify Lessor prior to each entry of the date and purpose of intended entry and provide to Lessor the names and affiliations of the persons entering the Site; (b) conduct all studies in a diligent, 12 16-123 13
expeditious and safe manner and not allow any dangerous or hazardous conditions to occur on the Site as a result of such studies during or after such investigation, as a result of that investigation; (c) comply with all applicable laws and governmental regulations in connection with entering and performing such investigations on the Site; (d) keep the Site free and clear of all mechanics' and materialmen's liens, lis pendens and other liens arising out of the entry and work performed under this paragraph; (e) maintain or assure maintenance of workers' compensation insurance (or state approved self-insurance) covering all persons entering the Site in the amounts required by the State of California; (f) provide to Lessor prior to initial entry a certificate of insurance evidencing that Lessee has procured and paid premiums for an all-risk public liability insurance policy written on a per occurrence and not claims made basis in a combined single limit of not less than TWO MILLION DOLLARS and 00/100 ($2,000,000.00) which insurance names Lessor as additional insured entitled to not less than thirty (30) days cancellation notice and is primary and non- contributing with insurance carried by Lessor; and (g) return the Site to its original condition following Lessee's entry. Lessee agrees to indemnify, defend, protect and hold Lessor free and harmless from any and all loss, liability, claims, damages, causes of action and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, "Claims") arising from the exercise of said license, or from Lessee's failure to comply with the conditions to Lessee's entry onto the Site provided herein; provided, that such indemnity shall not extend or apply to discovery of pre-existing conditions or matters relating to the Site, or any impact on the Site or its valuation resulting therefrom or to any Claims to the extent arising from or caused by the negligence or wrongful conduct of the Lessor or any of its agents or representatives. Such undertaking of indemnity shall survive the termination of the Second Amendment for any reason.
The limited license herein granted shall be co -extensive with the term of the Second Amendment and any extension hereof.
313.3.6.3 Condition of the Site. All portions of the Site, and any improvements thereon, which are leased by Lessor to Lessee shall be leased in an "as is" physical and environmental condition, with no warranty, express or implied, by Lessor as to the condition of the soil, its geology, the presence of known or unknown earthquake faults, the presence of any Hazardous Substances, the water table and/or groundwater conditions, or any other similar matters and it shall be the sole responsibility of Lessee, at its sole cost and expense, to investigate and determine the physical/environmental conditions of the Site, its geology, susceptibility to seismic events, the presence of any Hazardous Substances, the water table and/or groundwater conditions, and the physical and environmental suitability of the Site for development, operation, and maintenance of the Site Improvements and, if the physical or environmental conditions of the Site, or any part thereof, are not in all respects entirely suitable for the use or uses to which the Site will be put, then it will be the sole responsibility and obligation of Lessee, after the Commencement Date of the Second Amendment, to take such actions as may be necessary to place the Site in all respects in a condition entirely suitable for development, operation, and maintenance of the Site Improvements, which may include demolition and clearance of above -ground and below - ground structures or other improvements, removal of Hazardous Substances, compaction or re -compaction of soils, de -watering of soils, replacement of unsuitable soils, extraordinary foundation systems, and the like. Not by way of limitation of the foregoing, Lessee acknowledges that the existing improvements on the Site may deteriorate prior to the Commencement Date of the Second Amendment and Lessor shall have no liability or responsibility therefor.
13 16-123 14
313.3.6.4 Cooperation; Execution and Recordation of
Amendment to Memorandum of Lease; Commencement Date of the Second Amendment.
Each Party shall perform all of its obligations that are required to be performed in order to satisfy the Lessor's Conditions to Commencement of Second Amendment and the Lessee's Conditions to Commencement of Second Amendment, as applicable, and each Party shall cooperate in good faith with the other Party in an effort to cause the Lessor's Conditions to Commencement to Second Amendment and Lessee's Conditions to Commencement of Second Amendment to be satisfied as soon as possible and within the times set forth in the Schedule of Performance for Second Amendment; provided, however, that (i) neither Party shall have any obligation to perform or cooperate in such regard if such Party is not in Default hereunder and, after and despite its performance of its obligations set forth in the Lease that it is required to perform (and subject to any excuses for its failure to perform) any of the Conditions to Commencement of Second Amendment for its benefit are not satisfied prior to the Outside Commencement Date of the Second Amendment (as the same may have been extended as provided herein) and (ii) nothing in this Section 313.6.4 is intended or shall be interpreted as a covenant by either Party to (A) compromise any of its rights or remedies set forth herein, including without limitation the right to demand strict and timely performance from the other Party, or (B) agree to any modifications, waivers, or extensions hereunder.
Upon the satisfaction (or written waiver by the benefited Party) of all of the Conditions to Commencement of Second Amendment to the Lease, and within the time set forth in the Schedule of Performance for Second Amendment, the Parties shall each (i) execute in recordable form and deliver an Amendment to the Memorandum of Lease which is attached hereto as Exhibit "C" and incorporated herein by reference, and (ii) cooperate in causing the Amendment to the Memorandum of Lease to be recorded in the Official Records of the Orange County Recorder's office. The date the Amendment to the Memorandum of Lease is recorded shall be the Commencement Date of the Second Amendment to the Lease.
8. Article 4. Sections 4.2, 4.3 and 4.6 of Article 4 (Lease of Premises and Site; Possession; Condition of Leasehold Title; Physical and Environmental Condition of Premises and Site; Lease Term) shall be amended to read as follows with all other sections in Article 4 to remain unchanged:
ARTICLE 4
LEASE OF PREMISES AND SITE; POSSESSION; CONDITION OF LEASEHOLD TITLE; PHYSICAL AND ENVIRONMENTAL CONDITION OF PREMISES AND SITE; LEASE TERM
4.2 Possession. Lessor shall deliver possession of the Premises to Lessee on the Commencement Date. With respect to the Site, Lessor shall deliver possession of the Site to Lessee on the Commencement Date of the Second Amendment. Subject to the limitations on the condition of title as referred to in Section 4.3 of this Lease, the Parties hereto mutually covenant and agree that from and after the Commencement Date and during the remainder of the Lease Term Lessee, by keeping and performing the covenants contained in this Lease, shall at all times peaceably and quietly have, hold, and enjoy the Premises and Site. 14 16-123 15
4.3 Condition of Leasehold Title: Reserved Rights of Lessor. Lessor shall convey leasehold title to Lessee subject to the following limitations, exceptions, and reservations:
(i) Lessee shall accept leasehold title subject to the limitations and exceptions that are consistent with the Approved Title Condition. (ii) Lessor reserves all oil, oils rights, gas, minerals, mineral rights, natural gas rights, and other hydrocarbon substances in and under the Premises and the Site and the right to grant and transfer the same, together with all necessary and convenient rights to explore for, develop, produce, and extract, and take the same, subject to the express limitation that any and all operations for the exploration, development, production, extraction, and taking of any such substance shall be carried on at levels below the depth of five hundred feet (500') from the surface of the land by means of wells, derricks, and other equipment from surface locations on adjoining or neighboring land so long as such activities do not interfere with or impair the operation, business, or aesthetics of the Hotel and the Bungalows, and provided that the exercise of any such rights by Lessor shall not result in any damage or injury to the improvements constructed on the Premises or the Site by Lessee, including without limitation any subsidence of all or any part of such improvements; and subject further to all restrictions and regulations concerning the drilling for, and production of, oil, gas, minerals, petroleum, and other hydrocarbon substances specified in the Newport Beach City Charter and the Newport Beach Municipal Code.
(iii) Lessor reserves and shall have the right to enter the Premises and the Site during periods of construction, as set forth in Section 6.4 of this Lease. (iv) Lessor reserves and shall have the right at all reasonable times during the entire Lease Term to enter the Premises and the Site for the purpose of viewing and ascertaining the condition of the same, to protect its interests in the Premises and the Site, and to inspect the operations conducted thereon. Except in the case of emergency, any such entry into areas not generally open to the public shall be made only after reasonable notice to Lessee.
Nothing in this Lease is intended or shall be interpreted to limit any right that Lessor, as a municipal corporation, has to enter onto private property when acting in its governmental capacity in lieu of its proprietary capacity of the owner and landlord of real property. (v) Lessor further reserves and shall have the right to enter the Premises and the Site in order to cure or correct a Default by Lessee as provided in Sections 8.6 and 15.6 of this Lease.
(vi) Nothing in this Lease is intended or shall be interpreted as a waiver by Lessor of its power of eminent domain.
4.6 Liens and Encumbrances Created by Lessee. Lessee shall not, directly or indirectly, create or permit to be created or to remain, and Lessee shall promptly discharge, at its expense, any mortgage, lien, encumbrance, or charge on or pledge of the Premises or Site or the Improvements or Site Improvements, or fixtures and furnishings, or any part thereof, or Lessee's 15 16-123 16
interest therein, or the Ground Rent or other sums payable by Lessee under this Lease, other than (i) such Mortgages as are permitted pursuant to Article 12, and (ii) as necessary in connection with the financing of furniture, fixtures and equipment for the Improvements or Site Improvements. Lessee shall notify Lessor promptly of any lien or encumbrance which has been created on or attached to the Premises, or the Site, Site Improvements and Improvements, or to Lessee's leasehold estate therein, whether by act of Lessee or otherwise. The existence of any mechanic's, laborer's, materialmen's, supplier's, or vendor's lien, or any right in respect thereof, shall not constitute a violation of this Lease if payment is not yet due upon the contract or for the goods or services in respect of which any such lien has arisen, or if such lien is being discharged by the posting of bonds or other lien -release security as is provided for such discharge by law.
9. Article 5. Section 5.1.1 shall be added and Sections 5.2, 5.3 and 5.8 of Article 5 (Rent) shall be amended to read as follows with all other sections in Article 5 (Rent) to remain unchanged:
ARTICLE 5
RENT
5.1.1 Additional Base Rent for Site. Upon the Agreement Date of the Second Amendment, Lessor shall pay to Lessor an additional Base Rent in the amount of fifty thousand dollars ($50,000.00) annually, subject to all terms, conditions, adjustments and payment terms set forth under Article 5 of the Lease. Additional Base Rent for the Site may be prorated the first year, based upon the actual number of calendar days remaining in the year commencing on the Agreement Date of the Second Amendment. Notwithstanding the foregoing, in the event the Conditions for Commencement of the Second Amendment set forth in Section 3B.3 are not satisfied, this Second Amendment shall terminate as provided in Section 3B.3.5.
5.2 Percentage Rent. Lessee shall pay rent to Lessor based upon the amount of Gross Room Revenues and Gross Non -Room Revenues generated by the operation of the Hotel and Site from time to time in the amounts set forth in this Section 5.2 (the "Percentage Rent").
5.3 Adjustments to Base Rent and Base Rent CPI Adjustment During Option Term. If Lessee exercises its option to extend the Initial Term of this Lease, as provided in Section 4.5, the Base Rent (but not the Percentage Rent) during the Option Term shall be adjusted to an amount equal to the "Fair Rental Value of the Premises and Site" as of the first day of the Option Period, as the same is determined and subject to the terms and conditions set forth in this Section 5.3; provided, however, that (i) in no event shall either the Base Rent in effect immediately prior to the first day of the Option Period be reduced, (ii) in the event the determination of the Fair Rental Value of the Premises and Site would result in the Base Rent then in effect being reduced then no adjustment shall be made to the Base Rent figure/amount then in effect and the Base Rent shall continue to be adjusted at 5-year intervals during the Option Term in the manner and subject to the limitations set forth in Section 4.1.4 (i.e., at the commencement of the 58th, 63nd, 681h, 73rd, 78th, and 83rd Operating Year), and (iii) the Percentage Rent shall not be increased or decreased during the Option Period.
16 16-123 17
The Fair Rental Value of the Premises and Site shall be determined based upon the following being assumed to be hue as of the first day of the Option Term (or as of the date prior to the first day of the Option Term when the elements comprising the Fair Rental Value of the Premises and Site are agreed upon or determined as provided herein): (i) that the Improvements exist in the physical condition required by this Lease, the Hotel is open for business, the Premises and Site are in all respects in the physical and environmental condition required pursuant to this Lease, and the Premises and Site are available for lease on the open market to the highest bidder; (ii) that the hypothetical new lessee would be entitled to assume Lessee's obligations and succeed to its rights under the Hotel Management Agreement and Hotel Franchise Agreement then in effect; (iii) that the terms of the Lease that would apply are the terms set forth in this Lease, including the Percentage Rent that is payable, with the exception of the Base Rent amount which is to be adjusted and the understanding that the assumed remaining Lease Term is thirty (30) years; and (iv) that the highest and best use of the Premises and Site is the actual use required and permitted pursuant to this Lease. The Fair Rental Value of the Premises and Site shall be expressed in terms of a new proposed Annual Base Rent, and a new proposed method for adjusting the Annual Base Rent based on changes in the Consumer Price Index (not more often than every five (5) years, as provided herein), both of which are to apply to the Option Term.
For a period of ninety (90) days after Lessee delivers written notice to Lessor of the exercise of Lessee's option to extend the Initial Term in accordance with Section 4.2(i) of this Lease, the Parties shall meet and endeavor to agree upon the Fair Rental Value of the Premises and Site consistent with the foregoing. If for any reason the Parties fail to agree upon the Fair Rental Value of the Premises and Site within said ninety (90) day period, then the Fair Rental Value of the Premises and Site shall be determined by arbitration conducted within the times, and in the manner, set forth below:
(i) For a period of thirty (30) additional days (i.e., until the date that is one hundred twenty (120) days after Lessee delivers written notice to Lessor of the exercise of Lessee's option to extend the Initial Term of this Lease), the Parties shall jointly attempt to agree on the appointment of a single arbitrator to determine the Fair Rental Value of the Premises and Site consistent with the foregoing. The single arbitrator jointly appointed by the Parties shall determine the Fair Rental Value of the Premises and Site within sixty (60) days after his/her appointment or as soon thereafter as possible and shall be instructed to notify the Parties in writing of his/her determination. The Parties shall each pay fifty percent (50%) of the single arbitrator's costs.
(ii) If the Parties fail to timely agree on the appointment of a single arbitrator to determine the Fair Rental Value of the Premises and Site, as set forth in subparagraph (i) above, each Party, within an additional fifteen (15) days (i.e., by the date that is one hundred thirty-five (135) days after Lessee delivers written notice to Lessor of the exercise of Lessee's option to extend the Initial Term of this Lease), shall separately designate its own arbitrator to determine the Fair Rental Value of the Premises and Site consistent with the foregoing within sixty (60) days after each such arbitrator's appointment 17 16-123 18
or as soon thereafter as possible and, upon both arbitrators' determination of the Fair Rental Value of the Premises and Site, the Parties shall concurrently exchange such determinations. If the difference between either of the two elements of the respective arbitrators' determinations (Base Rent and the new proposed method/formula for adjusting the Annual Base Rent based on changes in the Consumer Price Index) is an amount less than ten percent (10%) of the higher determination, the mean average of the two determinations shall be used in making the adjustment(s). If the difference between either of the two elements of the respective arbitrators' determinations is ten percent (10%) or more of the higher determination, the two arbitrators shall jointly select a third arbitrator who shall review the data, analysis, findings, and conclusions of the Parties' respective arbitrators and such third arbitrator shall determine which of the two arbitrators' determinations is/are the most reasonable under the criteria set forth above, which determination shall be used in making the adjustment(s) used to determine the Fair Rental Value of the Premises and Site during the Option Term. The third arbitrator shall not be permitted to make an independent determination of any of the still -disputed elements of the Fair Rental Value of the Premises and Site.
(iii) Each arbitrator selected to make a determination with respect to the Fair Rental Value of the Premises and Site (or either of the elements comprising the Fair Rental Value of the Premises and Site) shall be a licensed real estate appraiser in the State of California and a member of the Appraisal Institute or successor appraisal society or organization (or, in the event real estate appraisers are not licensed or the Appraisal Institute or successor appraisal society or organization does not exist at the time the Fair Rental Value of the Premises and Site are determined, each such arbitrator shall have equivalent qualifications). Each such arbitrator shall also have a minimum of ten (10) years professional experience in Southern California appraising commercial hotel properties.
Each arbitrator selected shall be impartial and unrelated, directly or indirectly, so far as employment of services is concerned, to either of the Parties. (iv) Each Party shall be responsible for payment of its selected arbitrator and, if a third arbitrator is selected to determine any matters, the Parties shall each pay fifty percent (50%) of said third arbitrator's costs.
(v) In the event either Party Defaults hereunder by failing to timely select an arbitrator pursuant to clause (ii) above, the Fair Rental Value of the Premises and Site shall be determined by the arbitrator selected by the other Party. In the event that the arbitrators selected by the Parties pursuant to clause (ii) do not finally determine the Fair Rental Value of the Premises and Site and they fail to timely appoint a third arbitrator to hear and determine the dispute, either Party not in Default shall have the right to apply to the Orange County Superior Court to appoint the third arbitrator.
(vi) In the event that for any reason the Fair Rental Value of the Premises and Site has not been finally determined as of the first day of the Option Term Lessee shall continue to pay Ground Rent in the amounts and at the times that were in effect immediately prior to the Option Term, a retroactive adjustment shall be made (effective as of the first date 18 16-123 19
of the Option Term) when the new Base Rent figure has been established and, within fifteen (15) days after such date Lessee shall make any additional payment of Ground Rent that may be owing to Lessor as a result of said determination.
(vii) BY INITIALING IN THE SPACE BELOW, EACH PARTY TO
THIS LEASE ACKNOWLEDGES THAT IT IS AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE DETERMINATION OF THE FAIR RENTAL VALUE OF
THE PREMISES AND SITE AND THE ELEMENTS THEREOF DETERMINED BY
NEUTRAL AND BINDING ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND IT IS GIVING UP ANY RIGHTS IT MIGHT OTHERWISE POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR DETERMINED IN A JURY TRIAL.
BY INITIALING IN THE SPACE BELOW, EACH PARTY ACKNOWLEDGES THAT
VOLUNTARILY AGREES TO THIS MEANS OF RESOLVING ANY SUCH DISPUTE
AND THAT IT IS GIVING UP ITS JUDICIAL RIGHTS TO DISCOVERY, JURY TRIAL, AND APPEAL.
Lessor's Initials Lessee's Initials
Subject to the provisions set forth above that the Base Rent, the Percentage Rent based on Gross Room Revenues, and the Percentage Rent based on Gross Non -Room Revenues shall not be reduced during the Option Term, the determination of the Fair Rental Value of the Premises and Site determined in accordance with this Section 5.3 shall be final, binding, and conclusive on both Parties during the Option Term. Upon the written request of either Party or any existing or prospective Mortgagee, the Parties shall cooperate in executing an addendum to this Lease memorializing any adjustments to the Ground Rent provisions set forth herein that will apply during the Option Term.
5.8 Lessee's Maintenance of Books and Records Relating to Calculation of Ground Rent: Lessor's Right to Inspect and Audit Records. Lessee shall keep full and accurate books and accounts, records, cash receipts, and other pertinent data showing its financial operations pertaining to this Lease, the Premises, the Site, the Hotel and the Site Improvements at a location in Orange County, California. Such books and records shall be organized in a manner that separately itemizes each of the separate components of Gross Room Revenues and Gross Non - Room Revenues identified in the definitions of those terms and in Section 5.2.4 above. All retail sales and charges shall be recorded by means of cash registers, point -of -sale computers, or other comparable devices which display to the Hotel and/or Bungalows guest or customer the amount of the transaction and automatically issue a sales receipt. Such devices shall be equipped with technology that customarily lock in sales totals and other transaction records, or with counters that cannot be reset and that record transaction numbers and sales details. Totals registered shall be read and recorded at least once per day. Back-up copies of all such data, records, and reports must be made at least weekly in a computer -readable medium and stored off -site. Lessee shall retain such books of account, records, cash receipts, and other pertinent data for a minimum period of five (5) years after the end of the Operating Year to which such items pertain. Lessor shall be entitled during such five (5) years to inspect, examine, and copy at Lessor's expense Lessee's books of account, records, cash receipts, and other pertinent data as necessary or appropriate for 19 16-123 20
the purpose of this Lease. Lessee shall cooperate fully with Lessor in making the inspection.
Except in the event of litigation or arbitration between the Parties arising out of a dispute and otherwise except as required by applicable law, including without limitation the California Public Records Act (Government Code Sections 6250 et seq.), Lessee's books and records shall remain confidential and not public.
10. Article 6B. Article B (Development of the Site Improvements and Related Improvements On and About the Site) shall be added to read as follows:
ARTICLE 6B
DEVELOPMENT OF THE SITE IMPROVEMENTS AND RELATED
IMPROVEMENTS ON AND ABOUT THE SITE
613.1 Commencement and Completion of Site Improvements. Within the times set forth in the Schedule of Performance for Second Amendment, Lessee shall commence and complete construction of the Site Improvements and other related Improvements on and about the Site in accordance with the Additional Development Entitlements for Site Improvements, the Final Building Plans for Site Improvements, and all applicable Governmental Requirements and Lessee shall cause the Site Improvements to be opened to the general public. Not by way of limitation of the foregoing, prior to commencing work in any public rights -of -way, Lessee shall obtain any required encroachment permit(s) and deliver any required security instrument(s) in accordance with Lessor's normal practices. Once construction is commenced, it shall be diligently pursued to completion and, subject to Events of Force Majeure, shall not be interrupted, halted, or abandoned for more than twenty (20) consecutive days. 613.2 No Construction Before Notice: Notice(s) of Non-ResponsibilitX. At no time during the Lease Term shall Lessee commence or allow to be commenced any excavation, grading, site preparation, utility relocation/installation, street or other public improvement work in the right(s)-of-way adjacent to the Site, or any construction work of any kind on the Site, nor shall Lessee deliver or allow to be delivered any equipment or materials to the Site for any of such purposes, until Lessee has first provided at least twenty (20) days prior written notice to Lessor of the intended commencement of such work or the delivery of such equipment or materials. At any and all times during the Lease Term, Lessor shall have the right to post and maintain on the Site and to record as required by law any notice or notices of non - responsibility provided for by the mechanics' lien laws of the State of California. 613.3 Mechanic's, Materialmen's, Contractor's and Subcontractor's Liens. Subject to Lessee's right to contest as hereinafter provided, at all times during the Lease Term, Lessee shall keep the Site, including all buildings and improvements now or hereafter located on the Site, free and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Site. Lessee shall notify Lessor in writing of any and all liens and claims of lien made or filed against the Site within thirty (30) calendar days after Lessee becomes aware of the filing thereof. Thereafter, Lessee shall promptly (i) pay and discharge, or cause the Site to be released from, any such lien or claim of lien, or (ii) contest such lien and furnish Lessor such bond as may be 20 16-123 21
required by law to free the Site from the effect of such lien and to secure Lessor against payment of such lien and against any and all loss or damage whatsoever in any way arising from Lessee's failure to pay or discharge such lien. In the event Lessee provides a bond in lieu of paying or discharging a lien as set forth herein, and Lessor is unable despite reasonably diligent effort to obtain an endorsement to any existing title policy in favor of Lessor insuring Lessor's interest in the Site free and clear of any such liens that have not been paid or discharged, Lessee shall, at Lessee's sole cost and expense, within thirty (30) days of Lessor's written request therefor, provide the Lessor with such endorsement.
Should Lessee fail to pay and discharge, or cause the Site to be released from, any such lien or claim of lien or to provide a bond as permitted hereunder within thirty (30) days after service on Lessee by Lessor of a written request to do so, Lessor may pay, adjust, compromise, and discharge any such lien or claim of lien on such terms and in such manner as Lessor may reasonably deem appropriate. In such event, Lessee shall, on or before the first day of the next calendar month following any such payment by Lessor, reimburse Lessor for the full amount so paid by Lessor, including any actual and reasonable attorneys' fees or other costs expended by Lessor, together with interest thereon at the annual rate of interest equal to three percent (3%) over the prime rate of the largest bank operating in the State of California as of the close of business on the date of payment by the Lessor, or the highest lawful rate, whichever is less, from the date of payment by Lessor to the date of Lessee's reimbursement of Lessor.
Promptly after substantial completion of any work of improvement during the Lease Term, Lessee shall record or cause to be recorded in the Official Records of Orange County a notice of completion. Lessee hereby appoints Lessor as Lessee's attorney -in -fact to record the notice of completion, which appointment shall only become effective on ten (10) days' notice upon Lessee's failure to record such a notice of completion after the work of improvement has been substantially completed; provided, that Lessor shall not be obligated to record such a notice of completion and the failure of Lessor to record said notice shall not excuse the failure of Lessee to discharge its obligation to record said notice of completion.
6BA Lessor's Rights of Access. Representatives of Lessor shall have the reasonable right of access to the Site without charges or fees, at normal construction hours during all periods of construction for the purposes of this Lease, including, but not limited to, the inspection of the work being performed in constructing, reconstructing, repairing, and replacing all or any portion of the Site, Site Improvements, and other related Improvements. Such representatives of Lessor shall be those who are so identified in writing by the City Manager or Public Works Director of Lessor or their authorized designee(s). Lessor shall provide reasonable prior notice to Lessee of any such entry, and shall use its best efforts to minimize interference with Lessee's use of the Site, Site Improvements, and Improvements as much as is reasonably feasible. Such entry shall be in compliance with all applicable safety rules and regulations provided by Lessee (or its general contractor) to Lessor's representative(s) at the time of entry. 21 16-123 22
613.5 Local, State and Federal Laws. Lessee shall carry out the construction and installation of the Site Improvements on and about the Site in conformity with all applicable Governmental Requirements. Lessee shall comply with California's prevailing wage laws, such that Lessee's construction and installation of the Site Improvements and its performance of other related development/construction activities pursuant to this Lease constitutes construction or installation of a "public work" for which prevailing wages must be paid or for which Lessee is required to comply with any other Governmental Requirements applicable to "public works."
6B.6 As -Built Drawings for the Site Improvements. Upon completion of any construction work on the Site, Lessee shall as soon as practicable furnish Lessor with a set of drawings and specifications for all completed construction which accurately reflects the nature and extent of all work done on or to the Site and marked to show such construction "as built."
613.7 Costs of Construction for Site Improvements. Lessee shall bear all costs and expenses associated with the planning, design, construction, maintenance, furnishing, equipping, and supplying of the Site Improvements and other Improvements on the Site, which costs and expenses include without limitation: (i) utility hook-up and connection fees and all distribution facilities, conduits, pipelines, and cables required in connection with construction of the Site Improvements; (ii) all design, engineering, financing, and construction costs; and (iii) all necessary permit fees, charges, assessments, taxes, and exactions.
11. Article 7. Article 7 (Use and Operation of Hotel; Changes in Hotel Management Company/Hotel Management Agreement and/or Hotel Franchisor/Hotel Franchise Agreement) shall be amended to read as follows:
ARTICLE 7
USE AND OPERATION OF HOTEL, CHANGES IN HOTEL MANAGEMENT
COMPANY/HOTEL MANAGEMENT AGREEMENT AND/OR HOTEL
FRANCHISOR/HOTEL FRANCHISE AGREEMENT
7.1 General: Use and Operation of the Premises, Site, Hotel, Site Improvements and all other Improvements. Lessee covenants and agrees that during construction and thereafter through the remainder of the Lease Term, Lessee shall comply with all of the following use and operational requirements, restrictions, and prohibitions:
(i) Lessee shall operate and maintain the Hotel and Bungalows in full compliance with the Required Hotel Standard, all applicable Governmental Requirements, and the express provisions set forth in this Lease, as the same may be amended from time to time. Uses normally incidental to a hotel use, including without limitation a restaurant, cocktail lounge, cleaning and laundry service, banquet and catering facilities, meeting rooms, gift shop, spa, resort retail, magazine stand, barber or beauty shop, travel agency, 22 16-123 23
airline ticket office, automobile rental operation, and recreational facilities, shall also be permitted, subject to whatever special permits for such uses may be required therefor from time to time in accordance with Governmental Requirements. The business conducted by each sublessee, licensee, and concessionaire on the Premises and Site similarly shall be consistent with the Required Hotel Standard and the high quality required for the Hotel, Bungalows and Site Improvements generally.
If the AAA four diamond hotel standards change, the Required Hotel Standard automatically shall be deemed to change accordingly, subject to the provisions in this Section 7.1(i) set forth hereinbelow.
If the AAA ceases to publish hotel rating guidelines, then for purposes of this Lease the "Required Hotel Standard" shall mean a standard of operation that meets all criteria for the most substantially equivalent standard to a AAA four diamond hotel standard under such other rating system that is then generally recognized by the hotel industry. If in connection with any change in, or choice of a replacement rating system Lessor and Lessee are unable to agree upon such changed or replacement rating system, then the City Manager or his or her designee shall have the authority to select the replacement rating system to be used.
In addition to the foregoing, the Parties acknowledge that the Lease Term provided for herein is lengthy, that the hotel marketplace in general and hotel standards in particular change over time, and that flexibility needs to be built into the definition of "Required Hotel Standard" to accommodate such changes. Accordingly, the Parties agree that the Required Hotel Standard is intended to keep the Hotel and Bungalows on a par (or better) than the prevailing standard in comparable quality hotels in the Orange County marketplace within a ten (10) mile radius of the Premises, as currently represented by the AAA four diamond standard, but subject to deviations from such standard as the market dictates, and that if either Parry believes at any time during the Lease Term that changes in said hotel marketplace have occurred that warrant changes to the then - applicable Required Hotel Standard, that Party shall have the right to notify the other Party in writing of such position and the basis for such position, in which event the Parties agree thereafter to meet and confer in good faith to consider whether to mutually approve a modification in the Required Hotel Standard hereunder. If the Parties agree to a modification to the Required Hotel Standard, they shall cooperate by approving and executing an appropriate amendment to this Lease memorializing the agreed -upon change(s). If Lessee requests in writing that Lessor approve one or more deviations from the AAA four diamond (or substitute) standard, Lessor's approval of such deviation shall not be unreasonably delayed, conditioned, or denied. If the Parties do not mutually agree to modify the Required Hotel Standard, either Party shall have the right to have the dispute concerning changes to the Required Hotel Standard determined by binding arbitration, which arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association (with no right to discovery) or such other method and procedure of arbitration to which the Parties may agree at the time. Each Party shall bear its own costs with respect to any such arbitration and the Parties shall each pay fifty 23 16-123 24
percent (50%) of the cost of the arbitrator(s). The final determination of the arbitrator shall be memorialized in an appropriate amendment to this Lease, which shall be executed by both Parties.
(ii) Lessee shall not allow the Premises and/or Site to be used for any of the following purposes, which are expressly prohibited: (i) Timeshare use; (ii) long-term residential use, which for purposes of this Lease shall mean continuous occupancy of more than twenty-five percent (25%) of the 130 guest rooms in the Hotel (the Bungalows on the Site may not be used for long-term residential use, as defined by this Section, and are excluded from the twenty-five percent allowance) at any one time by the same occupants for periods in excess of twenty-eight (28) consecutive days (and with the understanding that for purposes of this clause (ii) a Hotel guest shall be deemed to be continuously occupying a guest room for a period in excess of twenty-eight (28) consecutive days if he or she continuously occupies any room in the Hotel for a period in excess of twenty-eight (28) consecutive days, even if he or she moves from one guest room to another guest room one or more times during or after the twenty-eight (28) day period); and (iii) any adult entertainment purpose, as defined from time to time in the City of Newport Beach Municipal Code (provided that this prohibition is not intended and shall not be interpreted to regulate in violation of applicable Governmental Requirements the private non -business activity of an individual that is confined to such individual's individual hotel room). (iii) Subject to Sections 10.4-10.6 and 14.3-14.4 of this Lease and periods of renovation, from the initial opening of the Hotel and Bungalows through the entire Lease Term, Lessee shall cause the Hotel to be open for business to the general public every day of the year and Lessee shall operate the Hotel in substantially complete fashion in accordance with the standards set forth in this Lease. Lessee shall stock and maintain adequate working capital and adequate inventories of food, beverages, operating equipment, and supplies consistent with the business(es) conducted on the Premises and Site.
(iv) Lessee shall not place or permit to be placed on any portion of the Premises and/or Site, in locations that are visible from any location off of the Premises and/or Site, any art, displays, monuments, signs, logos, or advertising unless such art, displays, monuments, signs, logos, or advertising, including without limitation the size, design, subject, wording, composition, color, and lighting thereof, are consistent with the City's Municipal Code and any other applicable Governmental Requirements.
(v) To the maximum extent permitted consistent with applicable Governmental Requirements, without the prior written approval of the City Manager or his or her designee, which approval may be withheld in his/her sole and absolute discretion, Lessee shall not erect or maintain or allow to be erected or maintained any antennae or other device for the transmission or reception of television signals or any other form of electromagnetic radiation outdoors above ground on any portion of the Premises and/or Site, whether attached to an Improvement or otherwise.
7.2 Management by pproved Hotel Management Company; Changes in Hotel 24 16-123 25
Management Company and New or Amended Hotel Management Agreement; Removal/Replacement of Hotel Management. _ At all times from the date the Hotel and/or Bungalows open for business to the general public through the remainder of the Lease Term Lessee shall cause the day-to-day operation of the Hotel and/or Bungalows to be managed by a Hotel Management Company approved by Lessor and, in this regard, Lessee shall cause the Hotel Management Company to continuously (24 hours per day during all days that the Hotel and/or Bungalows are open for business) maintain competent and professional staff on the Premises and Site.
The following Hotel Management Companies shall be deemed approved by Lessor and shall require no further approval by Lessor hereunder: (i) Ace Hotels; (ii) Ascend Collection offered by Choice Brands; (iii) the following Denihan Hospitality brands: The James, The Benjamin and Affinia; (iv) Dolce Hotels; (v) Fairmont Hotels; (vi) Four Seasons Hotels; (vii) the following Hilton Brands: Curio, Conrad and Waldorf-Astoria; (viii) the following Hyatt brands: Andaz, Alila, Thompson Hotels, Hyatt Centric, Miraval, Hyatt Unbound, Destination by Hyatt, JDV by Hyatt, Grand Hyatt, Hyatt Regency, and Park Hyatt; (ix) Kimpton or the following Kimpton Hotels brands: Argonaut, Monaco, and Palomar; (x) Loews Hotels;; (xi) Mandarin Oriental; (xii) the following Marriott brands: Autograph Collection, AC, Bulgari, JW Marriott, Marriott, Renaissance Hotels, Ritz -Carlton Hotels, Le Meridien, Luxury Collection, Sheraton Resorts, St. Regis, Westin Hotels & Resorts, and W Hotel; (xiii) Morgan Hotels (all brands); (xiv) the following Montage Hotels & Resorts brands:
Montage Hotels and Pendry Hotels; (xv) Omni Hotels; (xvii) Orient Express Hotels; (xviii) Public Chicago Hotel; (xviiix) Radisson Blu offered by Carlson; (xiv) Raffles Hotels and Resorts; (xx) Standard International Hotels -all brands; the following Starwood Capital Group brands: I Hotel, Baccarat Hotel, Treehouse Hotels, and SH Collection; (xxi) Rosewood; (xxii) Auberge.
As to any Hotel Management Company that is not deemed approved pursuant to the preceding paragraph, Lessee shall submit to the City Manager or his or her designee for his or her review and approval the identity of the Hotel Management Company Lessee desires to have manage the Hotel and/or Bungalows. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay approval of the Hotel Management Company and shall grant such approval if Lessee provides evidence reasonably satisfactory to the City Manager or his or her designee that (i) the executive management of the Hotel Management Company who will be responsible for the management of the Hotel and/or Bungalows shall have a minimum of ten (10) years' experience in the successful operation of hotels in Southern California on a par (or better) than the prevailing standard in comparable quality to the Hotel and/or Bungalows; (ii) the Hotel Management Company, its principals, and all of the individuals who will be responsible for managing the Hotel on the Premises and Site are of good moral character and none of them ever has been convicted of a felony involving moral turpitude, including without limitation any crime involving dishonesty, theft, embezzlement, forgery, violence, or physical force against another person or persons; and (iii) the Hotel Management Company has or will be in a position to participate in a nationwide reservation system.
Concurrently with submitting its request for approval of the Hotel Management Company, Lessee shall submit to the City Manager or his or her designee all information needed to demonstrate compliance with the foregoing criteria and thereafter, upon Lessor's request, 25 16-123 26
Lessee shall cooperate with Lessor and provide such additional information as Lessor may reasonably request relating to such criteria or other factors bearing upon Lessor's approval of the Hotel Management Company. If the City Manager or his or her designee disapproves the Hotel Management Company, he or she shall do so by written notice to Lessee stating the reasons for such disapproval.
In addition to the foregoing, at the time set forth in the Schedule of Performance (as to the first Hotel Management Company to be approved or deemed approved prior to the Lease Commencement Date pursuant to Sections 3.1.4 and 3.2.5 of this Lease) or prior to the time that any new or different Hotel Management Company commences to manage and operate the Hotel and/or Bungalows on the Premises and Site, and whether or not such Hotel Management Company is deemed approved by Lessor as provided herein, Lessee shall submit to the City Manager of Lessor or his or her designee for his or her approval the form of the hotel management agreement that Lessee proposes to enter into with the Hotel Management Company ("Hotel Management Agreement"); provided, that Lessee shall have the right to redact from the Hotel Management Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Management Company. In addition, upon Lessor's request, Lessee shall cooperate with Lessor and provide such additional information as Lessor may reasonably request relating to such criteria or other factors bearing upon Lessor's approval of the Hotel Management Agreement. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay approval of the Hotel Management Agreement and shall grant such approval if Lessee provides evidence reasonably satisfactory to the City Manager or his or her designee that the Hotel Management Agreement incorporates the applicable obligations of Lessee set forth in this Lease, including without limitation Section 7.4 hereof, and is consistent in all respects with this Lease. If the City Manager or his or her designee disapproves the Hotel Management Agreement, he or she shall do so by written notice to Lessee stating the reasons for such disapproval. Within five (5) days after Lessee and the Hotel Management Company execute and deliver the Hotel Management Agreement, Lessee shall deliver to Lessor a complete final executed copy consistent with Lessor's approval; provided, that Lessee shall have the right to redact from the Hotel Management Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Management Company as business trade information that is not a matter of public record.
If after Lessor's approval of the Hotel Management Company and the Hotel Management Agreement, as provided herein, Lessee desires either to (i) change the Hotel Management Company or (ii) enter into a new Hotel Management Agreement (provided that a mere amendment for an extension of the term of the previously approved Hotel Management Agreement shall not be deemed to constitute a new Hotel Management Agreement for purposes of this Section 7.2), Lessee shall be required to submit such matter(s) to the City Manager or his or her designee, who shall have the authority on behalf of Lessor to approve or disapprove the same. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay approval of a change in the Hotel Management Company and/or a new Hotel Management Agreement and shall grant such approval(s) consistent with the criteria and procedures set forth above. In no event shall Lessee change the Hotel Management Company or amend or enter into a new Hotel Management Agreement requiring Lessor's approval 26 16-123 27
hereunder without first obtaining Lessor's approval. Within five (5) days after Lessee enters into any new or amended Hotel Management Agreement, Lessee shall deliver to Lessor a complete final executed copy consistent with Lessor's approval; provided, that Lessee shall have the right to redact from any such new or amended Hotel Management Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Management Company as business trade information that is not a matter of public record.
In addition to the foregoing, Lessor shall have the right, but not the obligation, upon delivery of ninety (90) days written notice to Lessee, to require Lessee to remove the Hotel Management Company and replace the Hotel Management Company with another Hotel Management Company meeting the requirements set forth in This Section 7.2 if Lessor reasonably determines that the Hotel Management Company on the Premises or Site is guilty of "Gross Mismanagement." For purposes of this Lease, "Gross Mismanagement" shall include, but is not limited to, any of the following: (i) the Hotel Management Company's intentional underreporting of Gross Room Revenues or Gross Non -Room Revenues; (ii) the Hotel Management Company's failure to timely cure a Default under Section 7.1 of this Lease after and despite Lessor's delivery of written notice; and (iii) the Hotel Management Company's failure to timely cure more than three (3) separate Defaults under Article 8 ("Maintenance and Repairs") of this Lease that occur during any continuous one (1) year period during the Lease Term, after and despite Lessor's delivery of written notice of Default.
7.3 Hotel Franchisor and Hotel Franchise Agreement. Lessee shall have the right but not the obligation from time to time to operate the Hotel and/or Bungalows as a franchise of a hotel company.
The following Hotel Franchisors shall be deemed approved by Lessor and shall require no further approval by Lessor hereunder: (i) Ace Hotels; (ii) Ascend Collection offered by Choice Brands; (iii) the following Denihan Hospitality brands: The James, The Benjamin and Affinia; (iv) Dolce Hotels; (v) Fairmont Hotels; (vi) Four Seasons Hotels; (vii) the following Hilton Brands: Curio, Conrad and Waldorf-Astoria; (viii) the following Hyatt brands: Andaz, Alila, Thompson Hotels, Hyatt Centric, Miraval, Hyatt Unbound, Destination by Hyatt, JDV by Hyatt, Grand Hyatt, Hyatt Regency, and Park Hyatt; (ix) Kimpton or the following Kimpton Hotels brands: Argonaut, Monaco, and Palomar; (x) Loews Hotels;; (xi) Mandarin Oriental; (xii) the following Marriott brands: Autograph Collection, AC, Bulgari, JW Marriott, Marriott, Renaissance Hotels, Ritz -Carlton Hotels, Le Meridien, Luxury Collection, Sheraton Resorts, St.
Regis, Westin Hotels & Resorts, and W Hotel; (xiii) Morgan Hotels (all brands); (xiv) the following Montage Hotels & Resorts brands: Montage Hotels and Pendry Hotels; (xv) Omni Hotels; (xvii) Orient Express Hotels; (xviii) Public Chicago Hotel; (xviiix) Radisson Blu offered by Carlson; (xiv) Raffles Hotels and Resorts; (xx) Standard International Hotels -all brands; the following Starwood Capital Group brands: I Hotel, Baccarat Hotel, Treehouse Hotels, and SH Collection; (xxi) Rosewood; (xxii) Auberge.
As to any Hotel Franchisor that is not deemed approved pursuant to the preceding paragraph, Lessee shall submit to the City Manager or his or her designee for his or her review and approval the identity of the Hotel Franchisor with which Lessee desires to affiliate. The 27 16-123 28
City Manager or his or her designee shall not unreasonably withhold, condition, or delay approval of the Hotel Franchisor is a nationally recognized hotel chain of comparable quality to the list of pre -approved Hotel Franchisors listed in the preceding paragraph with a minimum of ten (10) years' experience in the successful franchising of hotels in Southern California comparable in quality to the Hotel and the Bungalows to be operated and maintained on the Premises and Site. Concurrently with submitting its request for approval of the Hotel Franchisor, Lessee shall submit to the City Manager or his or her designee all information needed to demonstrate compliance with the foregoing criteria and thereafter, upon Lessor's request, Lessee shall cooperate with Lessor and provide such additional information as Lessor may reasonably request relating to such criteria or other factors bearing upon Lessor's approval of the Hotel Franchisor. If the City Manager or his or her designee disapproves the Hotel Franchisor, he or she shall do so by written notice to Lessee stating the reasons for such disapproval.
In addition to the foregoing, at the time set forth in the Schedule of Performance (as to the first Hotel Franchisor to be approved or deemed approved prior to the Lease Commencement Date pursuant to Sections 3.1.5 and 3.2.6 of this Lease) or prior to the time that Lessee enters into an agreement with any new or different Hotel Franchisor with respect to the Hotel on the Premises, and whether or not such Hotel Franchisor is deemed approved by Lessor as provided herein, Lessee shall submit to the City Manager of Lessor or his or her designee for his or her approval the form of the franchise agreement that Lessee proposes to enter into with the Hotel Franchisor ("Hotel Franchise Agreement"); provided, that Lessee shall have the right to redact from the Hotel Franchise Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Franchisor. In addition, Lessee shall provide an amendment to the Hotel Franchise Agreement that incorporates the Bungalows subject to the same terms. Upon Lessor's request, Lessee shall cooperate with Lessor and provide such additional information as Lessor may reasonably request relating to such criteria or other factors bearing upon Lessor's approval of the Hotel Franchise Agreement or amendment to the Hotel Franchise Agreement to include the Bungalows. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay approval of the Hotel Franchise Agreement, and/or amendment to the Hotel Franchise Agreement to include the Bungalows, and shall grant such approval if Lessee provides evidence reasonably satisfactory to the City Manager or his or her designee that the Hotel Franchise Agreement and/or amendment to the Hotel Franchise Agreement to include the Bungalows, is consistent in all respects with this Lease. If the City Manager or his or her designee disapproves the Hotel Franchise Agreement and/or amendment to the Hotel Franchise Agreement to include the Bungalows, he or she shall do so by written notice to Lessee stating the reasons for such disapproval. Within five (5) days after Lessee and the Hotel Franchisor execute and deliver the Hotel Franchise Agreement or amendment to the Hotel Franchise Agreement to include the Bungalows, Lessee shall deliver to Lessor a complete final executed copy consistent with Lessor's approval; provided, that Lessee shall have the right to redact from the Hotel Franchise Agreement, or the amendment, submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Franchisor as business trade information that is not a matter of public record.
If after Lessor's approval of the Hotel Franchisor and the Hotel Franchise 28 16-123 29
Agreement, as provided herein, Lessee desires either to (i) change the Hotel Franchisor or (ii) enter into a new Hotel Franchise Agreement (provided that a mere amendment for an extension of the term of the previously approved Hotel Franchise Agreement shall not be deemed to constitute a new Hotel Franchise Agreement for purposes of this Section 7.3), Lessee shall be required to submit such matter(s) to the City Manager or his or her designee, who shall have the authority on behalf of Lessor to approve or disapprove the same. The City Manager or his or her designee shall not unreasonably withhold, condition, or delay approval of a change in the Hotel Franchisor and/or a new Hotel Franchise Agreement and shall grant such approval(s) consistent with the criteria and procedures set forth above. In no event shall Lessee change the Hotel Franchisor or amend or enter into a new Hotel Franchise Agreement requiring Lessor's approval hereunder without first obtaining Lessor's approval. Within five (5) days after Lessee enters into any new or amended Hotel Franchise Agreement, Lessee shall deliver to Lessor a complete final executed copy consistent with Lessor's approval; provided, that Lessee shall have the right to redact from any such new or amended Hotel Franchise Agreement submitted to Lessor the amount of the fees or charges payable by Lessee to the Hotel Franchisor as business trade information that is not a matter of public record.
7.4 Prohibition on Lessee's, Hotel Management Company's, and Subcontractors' Employment or Retention of Certain Persons: Lessor's Right to Require Removal. To the maximum extent permitted by law, during the entire Lease Term Lessee shall not knowingly employ or retain and shall not permit the Hotel Management Company or any other independent contractor, subcontractor, or firm operating on or from the Premises or Site to employ or retain any person who works at or from the Premises or Site and who is not of good moral character, which for purposes of this Lease shall mean that such person (i) is registered or is required to be registered as a sex offender in California or any other state; (ii) has been convicted of a crime in another country or state that would require such person to register as a sex offender in California if such crime were committed in California; (iii) has been convicted in any country or state at any time of a felony involving moral turpitude, including without limitation any crime involving dishonesty, theft, embezzlement, forgery, extortion, or intimidation, violence, or physical force, or the threat of violence or physical force against any other person or persons; or (iv) has a criminal charge then pending based on the alleged commission of a felony meeting the requirements of clause (iii) (provided, that as to persons who meet the disqualification of this clause (iv) only, such persons shall not be considered to meet the disqualification of this clause (iv) if the criminal charge is dropped, the person is acquitted of the alleged criminal offense, or the criminal case is finally disposed of on a basis that does not result in the person meeting any of the disqualifications in clauses (i)-(iii), inclusive). Lessee shall institute appropriate employment screening procedures to verify that all of Lessee's employees who work at or from the Premises are of good moral character and through the Hotel Management Agreement and any other contracts with independent contractors, subcontractors, and other firms operating on or from the Premises or Site Lessee shall require that those other firms and entities institute similar appropriate employment screening procedures as well. The requirements of this Section 7.4 shall be included in the Hotel Management Agreement 29 16-123 30
approved by Lessor in accordance with Section 3.2.5 of this Lease (prior to the Commencement Date) and Section 7.2 (with respect to any new or amended Hotel Management Agreement submitted to Lessor from and after the Commencement Date).
The requirements of this Section 7.4 shall be included in each contract entered into by Lessee, the Hotel Management Company, or any other authorized agent of Lessee with any other person, firm, or entity that occupies space or provides services on the Premises or Site during the Lease Term.
In addition to Lessor's rights under Section 7.2 to require removal/replacement of the Hotel Management Company for Gross Mismanagement, to the maximum extent permitted by law Lessor shall have the right, but not the obligation, to require Lessee, the Hotel Management Company, and any other person, firm, or entity that occupies space or provides services on the Premises or Site during the Lease Term, as applicable, to immediately remove or cause the removal from the Premises or Site and to immediately terminate or cause termination of the employment or retention of any person who is not of good moral character, as provided herein.
7.5 Name of Hotel and Bungalows; Promotions and Advertising. At all times the Hotel, Bungalows or Site Improvements shall be operated under the trade name of Lido House, Lido House Hotel, or such other trade name that is approved by Lessor in its reasonable discretion; provided that Lessee shall at all times have the right to add or include in the name of the Hotel and/or Bungalows either or both of the following without Lessor's written consent: (i) "Newport" or "Newport Beach"; and (ii) the trade name of the Hotel Franchisor. All of Lessee's promotions and advertising for the Hotel and/or Bungalows shall refer to and use said name and, if the word "Newport" or "Newport Beach" is not part of the name of the Hotel itself all such promotions and advertising shall prominently include reference to the Hotel's location in the City of Newport Beach.
12. Article 8. Article 8 (Maintenance and Repairs) shall be amended to renumber Section 8.1 as 8.1.1, add Section 8.1.2 and amend Sections 8.1.3 through 8.1.7 to read as follows:
ARTICLE 8
MAINTENANCE AND REPAIRS
8.1.1 Maintenance and Repairs; General. At Lessee's sole cost and expense, at all times during the Lease Term, Lessee shall be responsible for maintaining, repairing, and operating the Premises, Site, Site Improvements, all other Improvements constructed or to be constructed thereon (including landscaping, lighting, and signage), and all equipment and personal property placed from time to time on the Premises in a quality and condition consistent with the Required Hotel Standard and similar quality hotel properties in the Southern California marketplace, in compliance with the terms of the City of Newport Beach Municipal Code, other applicable Governmental Requirements, and the following:
30 16-123 31
(i) All Improvements on the Premises and/or Site shall be maintained in appropriate condition in accordance with the practices prevailing in the operations of similar developments, and in conformance mld substantial compliance with all plans, drawings, and related documents approved by Lessor pursuant to this Lease and all conditions of approval of land use entitlements adopted by Lessor in its governmental or regulatory capacity, including without limitation the interiors and exteriors of all buildings and structures and all grounds to the curbline, the entrances, windows, partitions, doors, lighting and plumbing fixtures, heating, ventilation and air conditioning systems, benches, shelters, planters, kiosks, trash containers, signs, sculptures, fountains, play areas, swimming pools, jacuzzis, spas, exercise rooms, platforms, stages, lateral water and sanitary sewer lines, drainage facilities, sidewalks, driveways, parking areas and facilities, landscaping and irrigation facilities, exterior lighting systems, and pedestrian walkways. (ii) All furnishings and fixtures on the Premises and Site shall be kept at all times in a neat, clean, and appropriate condition in accordance with the practices prevailing in the operations of similar developments and shall be periodically repaired and replaced in accordance with the practices prevailing in the operations of similar developments. (iii) All exterior and interior painted surfaces shall be kept clean, shall be periodically repainted, and shall not be allowed to show unreasonable peeling or worn surfaces. (iv) All wallpapered or other treated surfaces shall be kept clean and shall be periodically repaired or replaced in accordance with the practices prevailing in the operations of similar developments.
(v) Landscape maintenance shall include, without limitation, periodic watering/irrigation, fertilization, mowing, edging, trimming of grass, tree and shrub pruning, trimming, and shaping of trees and shrubs to maintain a natural and healthy appearance, road visibility, and irrigation coverage, and replacement, as needed, of all dead or diseased plant materials, control of weeds in all planters, shrubs, lawns, ground covers, and other planted areas; and staking for support of trees.
(vi) Clean-up maintenance shall include, without limitation, maintenance of all sidewalks, paths, and other paved areas to keep the same in a clean and weed -free condition, maintenance of all such areas to keep the same clear of dirt, mud, trash, debris, and other matter which is unsafe or unsightly, removal of all trash, litter, and other debris from improvements and landscaping, and clearance and cleaning of all areas maintained prior to the end of each day on which maintenance operations are performed to ensure that all cuttings, weeds, leaves, and other debris are properly disposed of by maintenance workers. (vii) Maintenance of appropriate entrance, exit, and directional signage, markers, and lights shall be provided as reasonably required and in accordance with the practices prevailing in the operation of similar developments. 31 16-123 32
(viii) Lighting fixtures shall be cleaned and lamps/bulbs shall be promptly replaced if not operating.
(ix) Pavement striping, markers, directional signs, and similar improvements shall be periodically repainted or replaced as necessary to maintain the same in appropriate condition in accordance with the practices prevailing in the operations of similar developments. (x) Adequate security personnel and security measures shall be instituted and maintained in a commercially reasonable manner to provide a safe and secure environment in all interior and exterior areas of the Premises or Site and for all activities and events occurring on the Premises or Site.
8.1.2 Maintenance and Repairs; Specific to Public Parking Area. Lessee, at its sole cost and expense, shall be responsible for the ongoing maintenance and repair of the Public Parking Area depicted in Exhibit "A-Y attached hereto and incorporated herein by this reference.
Maintenance shall include, but not be limited to, routine cleaning, and repair of the concrete sidewalks, curb and gutter, asphalt, parking space lines, trash and graffiti removal, as well as proper landscape maintenance and restoration, cultivation, mowing, trimming, weed and pest control, and proper soil amendments (mulch, fertilizer, etc.) as applicable and specified; but shall specifically exclude the maintenance and repair of public utilities located in the right-of-way and not serving the Site or Premises, replacement or capital expenditures beyond the installation and regular and routine maintenance and repair of the improvements to the Public Parking Area set forth in subsection (ii) herein below, and metering of the Public Parking Area. (i) Use of Public Parking Area. Lessee shall act in good faith to monitor and ensure the Public Parking Spaces are strictly available to the public and not utilized by guests, employees, contractors, or invitees of Lessee. If the use of the Public Parking are frequently misused, as determined by the City's parking enforcement personnel, then Lessor may require Lessee to place signs, circulate flyers, and/or post other forms of communication within the Premises or Site to inform and remind guests, employees, contractors or invitees of Lessee that parking shall be limited within the Site or Premises. Notwithstanding the foregoing, if the Public Parking Spaces are metered by Lessor for a maximum of six (6) hours within a 24-hour period, such metering shall satisfy the obligations of Lessee pursuant to this subsection (i). In no event shall Lessee have an obligation to manage or monitor the City parking meters. (ii) Improvements. Lessee shall, at its sole cost and expense, install and maintain the improvements associated with the Public Parking Area as set forth in the Final Building Construction Plans, whether or not specified under this Section 8.1.2, to maintain safe and good working conditions of the Public Parking Area. (iii) Standard of Work. All maintenance performed by Lessee to the Public Parking Area shall be performed in a good and workmanlike manner to the satisfaction of Lessor, and in compliance with all applicable ordinances, regulations or law. As necessary, Lessee shall also obtain all applicable approvals and permits from the City and other governmental entities prior to any asphalt or landscaping replacements or redesign. 32 16-123 33
(iv) An annual report summarizing details of repairs and maintenance completed by Lessee for the prior calendar year, and a projected list of repairs and maintenance to be completed during the upcoming year. Such report shall be on a form approved by Lessor and shall be due in writing to Lessor by January 31st of each year following the year being reported.
8.2 Waste. Lessee shall not commit or suffer to be committed any waste or impairment of the Premises, Site, Site Improvements or the other Improvements, or any part thereof.
8.3 Hazardous Substances. Lessee covenants each and all of the following:
(i) Following the Commencement Date and within commercially reasonable time periods, Lessee shall remove all existing Hazardous Substances from the Premises and Site in the manner prescribed by law.
(ii) Upon completion of construction of the Hotel and prior to opening the Hotel for business to the general public the Premises shall be free and clear of any Hazardous Substances to the extent required by applicable law. Likewise, upon completion of construction of the Site Improvements and prior to opening the Site for business to the general public, the Site shall be free and clear of any Hazardous Substances to the extent required by applicable law.
(iii) The development, construction, and uses of the Premises required and permitted under this Lease do not require the presence of any Hazardous Substance on, in, or under the Premises, except for those customarily used in the ordinary course of business for such development, construction, and use consistent with applicable law.
Likewise, the development, construction, and use of the Site Improvements required and permitted under this Lease do not require the presence of any Hazardous Substance on, in, or under the Premises, except for those customarily used in the ordinary course of business for such development, construction, and use consistent with applicable law. (iv) If at any time during the Lease Term any Hazardous Substance is present on, in, or under the Premises or site (including, without limitation, the soil and groundwater) in violation of applicable law, Lessee, at no expense to Lessor, and at the earliest practicable date, shall remove such Hazardous Substances from the Premises (including without limitation any Hazardous Substances in the soil or groundwater) and any surrounding areas to which such Hazardous Substances may have migrated from the Premises or Site in accordance with and to the extent required by any and all applicable legal requirements. The parties intend to require Lessee to remove all Hazardous Substances from the Premises or Site and surrounding areas to which such Hazardous Substances may have migrated to the extent required by applicable law, if such Hazardous Substances are present at levels of concentration which require removal under applicable law. If, at any time during the Lease Term, Lessor has reasonable cause to believe one or more Hazardous Substances may be present on, in, or under the Premises or Site in 33 16-123 34
violation of applicable law, Lessor may by written notice inform Lessee of the basis for Lessor's concern and require Lessee to cause the Premises or Site to be tested for such Hazardous Substance(s) at Lessee's sole expense in accordance with a testing plan and schedule first approved in writing by Lessor. Lessee shall exercise reasonable diligence to submit a testing plan to Lessor within 30 days after the date of the Lessor's notice, endeavor to obtain Lessor's approval of the testing plan as soon as practicable thereafter, and cause the testing to begin within 30 days Lessor's approval of the testing plan. Notwithstanding the foregoing, nothing in this Section 8.3(iv) is intended to limit, restrict, or modify Lessor's obligations and responsibilities set forth in Sections 3.5.2 or 313.5.2 of this Lease. (v) Lessee shall not bring or allow to be brought onto the Premises or Site or use or store on the Premises or Site any Hazardous Substances without the prior express written consent of Lessor, except for those Hazardous Substances (including without limitation fuel stored in motor vehicles) customarily used in the ordinary course of business in the use and operation of the Premises, Site, Site Improvements and the Improvements.
(vi) The following covenants pertain to Lessee's occupancy and use of the Premises, Site, Site Improvements and Improvements:
(a) No underground storage tanks for Hazardous Substances shall be installed on or under the Premises and/or Site.
(b) Lessor and its officers, employees, contractors and agents shall at all times have the right to go upon and inspect the Premises, Site, Site Improvements and Improvements and the operations conducted thereon to assure compliance with the requirements herein stated. Lessor shall provide reasonable prior notice to Lessee of such entry, and shall seek to minimize interference with and interruption to Lessee's use of the Premises, Site, Site Improvements and Improvements as much as is reasonably feasible. Such entry shall be in compliance with all applicable safety rules and regulations. This inspection may include taking samples for testing of substances and materials present and/or testing soils on the Premises, Site, Site Improvements and Improvements. Lessor shall indemnify, defend, and hold harmless Lessee from and against any claims, liabilities, losses, and damage caused by Lessor during any such inspections (excepting that this indemnity obligation shall not apply to claims, liabilities, losses, and damage not created by Lessor and resulting only from Lessor's discovery of Hazardous Substances on the Premises), and Lessor shall be responsible for the prompt repair and/or restoration of any such damage caused by Lessor during any such inspection. (c) Lessee shall be responsible for posting on the Premises, Site, Site Improvements and Improvements any signs required by Section 25249.6 of the California Health and Safety Code and regulations promulgated pursuant thereto. Lessee shall also complete and file any business response plans or inventories required by Chapter 6.95. of the California Health and Safety Code and regulations promulgated pursuant thereto. Lessee shall concurrently file a copy of any such business response plan or inventory with Lessor. 34 16-123 35
(d) Lessee shall immediately notify Lessor in writing of the release of any Hazardous Substance on the Premises and Improvements in violation of applicable law. (e) Lessee shall to the extent required by applicable law immediately remove any Hazardous Substances located on the Premises and Improvements and shall dispose of such Hazardous Substances in a safe and legal manner. Lessee shall immediately disclose to Lessor its disposal of any Hazardous Substance located on the Premises, Site, Site Improvements and Improvements and upon Lessor's written request shall provide written documentation of its safe and legal disposal. Notwithstanding the foregoing, nothing in this Section 8.3(vi)(e) is intended to limit, restrict, or modify Lessor's obligations and responsibilities set forth in Sections 3.5.2 or 313.5.2 of this Lease. (f) Lessee shall be responsible for and bear the entire cost of removal and disposal of Hazardous Substances. Lessor may also pass through to Lessee any and all clean-up costs incurred by Lessor as a result of Lessee's activities on the Premises, Site, Site Improvements and Improvements or the presence of any Hazardous Substance(s) on, in, or under the Premises and Improvements. Upon termination of this Lease, Lessee is required, in accordance with all applicable laws, to remove from the Premises, Site and Improvements any equipment or improvement to the Premises that is contaminated by Hazardous Substances.
Notwithstanding the foregoing, nothing in this Section 8.3(vi)(f) is intended to limit, restrict, or modify Lessor's obligations and responsibilities set forth in Sections 3.5.2 or 313.6.2 of this Lease.
(vii) From and after the Commencement Date, Lessee shall indemnify, defend, and hold harmless City and its officials, officers, employees, agents, contractors, and consultants from and against any claims, actions, suits, legal and administrative proceedings, liability, injury, deficiency, damages, fines, penalties, punitive damages, costs, and expenses (including, without limitation, the cost of any cleanup, remediation, removal, mitigation, monitoring or testing of Hazardous Substances, and reasonable attorneys' fees) resulting from, arising out of, or based upon (a) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Substances on, under, in, or about, or the transportation of any Hazardous Substances to or from, the Premises or Site; and (b) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation or Hazardous Substances on, under, in, about, to, or from the Premises or Site. Notwithstanding the foregoing, nothing in this Section
8.3(vii) is intended to limit, restrict, or modify Lessor's obligations and responsibilities set forth in Sections 3.5.2 or 313.5.2 of this Lease and Lessee's indemnity obligations set forth herein shall not apply if Lessor is obligated and responsible thereunder for remediation and/or removal of the Hazardous Substances.
(viii) From and after the Commencement Date Lessee waives, releases, and discharges Lessor and its officials, officers, employees, agents, contractors, and consultants from any and all present and future claims, demands, suits, legal and administrative proceedings, and from all liability for damages, losses, costs, liabilities, fees, and expenses 35 16-123 36
(including, without limitation, attorneys' fees) arising out of or in any way connected with Lessor's or Lessee's use, maintenance, ownership, or operation of the Premises and/or Site, any Hazardous Substances on the Premises, and the existence of Hazardous Substances contamination in any state on the Premises and/or Site, however the Hazardous Substances came to be placed there, except that arising out of the intentional misconduct of Lessor or its officials, officers, employees, agents, contractors, or consultants. Lessee acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." As such relates to this Section 8.3, Lessee hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code.
Notwithstanding the foregoing, nothing in this Section 8.3(viii) is intended to limit, restrict, or modify Lessor's obligations and responsibilities set forth in Sections 3.5.2 or 313.5.2 of this Lease and Lessee's waiver of rights and release of claims set forth herein shall not apply if Lessor is obligated and responsible thereunder for remediation and/or removal of the Hazardous Substances.
8.4 Lessor Not Responsible for Maintenance or Repairs. Lessor shall have no responsibility for and shall not be required to perform any maintenance, repairs, or services or to assume any expense in connection with the Premises, the Site, the Site Improvements including the Public Parking Area and the Improvements, or any furnishings, fixtures, and equipment. Notwithstanding the foregoing, Lessor shall be responsible for any capital expenditures for the Public Parking Area beyond the installation and routine maintenance and repair of the improvements to the Public Parking Area set forth in Section 8.1.2 (ii) hereinabove or for the parking meters.
8.5 Capital Replacement Reserve Fund. Commencing no later than the Operating Commencement Date for purposes of the Hotel and related facilities constructed and operated by Lessee on the Premises, and/or the issuance of the certificate of occupancy by the City for the Site Improvements and related facilities constructed and operated by Lessee on the Site, and continuing thereafter through the balance of the Lease Term, Lessee shall establish and maintain a capital replacement reserve fund with a reputable financial institution reasonably acceptable to the City Manager or his or her designee (the "Capital Replacement Reserve Fund") and shall deposit into said fund a minimum of the following amounts: (i) for the first Operating Year, two percent (2%) of the sum of Gross Room Revenues and Gross Non -Room Revenues for said year; (ii) for the second Operating Year, three percent (3%) of the sum of Gross Room Revenues and Gross Non -Room Revenues for said year; and (iii) for the third and each subsequent Operating Year through the balance of the Initial Term, four and one-half percent (4-1/2%) of the sum of Gross Room Revenues and Gross Non -Room Revenues for each said year; and (iv) for each year during the Option Term, if applicable, four percent (4%) of the sum of Gross Room Revenues and Gross Non -Room Revenues for each said year (collectively, 36 16-123 37
the "Capital Replacement Reserve"). All interest and earnings on funds deposited into the Capital Replacement Reserve Fund shall be kept in said fund but shall not be credited against the minimum deposits required hereunder. Within thirty (30) days after the close of each Operating Year during the Initial Term, Lessee shall submit to Lessor (i) evidence that Lessee has deposited the required minimum amount in the Capital Replacement Reserve Fund for the previous Operating Year (based upon Lessee's accounting for Gross Room Revenues and Gross Non -Room Revenues that is due at that time), (ii) an itemization of all withdrawals from and expenditures of funds deposited into the Capital Replacement Reserve Fund in the preceding Operating Year and the purpose thereof, and (iii) the balance remaining in the Capital Replacement Reserve Fund at the time the annual report is prepared. The Capital Replacement Reserve Fund shall not be pledged or encumbered, except to a permitted Mortgagee, and shall be used only for capital expenditures for additions, replacements, renovations, or significant upgrades of or to the Site Improvements or Improvements, including fixtures and equipment, that have a useful life of not less than five (5) years which benefit the Premises and/or Site and which are approved in advance by the City Manager of City or his or her designee, which approval(s) shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Lessee acknowledges that its responsibility to maintain, repair, and replace the Hotel and Site Improvements and related Improvements as required hereunder shall not be limited or restricted based on the amount of funds held from time to time in the Capital Replacement Reserve Fund. Upon the expiration or earlier termination of this Lease, all funds in the Capital Replacement Reserve Fund shall be allocated first to any repairs, maintenance, replacements, and renewals necessary to place the Hotel and Site Improvements in the physical condition required by this Lease, as reasonably determined by Lessor, and any excess shall be the sole property of Lessee.
8.6 Lessor's Rights/Remedies for Deficient Maintenance and Repairs. In addition to Lessor's rights and remedies for Lessee's Default hereunder, as set forth in Article 16 of this Lease, Lessor shall have the rights and remedies set forth in this Section 8.6. If Lessor delivers written notice to Lessee that the maintenml ce or condition of the Premises or Site or any portion thereof or any Improvements thereon does not comply with this Lease or that Lessee has committed waste and such notice describes the deficiencies/conditions that need to be corrected, remedied, or cured, Lessee shall correct, remedy, or cure the deficiencies (i) within two (2) business days after receipt of Lessor's written notice if the deficiencies relate to dirt, mud, trash, debris, waste, litter, graffiti, broken or inoperative irrigation systems, or other landscape maintenance deficiencies or (ii) within thirty (30) days after receipt of Lessor's written notice if the deficiencies relate to any other maintenance or repair requirements unless (as to deficiencies otherwise subject to this clause (ii)) Lessor's notice states that the deficiencies are an urgent matter relating to public health and safety, in which case Lessee shall correct, remedy, or cure the deficiencies with all due diligence and shall complete the correction, remedy, or cure at the earliest possible time but in no event more than two (2) business days after receipt of Lessor's written notice, subject only to extensions of time if Lessee's inability to correct, remedy, or cure the deficiency(ies) within said two (2) day period is excusable due to an Event or Events of Force Majeure. Notwithstanding the foregoing, in the event such deficiencies are of a nature which takes longer than thirty (30) days or two (2) business days to cure, correct or remedy, then such time frames shall be extended so long as Lessee commences to cure, correct, or remedy such deficiencies, and diligently prosecutes same to completion. In the 37 16-123 38
event Lessee fails to maintain or repair the Premises or Site or any portion thereof or any Improvements or Site Improvements thereon in accordance with this Lease and fails to cure any deficiencies within the applicable correction, remedy, or cure period described above, Lessor, in addition to any other rights and remedies hereunder, shall have the right to enter onto the Premises or Site or to contract with a third party or parties for the correction, remedy, and cure of any such deficiencies, and Lessee shall be responsible for payment of all such costs actually and reasonably incurred by Lessor.
13. Article 9. Sections 9.1 through 9.5 of Article 9 (Taxes, Assessments, Utilities, and Other Charges) shall be amended to read as follows:
ARTICLE 9
TAXES, ASSESSMENTS, UTILITIES, AND OTHER CHARGES
9.1 Lessee's Obligation to Pay Impositions. In accordance with California Revenue and Taxation Code Section 107.6(a), the Parties acknowledge that from and after the Commencement Date and for the balance of the Lease Term Lessee will have a possessory interest in the Premises and Site that will be subject to the obligation to pay possessory interest taxes.
Lessee agrees to pay or cause to be paid, as and when they become due and payable, and before any fine, penalty, interest, or cost may be added thereto, or become due or be imposed by operation of law for the nonpayment thereof, all taxes, assessments, franchises, excises, license and pelmit fees, and other governmental levies and charges, general and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever which at any time during the Lease Term may be assessed, levied, confirmed, imposed upon, or grow or become due and payable out of or in respect of, or become a lien on: (i) the Premises, Site, Site Improvements and Improvements or any part thereof or any appurtenance thereto; (ii) the rent and income received by Lessee from subtenants, guests, or others for the use or occupation of the Premises, Site and the Improvements thereon; or (iii) this transaction or any document to which Lessee is a party, creating or transferring an interest or estate in the Premises, Site, Improvements and Site Improvements. All such taxes, franchises, excises, license and permit fees, and other governmental levies and charges shall hereinafter be referred to as "Impositions," and any of the same shall hereinafter be referred to as an "Imposition". Notwithstanding the foregoing or any other provision of this Lease, an Imposition shall not include nor shall Lessor be responsible to pay any so-called "business license tax" or "gross receipts tax" (or the like) imposed upon landlords generally in connection with the operation of their business, even if such tax is calculated based upon rents payable under a lease. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the Lease Term and a part of which is included in a period of time either (i) before the commencement of the Lease Term or (ii) after the expiration of the Lease Term, shall (whether or not such Imposition shall be assessed, levied, confirmed, imposed upon, become a lien upon the Premises, Site, Improvements and/or Site Improvements, or shall become payable, during the Lease Term) be adjusted between Lessor and Lessee as of the commencement, expiration or termination 38 16-123 39
of the Lease Term, as applicable, so that Lessee shall pay that portion of such Imposition which is applicable to the Lease Term, and Lessor shall pay the remainder thereof.
The failure of Lessee to pay an Imposition that cannot under any circumstances give rise to a lien against the Premises, Site, Site Improvements and Improvements shall not be a breach of the second paragraph of this Section 9.1. Lessee hereby agrees to defend, indemnify, and hold harmless Lessor and Lessor's officials, officers, employees, and agents from and against all claims, liability, loss, damage, costs, or expenses (including reasonable attorney's fees and court costs) arising from or as a result of Lessee's failure to pay any Imposition to the extent that such Imposition relates to a fiscal period included within the Lease Term.
If, by law, any Imposition may at the option of the payer be paid in installments (whether or not interest shall accrue on the unpaid balance of such Imposition), Lessee may exercise the option to pay the same (and any accrued interest on the unpaid balance of such Imposition) in installments and, in such event, shall pay such installments during the Lease Term as the same respectively become due and before any fine, penalty, or further interest or cost may be added thereto; provided, however, that the amount of all installments of any such Imposition which will be the responsibility of Lessee pursuant to this Section 9.1, and which are to become due and payable after the expiration or termination of the Lease Term, shall be deposited with Lessor for such payment on the date which shall be ninety (90) days immediately prior to the date of such expiration or termination.
Lessee shall furnish to Lessor, within thirty (30) days after the date when any real property taxes, assessments, or any other Imposition which could have any effect on Lessor's title to the Premises or Site would become delinquent, official receipts of the appropriate taxing authority or other evidence, satisfactory to Lessor, evidencing payment thereof
Nothing in this Section 9.1 shall alter, modify or limit in any way the rights and obligations of Lessee to contest property tax assessments as set forth and as limited in Section 9.2 of this Lease.
9.2 Contesting Impositions. Notwithstanding Section 9.1, Lessee shall have the right to appeal or contest any Imposition subject to the limitations set forth in this Section
9.2. If Lessee desires to appeal or contest any Imposition, the appeal, contest, opposition, or objection shall be filed before the tax, assessment, or other Imposition at which it is directed becomes delinquent, written notice of the appeal, contest, opposition, or objection shall be given to Lessor before the date the tax, assessment, or other Imposition becomes delinquent, and Lessee shall prosecute such proceeding to final adjudication with reasonable dispatch. No such appeal, contest, opposition, or objection shall be continued or maintained after the date the tax, assessment, or other Imposition at which it is directed becomes delinquent unless Lessee has met one of the following conditions:
39 16-123 40
(i) paid such tax, assessment, or other charge under protest prior to its becoming delinquent; or
(ii) obtained and maintained a stay of all proceedings for enforcement and collection of the tax, assessment, or other Imposition by posting such bond or other matter required by law for such a stay; or
(iii) delivered to Lessor a good and sufficient bond in a form reasonably acceptable to Lessor's City Manager or designee, in an amount equal to one hundred twenty-five percent (125%) of the amount in controversy (inclusive of fines, interests, penalties, costs, and other expenses that may have accrued or been imposed thereon) and issued by a surety company authorized to issue undertakings in California, conditioned on the payment by Lessee of the tax, assessment, or other Imposition, together with any fines, interest, penalties, costs, and expenses that may have accrued or been imposed thereon within thirty (30) days after final determination of Lessee's appeal, contest, opposition, or objection to such tax, assessment, or other Imposition.
Lessee may only exercise its right to contest an Imposition hereunder if the subject legal proceedings shall operate to prevent the collection of the Imposition so contested, or the sale of the Premises, Site, Site Improvements and Improvements, or any part thereof, to satisfy the same, and only if Lessee shall, prior to the date such Imposition is due and payable, have given such reasonable security as may be required in order to insure the payment of such Imposition and prevent any sale, foreclosure, or forfeiture of the Premises, Site, Site Improvements and Improvements or any part thereof, by reason of such nonpayment. In the event of any such contest and the final determination thereof adversely to Lessee, Lessee shall, before any fine, interest, penalty, or cost may be added thereto for nonpayment thereof, pay fully and discharge the amounts involved in or affected by such contest, together with any penalties, fines, interest, costs, and expenses that may have accrued thereon or that may result from any such contest by Lessee and, after such payment and discharge by Lessee, Lessor shall promptly return to Lessee such security as Lessor shall have received in connection with such contest.
Lessor shall not be required to join in any appeal, contest, opposition, or objection brought by Lessee unless the provisions of any law requires that the proceeding be brought by or in the name of Lessor or any owner of the Premises or the Site. In that case, Lessor shall join in the proceeding or permit it to be brought in Lessor's name but such action shall be without cost or other liability to Lessor, and in this regard Lessee agrees to pay to Lessor all costs incurred by Lessor in connection therewith and Lessee further agrees to indemnify, defend, and save harmless Lessor from and against any and all loss, cost, or expense of any kind, including, but not limited to, reasonable attorneys' fees and expenses, which may be imposed upon or incurred by Lessor in connection therewith.
9.3 Utilities. Lessee agrees to pay or cause to be paid, as and when they become due, all hook-up and connection fees and all charges for water, sewer, electricity, gas, light, 40 16-123 41
heat, air conditioning, telephone, internet, cable television, solid waste/trash/refuse collection disposal, recycling, and other utility and communication services furnished to or rendered or used on or about the Premises, Site, Site Improvements and Improvements at all times during the Lease Term. Upon Lessee's written request, Lessor agrees to join in the grant of such easements and licenses upon the Premises or Site to any supplier of utilities to the Premises as necessary to construct, install, operate, and maintain any facilities, conduits, transmission lines, and pipelines for the provision of utility services to the Premises or Site; provided, however, that the locations of all such facilities, conduits, transmission lines, and pipelines associated with utility services located upon the Premises or Site shall be consistent with the Development Entitlements, Additional Development Entitlements for Improvements and Final Building Plans and shall be located below grade in subterranean easements.
9.4 Lessor's Right to Cure. If Lessee, in violation of the provisions of this Lease, shall fail to pay and to discharge any Impositions or any utilities furnished to or rendered or used on or about the Premises and/or the Site, Lessor shall have the right, but not the obligation, to pay or discharge such obligation(s), and in such event the amount paid by Lessor plus all of related Lessor's costs and expenses, including attorney fees, together with interest at the maximum legal rate or the rate of three percent (3%) over the prime rate of the largest bank operating in the State of California on the date payment is made by Lessor, whichever is lower shall be deemed to be and shall be payable by Lessee as additional Ground Rent and shall be reimbursed by Lessee to Lessor immediately upon demand.
9.5 Limits of Tax Liability. The provisions of this Lease shall not be deemed to require Lessee to pay municipal, county, state, or federal income or gross receipts or excess profits taxes assessed against Lessor, or municipal, county, state, or federal capital levy, estate, succession, inheritance, gift, or transfer taxes of Lessor, or corporation franchise taxes imposed upon any corporate owner of the fee of the Premises or the Site; provided, however, that in the event the State of California or any taxing authority thereunder changes or modifies the system of taxing real estate so as to tax the rental income from real estate in lieu of or in substitution (in whole or in part) for the real estate taxes and so as to impose a liability upon Lessor for the amount of such tax, then Lessee shall be liable under this Lease for the payment of the taxes so imposed during the Lease Term, or any renewal thereof, to the same extent as though the alternative tax was a tax upon the value of the Premises, Site, Site Improvements and Improvements. In order to detem line the amount of such alternative tax for which Lessee shall be liable, the Premises, Site, Site Improvements and Improvements shall be considered as if it was the only asset of Lessor, and the rent paid hereunder shall be considered as if it were the only income of Lessor.
14. Article 10. Article 10 (Ownership of and Responsibility for Improvements) shall be amended to read as follows:
ARTICLE 10
OWNERSHIP OF AND RESPONSIBILITY FOR IMPROVEMENTS
41 16-123 42
10.1 Ownership of Improvements During Lease Term. All Improvements on the Premises constructed or installed by Lessee as permitted or required by this Lease, shall, during the Lease Term, be and remain the property of Lessee. All Improvements located on the Premises, whether existing thereon at the Commencement Date or constructed or installed thereon by Lessee as permitted or required by this Lease, shall, at the expiration or sooner termination of the Lease Term, be and remain the property of Lessor. Additionally, all Improvements located on the Site, whether existing thereon at the Operating Commencement Date of the Site Improvements subject to Lessee's rights and obligations set forth in this Lease relating to alterations and additions, Lessee shall have no right at any time to waste, destroy, demolish, or remove any of the Improvements. Lessee's rights and powers with respect to the Improvements are subject to the terms and limitations of this Lease. Lessor and Lessee covenant for themselves and all persons claiming under or through them that the Improvements are real property.
10.2 Reversion of Improvements: Duty to Remove Personal PropertX. Upon the expiration or earlier termination of the Lease Term, whether by cancellation, forfeiture, or otherwise, all Improvements located on, in, or under the Premises and Site (including all fixtures and equipment affixed thereto) shall remain upon and be surrendered with the Premises as part thereof, and title to such Improvements shall vest in Lessor without any compensation to Lessee. Northing contained herein is intended or shall be construed to deny or abrogate Lessee's right, prior to the expiration or earlier termination of the Lease Term, to (i) receive any and all proceeds which are attributable to a Taking of Improvements belonging to Lessee immediately prior to the Date of Taking, to the extent provided in Article 14 of this Lease, or (ii) remove any furniture or equipment that is neither permanently affixed to, or reasonably necessary for the operation of the Premises and/or Site, any signage identifying Lessee (as distinguished from other signage used in the operation of the Premises and Improvements), or any personal property, upon the expiration or earlier termination of the Lease term or at any time during the Lease Term, subject to Lessee's obligations under this Lease and use the Premises and/or the Site for the uses described in Section 7.1.
No later than the expiration or earlier termination of the Lease Term, Lessee shall remove, at its sole cost and expense, all furniture, equipment, and other personal property that is not affixed to the Improvements or reasonably necessary for the orderly operation of the Premises, Site, Site Improvements or Improvements. Should Lessee fail to remove such furniture, equipment, and other personal property within said period, and said failure continues for ten (10) days after written notice from Lessor to Lessee, Lessee shall waive and lose all right, title, and interest therein, and Lessor may elect to keep the same upon the Premises or Site or to sell, remove, or demolish and destroy the same, in which event Lessee shall reimburse Lessor for all of Lessor's actual and reasonable costs for all of Lessor's actual and reasonable costs (including without limitation employee costs at the full payroll rate) incurred in connection with any such sale, removal, or demolition/destruction in excess of any consideration received by Lessor as a result thereof. 42 16-123 43
As between Lessor and Lessee, title to all utility lines, transformer vaults, and all other utility facilities constructed or installed by Lessee upon the Premises or Site shall vest in Lessor upon construction or installation to the extent that they are not owned by a utility company or other third -party provider. Notwithstanding the foregoing, such utility lines, transformer vaults, and all other utility facilities (other than any sewer, storm drain, or other utility systems that have been dedicated to and accepted by Lessor pursuant to a dedication separate from this Lease) shall be maintained, repaired, and replaced, if and as needed, by Lessee during the Lease Term.
10.4 Damage to or Destruction of Hotel, Site Improvements and Improvements.
10.4.1 Lessee to Give Notice. In case of any damage to or destruction of the Hotel, the Site Improvements or the Improvements, or any part thereof, in excess of an amount equal to Two Hundred and Fifty Thousand Dollars ($250,000.00) escalated from the Commencement Date of this Lease in accordance with increases in the Consumer Price Index, Lessee shall within ten (10) days after Lessee becomes aware of such damage or destruction give written notice thereof to Lessor generally describing the nature and extent of such damage or destruction.
10.4.2 Restoration. Lessee shall be responsible for the restoration of the Hotel or other Improvements in accordance with the damage and destruction clauses of this Lease.
In case of any damage to or destruction of the Hotel, the Site Improvements or other Improvements, or any part thereof, Lessee shall commence the restoration, replacement, or rebuilding of the Improvements with such alterations and additions as may be approved by Lessor (such restoration, replacement, rebuilding, alterations, and additions, together with any temporary repairs and property protection pending completion of the work being herein called "Restoration") within thirty (30) days of such damage or destruction, plus any additional period reasonably required to obtain any Net Insurance Proceeds to be used to pay all or a portion of the cost of such Restoration, and Lessee shall complete such Restoration within a reasonable period of time thereafter.
As used herein, the term "Net Insurance Proceeds" means the gross insurance proceeds paid by an insurer to Lessee for loss or damage to the Improvements on the Premises, Site and Improvements, less any and all costs and expenses (including, but not limited to reasonable attorneys' fees) incurred to recover said proceeds. Lessee agrees to promptly commence and prosecute to completion the settlement of insurance proceeds with respect to any event of damage or destruction of the Improvements on the Premises or the Site.
Lessee agrees that, notwithstanding any other provision of this Lease, upon any event of damage or destruction to the Improvements, Lessee shall at its sole cost and expense (whether or not Lessee terminates or intends to terminate this Lease pursuant to Section 10.6 below) immediately take or cause such work to be taken as is necessary to assure the safe condition of the damaged Improvements pending the ultimate disposition of 43 16-123 44
the Improvements. In any instance in which Lessee may elect to temminate this Lease rather than restore the Improvements pursuant to 10.6 below, if Lessee does not terminate this Lease, Lessee shall restore the Improvements.
10.5 Application of Insurance Proceeds. Net Insurance Proceeds shall be applied as follows:
(i) Within a reasonable time and in any event within 180 days after the damage to or destruction of the Hotel, the Site Improvements or other Improvements, Lessee shall furnish or cause to be furnished to Lessor and any Mortgagee evidence satisfactory to Lessor and the Mortgagee (a) of the total cost of Restoration of the damaged or destroyed Improvements pursuant to Section 10.4.2 and (b) that the total amount of money available will, when added to the insurance proceeds received and available to pay for the Restoration pursuant to the terms of this Section 10.5, be sufficient to pay the cost of such Restoration. (ii) Net insurance proceeds received on account of any damage to or destruction of the Improvements, or any part thereof, shall be paid to Lessee or as Lessee may direct (except that, during the term of any Mortgage, such net insurance proceeds shall be paid to the Mortgagee which holds the highest priority Mortgage, if required by such Mortgagee) from time to time as Restoration progresses, solely to pay (or reimburse Lessee for) the cost of, Restoration. Upon receipt by Lessor and any Mortgagee of evidence that Restoration has been completed and the cost thereof paid in full or has been adequately provided for, and that there are no mechanic's or similar liens for labor or materials supplied in connection therewith which have not been adequately provided for, the balance, if any, of such proceeds shall be paid to Lessee.
(iii) Any insurance proceeds held by the recipient on any termination of this Lease and not required to be paid to Lessor pursuant to the provisions of this Lease shall be paid first to the expenses of clearing the Premises and the Site of any rubble, and next to the Mortgagee as its interests may appear, and next to Lessee.
10.6 Damage or Destruction During Final Years of Lease Term.
Notwithstanding Sections 10.4 and 10.5 to the contrary, in the event of major damage or destruction to the Improvements on the Premises during the last ten (10) years of the Lease Term, Lessor shall not unreasonably withhold its approval if Lessee requests that this Lease be terminated on thirty (30) days' notice, provided Lessee first complies with all of the following conditions:
(i) Lessee shall give Lessor notice of the damage or destruction within ten (10) business days after the event causing such damage and destruction. (ii) Lessee shall give Lessor notice requesting that this Lease be terminated as a result of such damage or destruction within forty-five (45) days after settlement of insurance proceeds, but in any event within one hundred eighty (180) days 44 16-123 45
after the event causing such damage or destruction.
(iii) Lessee shall pay to Lessor all applicable Ground Rent and other charges that are Lessee's responsibility prorated to the date of such termination. (iv) Lessee shall clear and remove all debris from the Premises or the Site, restore the Premises to a safe and neat condition, deliver possession of the Premises to Lessor, and shall quitclaim all of Lessee's right, title, and interest in the Premises or the Site to Lessor.
(v) Lessee shall transfer to Lessor all insurance proceeds (except that, during the term of any Mortgage, such insurance proceeds shall be paid to the Mortgagee which holds the highest priority Mortgage, if required by such Mortgagee) resulting from the casualty to be retained by Lessor without limitation as to use.
Major damage or destruction to the Improvements as used in this Section 10.6 means such damage or destruction that the cost of Restoration will exceed fifty percent (50%) of the cost to replace the Improvements on the Premises or the Site in their entirety.
10.7 Faithful Performance and Labor and Material (Pavment) Bonds:
Indemnification; Non -responsibility Notices. Lessee agrees to indemnify, defend, and hold harmless Lessor from and against all claims, liabilities, costs, and expenses for labor and materials in connection with all construction, repairs, or alterations on the Premises or the Site and Improvements and the Improvements, including reasonable attorney's fees.
Lessee agrees to procure, or cause the procurement of, contractor's bonds covering labor, materials, and faithful performance for all construction work on the public right of ways in accordance with the following requirements:
(i) As to the initial construction work on any public right of ways required by this Lease, such bonds shall be in an amount equal to one hundred percent (100%) of the cost of the Improvements on such public right of ways, as the same may be amended from time to time.
(ii) As to subsequent work involving repair, alteration, or replacement of the work on any public right of way in an aggregate amount exceeding $250,000 plus escalations to such amount after the Lease Effective Date in accordance with the Consumer Price Index, such bonds shall be in the amount equal to one hundred percent (100%) of the construction price in the contract entered into by Lessee and its general contractor. Subsequent work in an aggregate amount of $250,000 (plus escalations to such amount after the Lease Effective Date in accordance with the Consumer Price Index) or less shall not be subject to bonding requirements.
Said bonds and the construction contract must first be approved in writing as to content and form by Lessor. Lessee shall, prior to commencement of construction, deliver to Lessor a 45 16-123 46
certificate or certificates from the bonding company or companies issuing the aforesaid bonds, naming Lessor as additional insureds under said bonds.
Lessor shall have the right to post and maintain on the Premises, the Site and the Improvements any notices of non -responsibility provided for under applicable law.
15. Article 11. Sections 11.1.1 and 11.7 of Article 11 (Assignment, Subletting, Transfer) shall be amended to read as follows:
ARTICLE 11
ASSIGNMENT, SUBLETTING, TRANSFER
11.1 Restrictions on Lessee's Riaht to Transfer.
11.1.1 Lessee represents and warrants that this Lease, the construction of the Improvements, and Lessee's other undertakings pursuant hereto are and will be used for the purpose of redevelopment of the Premises and the Site and not for speculation in land holding.
Lessee further recognizes that (i) the qualifications and identity of Lessee and its principals are of particular concern to the community and Lessor; (ii) it is because of such qualifications and identity that Lessor is entering into this Lease with Lessee; (iii) the timely redevelopment of the Premises and the Site is important to the general welfare of the community; (iv) the anticipated tax and Ground Rent income to be generated by this Lease and the reduction and elimination of Lessor's holding costs for the Premises and the Site are important financial/economic reasons for Lessor wishing to ensure the timely redevelopment of the Premises and the Site; (v) Lessor does not intend to allow Lessee to acquire leasehold rights in the Premises and the Site and then simply hold such rights or the Premises and the Site for purposes of speculation; and (vi) a change in ownership or Control of Lessee, or any other act or transaction involving or resulting in a direct or indirect change in the ownership or Control of Lessee is for practical purposes a transfer or disposition of Lessee's leasehold rights and interest hereunder. Accordingly, from the Agreement Date of the Second Amendment through the entire Lease Term, Lessee shall be subject to the restrictions on its Transfer rights set forth herein.
11.7 Sale of Property. Any sale of the Premises or the Site by the Lessor during the Lease Term shall be compliance with the Surplus Land Act.
16. Article 12. Sections 12.1 and 12.2 of Article 12 (Mortgages) shall be amended to read as follows:
ARTICLE 12
MORTGAGES
12.1 Leasehold Mortgages.
12.1.1 From time to time during the Lease Term of this Lease, Lessee shall have the right to mortgage, pledge, deed in trust, assign rents, issues and profits (for purposes of security if required by any lender), enter into capitalized leases or other financing mechanisms in 46 16-123 47
connection with the acquisition of furniture, fixtures and equipment for the Hotel, the Site Improvements and other Improvements, or otherwise encumber the interest of Lessee under this Lease, in whole or in part, and any interests or rights appurtenant to this Lease, and to assign or pledge the same as security for any debt (the holder of any such mortgage, pledge or other encumbrance, and the beneficiary of any such deed of trust being hereafter referred to as "Mortgagee" and the mortgage, pledge, deed of trust or other instrument hereafter referred to as "Mortgage"), upon and subject to each and all of the following terms and conditions:
(i) Lessee shall not make or enter into an agreement to make any Mortgage without the prior written approval of Lessor's City Manager or his or her designee. Upon Lessee's request for approval of a proposed Mortgage and Lessee's submission to Lessor of such information concerning the proposed Mortgage as Lessor may reasonably request, Lessor's City Manager or designee shall not unreasonably delay its approval or disapproval of the proposed Mortgage and, in any event, shall approve or disapprove the proposed Mortgage within ten (10) business days. The City Manager or his or her designee shall be authorized to approve minor non - substantive changes to this Article 12 that do not materially jeopardize or impair Lessor's rights hereunder as reasonably requested by a proposed Mortgagee; provided, that the City Manager or designee shall be entitled to withhold consent to any such proposed changes in his or her reasonable discretion.
(ii) The Mortgagee shall be an Institutional Lender or, if not, such other lender that Lessor may approve in its reasonable discretion. (iii) The Mortgage shall cover no interest in any real property other than Lessee's interest in the Premises, the Site, the Hotel, the Site Improvements and other Improvements or some portion thereof, and the leasehold estate of Lessee under this Lease.
The Mortgage shall be fully subordinate to Lessor's fee title in and to the Premises or the Site and all of Lessor's rights set forth in this Lease and shall state on its face that it does not encumber in any way Lessor's fee interest in the Premises or Site or Lessor's rights set forth in this Lease.
(iv) Mortgages may be made on the Premises and Site for the purposes of financing necessary and appropriate to pay Project Costs for construction of the Hotel including the Bungalows. Additionally, prior to completion of construction of the Site Improvements and the opening of the Bungalows for business to the general public, Mortgages may be made for the purposes of financing necessary for the Hotel and to pay Project Costs for the Bungalows and Site Improvements.
(v) The total amount of all construction loans secured by Mortgages recorded against the Premises and/or the Site shall not exceed seventy-five percent (75%) of the estimated Project Costs, as said estimate may be revised from time to time. Notwithstanding the foregoing, prior to completion of construction of the Site Improvements and opening of the Bungalows, the total amount of all loans secured by Mortgages recorded against the Premises and Site shall not exceed seventy-five percent (75%) of the fair market value of the Hotel, as said value is determined as of the financing thereof.
47 16-123 48
(vi) Subsequent to completion of construction of the Hotel and/or Bungalows and opening the Hotel for business to the general public, the total amount of all loans secured by Mortgages recorded against the Premises shall not exceed seventy-five percent (75%) of the fair market value of Lessee's leasehold interest in the Premises, as determined by a licensed California appraiser retained at Lessee's sole cost and expense who is a member of the Appraisal Institute and who has a minimum of ten (10) years' experience appraising hotel properties comparable to the Hotel and Improvements to be developed on the Premises, with the City Manager or his or her designee having the right of reasonable approval or disapproval of the appraisal; provided, however, that Lessee shall not be deemed to be in Default of this Section 12.1.1(vi) if a loan or loans secured by Mortgages recorded prior to completion of construction of the Hotel in compliance with Section 12.1.1(v), including any amendment(s) or extension(s) of such loan(s) that do(es) not increase the total outstanding principal balance of such loan(s) and whether or not such amendment(s) or extension(s) occur(s) prior or subsequent to completion of construction of the Hotel and the opening of the Hotel for business to the general public, exceed(s) seventy-five percent of the fair market value of Lessee's leasehold interest in the Premises. In addition, it is understood and agreed that the loan -to -value ratio constraint in this Section 12.1.1(vi) shall be made only at the time Lessor is determining whether to approve or disapprove the proposed Mortgage and thereafter this Section 12.1.1(vi) shall not limit, restrict, invalidate, or result in the disapproval of any such Mortgage or any amendment or extension of any such Mortgage that does not increase the total outstanding principal balance of the loan secured by such Mortgage if the fair market value of Lessee's leasehold interest in the Premises that was relied upon by Lessor in approving the Mortgage declines.
12.1.2 All rights acquired by a Mortgagee under a Mortgage shall be subject to each and all of the covenants, conditions, and restrictions set forth in this Lease, and to all rights of Lessor hereunder, none of which covenants, conditions, and restrictions is or shall be waived by Lessor by reason of the giving of such Mortgage, except as expressly provided in this Article
12. Notwithstanding the foreclosure of any such Mortgage, Lessee shall remain liable for the payment of the accrued but unpaid rent reserved in this Lease while Lessee remains in possession of the Premises, the Site, Site Improvements and Improvements.
12.2 Rights and Oblifzations of Leasehold Mortizaizees. If Lessee, or Lessee's successors or assigns, shall mortgage the leasehold interest herein demised, then, as long as any such Mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) If the holder of any Mortgage on the leasehold interest herein demised shall register with Lessor its name and address in writing, no notice of default by Lessor to Lessee shall be deemed to have been duly given unless and until a copy thereof has been mailed to the Mortgagee in accordance with the notice provisions set forth in this Lease at the address registered with Lessor.
(ii) In the event Lessee shall be in Default hereunder, the Mortgagee shall, at any time prior to the termination of this Lease (which termination can occur only after notice to the Mortgagee and an opportunity to cure in accordance with this Article 12) and without payment of any penalty, have the right, but not the obligation, to pay all of the rents due hereunder, to effect any insurance, to pay any taxes and assessments (subject to Lessor's right 48 16-123 49
to cure under Section 9.4 of this Lease), to make any repairs and improvements, to do any other act or thing required or permitted of Lessee hereunder, and to do any other thing which may be necessary and proper to be done in the performance and observation of the agreements, covenants, and conditions hereof to prevent termination of this Lease. All payments so made and all things so done and perfommed by such Mortgagee shall be accepted by Lessor and shall be effective to prevent a termination of this Lease as the same would have been if made, done, and performed by Lessee instead of such Mortgagee. Lessee hereby constitutes and appoints the Mortgagee as Lessee's agent and attorney in fact with full power coupled with an interest, in Lessee's name, place, and stead, and at Lessee's cost and expense, to enter upon the Premises, the Site, Site Improvements, and Improvements and the Improvements, and perform all acts required to be performed herein. No Mortgagee shall have the right to take or perform any action hereunder, under its leasehold Mortgage, or otherwise which might result in any detriment to the rights of a prior leasehold Mortgagee with respect to the same lease or leasehold Premises.
(iii) While any such Mortgage remains unsatisfied of record, and an event or events shall occur which shall entitle Lessor to terminate this Lease, Lessor shall forbear from terminating this Lease if and to the extent that such forbearance is required under Section 12.4 of this Lease or Mortgage documents.
(iv) If the holder of a Mortgage obtained in accordance with Section 12.1 of this Lease acquires the leasehold estate created hereunder or otherwise acquires possession of the Premises, the Site, Site Improvements and Improvements pursuant to available legal remedies, Lessor will look to such holder to perform the obligations of Lessee only from and after the date of foreclosure or possession and will not hold such holder responsible for the past actions or inactions of the prior Lessee. Notwithstanding the foregoing, (a) on and after the date of such foreclosure or possession, such holder shall be required to perform and abide by each and all of the obligations of Lessee under this Lease and (b) on and after the date of such foreclosure or possession, Lessor shall have the right to enforce each and all of the provisions of this Lease against such holder. Nothing herein is intended or shall be construed to limit or restrict Lessor's rights and remedies against any prior Lessee, provided that Lessor's pursuit of such remedies shall not affect the rights of the holder of any Mortgage obtained in accordance with Section 12.1 of this Lease to the use, enjoyment, or operation of the Premises, the Site, Site Improvements and Improvements
(v) The foreclosure of a Mortgage obtained in accordance with Section 12.1 of this Lease, or any sale thereunder, whether by judicial proceedings or by virtue of any power of sale contained in such Mortgage, or any conveyance of the leasehold estate created hereby from Lessee to the holder of any such Mortgage through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof shall not require the consent or approval of Lessor or constitute a Default under this Lease, and upon such foreclosure, sale, or conveyance Lessor shall recognize the Mortgagee, or any other foreclosure sale purchaser, as the new Lessee hereunder. In the event that such Mortgagee becomes the Lessee hereunder, or in the event that the leasehold estate created hereunder is purchased by any other party at a foreclosure sale or by any other lawful means, such Mortgagee, or such other foreclosure sale purchaser, shall be responsible for performance of the obligations of Lessee under this Lease only for the period of 49 16-123 50
time that the Mortgagee or such other foreclosure sale purchaser remains Lessee hereunder, and such Mortgagee or foreclosure sale purchaser shall thereafter have the right to assign this Lease without need to obtain the approval of Lessor; provided, however, that any subsequent assignment of this Lease shall be subject to the provisions of Article 11 of this Lease, including, to the extent set forth therein, Lessor's right of approval of a Transfer. Notwithstanding anything to the contrary herein: (a) as a precondition to any Mortgagee, foreclosure sale purchaser, or other person obtaining the rights of Lessee hereunder, such person shall first be required to expressly assume each and all of the obligations of Lessee under this Lease pursuant to a written document in form and substance reasonably satisfactory to Lessor; (b) such new Lessee shall have no right to construct any Improvements on the Premises unless and until such new Lessee has submitted evidence reasonably satisfactory to Lessor that such new Lessee has the financial capability and overall competence to perform the obligations of Lessee hereunder, provided that this clause (b) shall not require submission of such evidence if such new Lessee is the holder of a Mortgage obtained in accordance with Section 12.1 of this Lease but shall require submission of such evidence if such new Lessee is the successor of such a holder; and (c) Lessor shall have the
right of prior written approval over any prospective operator or manager (including but not limited to such new Lessee) of the Hotel uses on the Premises and Improvements and any prospective hotel franchisor, in accordance with Sections 7.2-7.4 of this Lease. (vi) In the event that the holder of any Mortgage obtained in accordance with Section 12.1 of this Lease remedies or causes to be remedied, within the times specified herein, all monetary Defaults of Lessee and all nonmonetary Defaults of Lessee which by their nature are capable of being remedied by such Mortgagee, such Mortgagee shall have the right within thirty (30) days after all such Defaults are remedied to request that Lessor promptly execute and deliver to such Mortgagee a new lease of the Premises (naming such Mortgagee as Lessee) for the remainder of the Lease Term with the same agreements, covenants, and conditions (except for any requirements which have been fulfilled prior to execution of the Lease) as are contained herein and with priority equal to that hereof, along with a Quitclaim Deed first approved in writing by Lessor as to foml and substance; provided, however, that if more than one Mortgagee requests such a new lease, the Mortgagee holding the most senior Mortgage shall prevail; and provided, further, that Lessor shall not be required to execute such new lease earlier than concurrently with the execution of such new lease by such Mortgagee. Lessor shall prepare such new lease at the expense of such Mortgagee, and all costs incurred by Lessor in preparing such new lease (including attorneys' fees) shall be paid to Lessor by such Mortgagee prior to the execution by Lessor of such new lease. The execution of a new lease by Lessor pursuant to this subparagraph (vi) shall automatically and immediately terminate this Lease. Although not necessary to effect the termination of this Lease, the former Lessee shall, upon Lessor's execution of such new lease, execute any documents and perform any acts which may be reasonably necessary to evidence the termination of this Lease. Upon Lessor's execution and delivery of such new lease, Lessor, at the expense of the new Lessee, shall take such action as shall be necessary to remove the former Lessee from the Premises and Improvements. Notwithstanding any provision herein, Lessor shall not be required to 50 16-123 51
forbear from terminating this Lease except to the extent required by Section 12.4 hereof and the Mortgage documents and Lessor shall not be required to execute a new lease after the termination of this Lease in accordance with the provisions hereof. (vii) Anything herein contained to the contrary notwithstanding, the provisions of this Section 12.2 shall inure only to the benefit of the holders of Mortgages and such other persons that acquire the leasehold interest created hereunder pursuant to a foreclosure, sale, or conveyance of the type described in this Section 12.2.
17. Article 13. Section 13.1 of Article 13 (Indemnification and Insurance) shall be amended to read as follows:
ARTICLE 13
INDEMNIFICATION AND INSURANCE
13.1 Indemnification. To the maximum extent permitted by law and except as hereinafter expressly limited, from and after the Agreement Date of the Second Amendment Lessee agrees to and shall defend, indemnify, and hold harmless Lessor and Lessor's officials, officers, employees, agents, contractors, and consultants from and against all claims, liability, loss, damage, costs, and expenses (including investigation costs, reasonable attorneys' fees, and court costs) arising from or as a result of the death or injury of any person, property damage, economic loss, penalties, fines, and other damages of any kind whatever which is directly or indirectly caused by or based on (or alleged to be caused by or based on) Lessor's ownership of or interest in the Premises or Site or any portion thereof or any improvements thereon, the condition of the Premises or Site or any portion thereof or any Improvements or Site Improvements thereon, Lessee's entry onto or occupancy of the Premises or Site, Lessee's acts or omissions with respect to the development, construction, use, maintenance, operation, and repair of the Premises, Site or any portion thereof or any Improvements or Site Improvements thereon, and any of Lessee's activities under this Lease, First Amendment, or Second Amendment, whether such actions or inactions be prior to or after the Commencement Date, whether such actions or inactions be by Lessee or anyone directly or indirectly employed or contracted with by Lessee, and whether such damage or injury shall accrue or be discovered before or after the termination of this Lease. Notwithstanding the foregoing, Lessee shall not be responsible for (and such indemnity shall not apply to) property damage or bodily injury caused by Lessor's entry onto the Premises, Site, Site Improvements and Improvements pursuant to various provisions of this Lease, and/or to the extent such damage or injury is caused by the willful misconduct or active negligence of Lessor or its designated employees or agents. Each Party shall promptly provide notice to the other Party of any actual or threatened claim that gives rise or may give rise to the indemnity obligations set forth herein and thereafter the Parties agree to cooperate in the defense of any such claim.
13.2 Indemnification From Third Party Challenges to Lease and/or Development Entitlements. In addition to the provisions set forth in Section 13.1, in the event of any legal or administrative action or proceeding instituted by a third party including, but not limited to, any federal or state agency (not a Party to this Lease) alleging that there has been a violation of state or federal law or that challenges the validity or enforceability of (i) this Lease including the First Amendment and Second Amendment, or any provision of this Lease including the First 51 16-123 52
Amendment and Second Amendment, (ii) any action by either Lessor or Lessee pursuant to this Lease, the First Amendment, or the Second Amendment, including without limitation any consent or approval issued by Lessor pursuant hereto, or (iii) any Development Entitlement or other permit or approval approved or issued by Lessor (in its regulatory capacity) or any other governmental agency with jurisdiction over the Premises, Site, the Hotel and the Bungalows, the Parties hereby agree to cooperate in defending said action; provided, however, Lessee shall indemnify, defend (by counsel reasonably acceptable to Lessor), and hold harmless Lessor and Lessor's officials, officers, employees, agents, contractors, and consultants from and against all claims, liabilities, and losses, including without limitation all litigation expenses (including investigation costs, reasonable attorneys' fees, and court costs), as well as any fines, and penalties arising therefrom. In the event that such action involves mediation, arbitration, or any other means of alternative dispute resolution, the provisions of this Section 13.2 shall apply equally thereto. Lessor shall have the right to appoint and designate independent counsel to represent Lessor and/or any of Lessor's officials, officers, employees, agents, contractors, and consultants named as parties in any such third party action, as reasonably determined to be necessary and appropriate by Lessor, at Lessee's expense; provided, that in such event Lessor shall instruct its independent counsel to cooperate with counsel retained by Lessee to defend the same persons and entities in order to avoid unnecessary duplication of expense. Upon being served with process in any such legal action, the Party so served shall promptly notify the other Party to this Lease. Lessee shall have the right to settle or compromise any such action; provided, however, that no such settlement or compromise shall terminate, modify, alter, or amend any of Lessor's rights or obligations set forth in this Lease or with respect to any of the Development Entitlements or permits or approvals issued or approved by any governmental agency with respect to the Premises without compliance with any applicable legal procedures and requirements and without Lessor's prior written consent, which consent Lessor may withhold in its sole and absolute discretion.
18. Article 16. Article 16 (General Provisions) shall be amended to read as follows:
ARTICLE 16
GENERAL PROVISIONS
16.1 Notices, Demands, and Communications between the Parties. Formal notices, demands, and communications between Lessor and Lessee shall be sufficiently given if personally delivered, delivered by reputable overnight delivery service providing a receipt confirming delivery, or delivered by registered or certified mail, postage prepaid, return receipt requested, to the following addresses:
City: City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attention: City Manager
With copies to: City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
52 16-123 53
Attention: City Attorney
and City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attention: Community Development Department -
Real Estate Manager
If to Lessee: Olson Real Estate Group, Inc.
Attn: Robert D. Olson
520 Newport Center Drive
Suite 600
Newport Beach, CA 92660
With a copy to: Scott S. Pollard, Esq.
Attorney at Law
2804 Cliff Drive
Newport Beach, CA 92663
Such written notices, demands, and communications may be sent in the same manner to such other addresses as either Party may from time to time designate by delivery of written notice of change of address in the same manner as provided in this Section. Notices shall be deemed delivered upon receipt for purposes of calculating all times for performance and all Cure Periods provided for herein.
16.2 Time of Essence. Time is of the essence with respect to the performance of each of the covenants and agreements contained in this Lease.
16.3 Conflict of Interests.
16.3.1 No official, officer, or employee of Lessor who participates in the making of this Lease or in the implementation or enforcement of this Lease by or on behalf of Lessor shall have any personal financial interest, direct or indirect, in this Lease.
16.3.2 Lessee represents and warrants to Lessor that neither Lessee nor any official, officer, employee, consultant, or agent of Lessee has paid or given any official, officer, employee, consultant, or agent of Lessor any money or other consideration for obtaining this Lease.
16.4 Non -Liability of Lessor Officials and Employees. No official, officer, employee, consultant or agent of Lessor shall be personally liable to Lessee, or any successor in interest of Lessee, in the event of any Default by Lessor or any for any amount which may become due to Lessee or successor of Lessee with respect to the negotiation, execution, implementation, or performance of this Lease.
16.5 Inspection of Books and Records. Lessor has the right at all reasonable 53 16-123 54
times to inspect the books and records of Lessee pertaining to the Premises, Site, Site Improvements, and Improvements as pertinent to the purposes of this Lease. Lessee shall maintain such books and records in Orange County, California, or shall make such books and records available for inspection in Orange County, California, during normal business hours on not less than two (2) business days' notice from Lessor. Lessee also has the right at all reasonable times to inspect the books and records of Lessor pertaining to the Premises, Site, Site Improvements, and Improvements as pertinent to the purposes of this Lease.
16.6 No Partnership. Nothing in this Lease and no acts of Lessor or Lessee are intended or shall be deemed or construed by any person to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association between Lessor and Lessee.
16.7 Compliance with Law. Lessee agrees, at its sole cost and expense, to comply and secure compliance with all the applicable and valid requirements now in force, or which may hereafter be in force, of all municipal, county, State, and federal authorities, pertaining to the Premises and Improvements, as well as operations conducted thereon, and to faithfully observe and secure compliance with, in the use of the Premises, Site, Site Improvements, and Improvements, all applicable municipal, county, State and federal statutes, ordinances, regulations, and official rules and policies now in force or which may hereafter be in force, including all laws prohibiting discrimination or segregation in the use, sale, lease, or occupancy of the Premises or Site.
16.8 Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, sexual orientation or identity, marital status, race, color, creed, religion, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Premises, Site, Site Improvements, and Improvements, and Lessee itself or any person claiming under or through it shall not establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of subtenants, sublessees, or vendees of the Premises, Site, Site Improvements, and Improvements.
16.9 Lessor's Reservation of Police Power Authority. Lessee acknowledges that Lessor is approving and entering into this Lease in its proprietary capacity as fee owner of the Premises and/or Site only, that Lessor, as a municipality, also has governmental and regulatory authority over the Premises and/or Site, and that, notwithstanding any other provision set forth in this Lease to the contrary, nothing in this Lease is intended or shall be deemed to limit or restrict in any respect Lessor's exercise of its governmental and regulatory authority over the Premises and/or Site, the construction that occurs on or about the Premises and/or Site, or the maintenance and use of the Premises and/or Site, nor is anything in this Lease intended to constitute a prejudgment or commitment by Lessor as to how it will exercise its governmental and police power regulatory authority with respect to any such matters. In no event shall Lessor be in Default of its obligations set forth in this 54 16-123 55
Lease if it takes or fails to take an action when acting in its governmental or regulatory capacity. Notwithstanding the foregoing, nothing in this Lease is intended or shall be construed as a waiver of any right or remedy Lessee would have in the absence of this Lease with respect to any alleged act or omission of Lessor when acting in its governmental or regulatory capacity.
16.10 Applicable Law. The internal laws of the State of California shall govern the interpretation and enforcement of this Lease, without regard to conflict of law principles.
16.11 Severability. If any provision of this Lease shall be adjudged invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Lease shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
16.12 Binding Effect. This Lease, and the terms, provisions, promises, covenants, and conditions set forth herein shall be binding upon and shall inure to the benefit of the Parties hereto and their respective and permitted heirs, legal representatives, successors, and assigns.
16.13 No Third -Party Beneficiaries. Except to the limited extent set forth in Article 12 and any other provisions of this Lease specifying rights of permitted Mortgagees, this Lease is intended to be for the benefit of only the Parties hereto and their respective permitted successors and assigns and this Lease is not intended to create any third -party beneficiaries. Not by way of limitation of the foregoing, by entering into and administering and enforcing this Lease Lessor does not intend to protect any third party against the risk of any particular kind of injury within the meaning of California Government Code Section 815.6 and Lessor does not intend to create any rights or liabilities thereunder.
16.14 Captions and Section Headings. The captions and section headings contained in this Lease are merely a reference and are not to be used to construe or limit the text.
16.15 No Recording of this Lease. This Lease shall not be recorded.
16.16 Events of Force Majeure: Extensions of Times of Performance. In addition to specific provisions of this Lease, performance by either Party hereunder shall not be deemed to be in Default where delays or defaults are due to causes beyond the control and without the fault of the Party claiming an extension of time to perform, including war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualty losses, supernatural causes, acts of the public enemy, epidemics, quarantine restrictions, declared state of emergency (federal, state, or local), freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor or supplier, and unanticipated and unreasonable failures to timely act by any governmental agency acting 55 16-123 56
in its regulatory capacity (each, individually, an "Event of Force Majeure" and, collectively, "Events of Force Majeure"). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. A Parry claiming an extension of time to perform a covenant or satisfy a condition set forth in this Lease due to an Event of Force Majeure shall promptly, and in no event more than sixty (60) days after the commencement of any Event of Force Majeure that delays its performance of a covenant or satisfaction of a condition set forth in this Lease, notify the other Party in writing of the Event of Force Majeure, such Parry shall continue with commercially reasonable diligence in an effort to limit the period of the delay, and the period of the delay shall be limited accordingly. If, however, notice by the Party claiming such extension is sent to the other Party more than sixty (60) days after the commencement of the cause, the period of the enforced delay shall commence to run only sixty (60) days prior to the giving of such notice. Times of performance under this Lease may also be extended in writing by Lessor and Lessee. In no event, however, shall an Event or Events of Force Majeure extend the Commencement Date beyond the Outside Commencement Date without Lessor's and Lessee's written approval, which approval either Lessor or Lessee may withhold in its sole and absolute discretion.
16.17 Entire Agreement, Waivers, and Amendments. This Lease constitutes the entire agreement between Lessor and Lessee with respect to the subject matter addressed herein and supersedes all prior discussions, negotiations, and agreements between the Parties with respect thereto.
All waivers of the provisions of this Lease must be in writing and signed by the appropriate authorities of the Party or Parties to be charged and all amendments hereto must be in writing and signed by the appropriate authorities of both Lessor and Lessee.
Lessor and Lessee shall each have the right to disapprove waivers of and amendments to this Lease in their sole and absolute discretion. During the term of any Mortgage obtained in accordance with Article 12 of this Lease, any amendment to this Lease additionally shall require the written approval of the Mortgagee.
16.18 Attornment. In the event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure, or in the event of exercise of the power of sale under, any mortgage and/or deed of trust made by Lessor covering the Premises and/or Site, or in the event Lessor sells, conveys, or otherwise transfers its leased fee interest in the Premises and/or Site, Lessee hereby agrees to attorn to the new owner, and Lessee further covenants and agrees to execute an instrument in writing reasonably satisfactory to the new owner whereby Lessee attorns to the successor in interest and recognize the successor as the Lessor under this Lease.
16.19 Subordination. Lessee agrees that this Lease shall be subordinate to any mortgages or deeds of trust that may hereafter be placed upon the fee of the Premises and/or Site by Lessor and to any and all advances to be made thereunder, and to the interest thereon, and all renewals, replacements, and extensions thereof, provided that the mortgagees 56 16-123 57
or beneficiaries named in said mortgages or trust deeds shall execute and deliver a written non -disturbance and recognition agreement by and among Lessee, Lessor, and such mortgagees or beneficiaries, in form reasonably satisfactory to Lessee and its counsel and the holder of any Mortgage and their counsel, which shall provide the following assurances for the benefit of Lessee, Mortgagee, and their permitted assignees, sublessees, successors, and assigns:
(i) The leasehold estate granted by this Lease shall not be affected in any manner by any foreclosure action, trustee's sale, or other action taken or proceeding commenced under or in connection with any mortgages or deeds of trust placed upon the fee of the Premises and/or Site by Lessor, or by any taking of possession of the Premises and/or Site pursuant thereto, or by the exercise of any rights or remedies in connection therewith;
(ii) if the interest of Lessor under this Lease is transferred in connection with any foreclosure action, trustee's sale, or other proceedings brought under any mortgages or deeds of trust placed upon the fee of the Premises and/or Site by Lessor (including, without limitation, any transfer by deed in lieu of foreclosure), then, so long as Lessee is not in Default in the performance of the terms, covenants, and conditions of this Lease beyond all applicable notice, grace, and Cure Periods, the transferee of any such interest of Lessor (including, without limitation, the holder of any such mortgage or deed of trust), together with its successors and assigns (collectively, "Lessor's Transferee"), shall not terminate this Lease or interfere with or disturb Lessee in its possession, use, occupancy, and quiet enjoyment of the Premises or Site under this Lease, for the remaining term of this Lease (as the same may be earlier terminated pursuant to any other Article of this Lease), subject to all of the terms, covenants, and conditions of this Lease;
(iii) Lessee shall not be named or joined in any foreclosure action, trustee's sale, or other proceeding to enforce any mortgages or deeds of trust placed upon the fee of the Premises and/or Site by Lessor; and
(iv) any Lessor's Transferee will accept the attornment of Lessee and will assume and perform all of Lessor's obligations under the Lease for the benefit of Lessee and its successors and assigns.
The foregoing written assurances shall, at Lessee's request, also be provided to any permitted Transferee of Lessee under this Lease. Lessee also agrees that in the event Lessor and any mortgagee or beneficiary elect to have this Lease prior to such mortgage or deed of trust, and upon notification by Lessor or such mortgagee or beneficiary to Lessee to that effect, this Lease shall be deemed prior in lien to such mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust.
Lessee agrees that upon the request of Lessor, or any mortgagee or beneficiary, Lessee shall execute whatever instruments may be required to carry out the intent of this Section
16.19. 57
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16.20 Approvals. Except to the extent that this Lease authorizes a Parry to withhold its approval or consent to a specified request by the other Party in its sole and absolute discretion, approvals and consents required of Lessor and Lessee shall not be unreasonably withheld, conditioned, or delayed.
The City Manager or his or her designee shall have the authority to implement and enforce this Lease on behalf of Lessor; provided, however, that (i) in no event shall the City Manager (or designee) have the authority, without City Council approval or express delegation of authority, to approve substantive amendments to this Lease that materially increase Lessor's obligations or materially impair or jeopardize its rights hereunder; (ii) in no event shall the City Manager (or designee) have the authority, without City Council approval or express delegation of authority, to approve waivers that materially impair or jeopardize Lessor's rights hereunder; (iii) the City Manager (or designee) shall have the right, even if he or she has the authority to act hereunder without seeking City Council approval, to seek such approval, and in such event Lessor shall not be deemed to be in Default hereunder; and (iv) the City Attorney's approval shall also be required with respect to (A) the form and content of any agreement, estoppel certificate, or other document approved by the City Manager or his or her designee, (B) whether the City Manager's and/or his/her designee's approval is consistent with the terms and conditions set forth in this Lease, including without limitation the provisions of clauses (i) and (ii) above, and (C) whether the City Manager and/or his/her designee has the authority under this Lease and applicable law to grant or provide such approval.
In the event that Lessee requests Lessor approval of any matter pertaining to this Lease, including without limitation approval of Lessee's Evidence of Financial Capability, any of Lessee's development or building plans or permits, Transfer of Lessee's interest, Transfer to a Mortgagee, and execution of an estoppel certificate, as a condition to Lessor's taking such action, and without regard to whether Lessor's final action is to approve, conditionally approve, or deny such request, Lessee shall pay or reimburse Lessor for all of Lessor's actual and reasonable costs and expenses in conjunction therewith, including without limitation the payroll costs of Lessor's in-house staff and reasonable consultant fees incurred with respect thereto.
This obligation of Lessee shall survive the termination or expiration of this Lease.
16.21 Lessee's Representations and Warranties. As a material inducement to Lessor to enter into this Lease, Lessee represents and warrants the following: (i) Lessee is a corporation organized, validly existing, and in good standing under the laws of the State of California; (ii) Lessee has all necessary power and authority to enter into this Lease and to carry out the transactions and obligations contemplated herein; (iii) the execution and delivery of this Lease and the performance by Lessee of its obligations hereunder will not violate or constitute an event of default under the terms and provisions of any agreement, ordinance, regulation, law, or court order to which Lessee is a party or by which Lessee is bound; (iv) all actions required to be taken by or on behalf of Lessee to authorize it to execute, deliver, and perform its obligations set forth in this Lease have been taken; (v) the person(s) executing this Lease on behalf of Lessee have full power and authority to bind Lessee to the terms hereof; and (vi) this Lease is a valid and binding obligation of Lessee enforceable in accordance with its terms, except as the same may 58 16-123 59
be affected by bankruptcy, insolvency, moratorium, or similar laws, or by legal or equitable principles relating to or limiting the rights of contracting parties generally.
16.22 Lessor's Representations and Warranties. As a material inducement to Lessee to enter into this Lease, Lessor represents and warrants the following: (i) Lessor is a municipal corporation duly organized, validly existing, and in good standing under the laws of the State of California; (ii) the execution and delivery of this Lease and the performance by Lessor of its obligations hereunder will not violate or constitute an event of default under the terms and provisions of any agreement to which Lessor is a party or by which Lessor is bound; (iii) all actions required to be taken by or on behalf of Lessor to authorize it to execute and deliver this Lease have been taken; and (iv) the person(s) executing this Lease on behalf of Lessor have full power and authority to do so.
16.23 No Liability for Broker's Commissions or Finder's Fees. Each Party represents and warrants to the other Party that it has not entered into any agreement or incurred any obligation which might result in the obligation to pay a brokerage commission or finder's fee with respect to this transaction. Each Party agrees to indemnify, defend, and hold harmless the other Party from and against any and all claims, liabilities, and losses, including attorney's fees, which the other Party may incur as the result of any claim made by any person or entity to a right to a brokerage commission or finder's fee in connection with this transaction to the extent such claim is based, or purportedly based, on the acts or omissions of the indemnifying Party.
16.24 Counterparts. This Lease may be executed in counterparts and when so executed, each such counterpart will constitute an original document and such counterparts will constitute one and the same agreement.
16.25 Estoppel Certificates. Within fifteen (15) days after each request therefor by either Party, the other Party agrees to deliver a certificate to any person designated by the requesting Party (including a proposed Mortgagee or purchaser), or to the requesting Party, certifying (if such be the case) that this Lease is in full force and effect, that to the best of such Party's knowledge at that time, there are no Events of Default by Lessee hereunder or any defaults by Lessor hereunder and that no events have occurred which, with the giving of notice or the passage of time or both, would constitute an Event or Default with respect to Lessee or a default with respect to Lessor hereunder, or stating those claimed by the responding Party, and that to the best of such Party's knowledge, there are no defenses or off -sets in favor of either Party hereto, or stating those claimed by the responding Party, and/or certifying whether any consent or approval required under this Lease has been denied or granted by the responding Party and whether any specified rights have been waived or deemed waived or expired. Any such certificate shall also contain a warranty that the person signing has the authority to execute the certificate on behalf of such Party. Each such estoppel certificate shall identify the Lease and all amendments, shall specify the date to which Base Rent and Percentage Rent have been paid, and shall specify the then applicable Base Rent payable hereunder. Nothing in this Section
16.25 shall be construed as reducing the period of time that either Party has under the terms of this Lease to respond to a request by the other Party for a consent or an approval.
16.26 No Attorney's Fees. In any action between the Parties hereto seeking 59 16-123 60
enforcement of any of the terms and provisions of this Lease and/or Second Amendment, or in connection with the Premises and Site, the prevailing Party in such action shall not be entitled to have and to recover from the other Party its reasonable attorneys' fees and other expenses and costs in connection with such action or proceeding.
16.27 Integrated Agreement. Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Lease shall remain unchanged and shall be in full force and effect.
[Signatures on the following page]
60 16-123 61
IN WITNESS WHEREOF, the parties have caused this Second Amendment to Lease to be executed as of the day and year first above written.
LESSOR:
CITY OF NEWPORT BEACH, a
APPROVED AS TO FORM: California municipal corporation and charter CITY ATTORNEY'S OFFICE city
By: By:
Name: Aaron C. Harp Name: Grace K. Leung
Title: City Attorney Title: City Manager
Date: Date:
ATTEST:
LI-A
Name: Leilani L Brown
Title: City Clerk
Date:
LESSEE:
LIDO HOUSE, LLC., a California limited
liability company,
By: Olson Real Estate Group, Inc., a
California corporation, Manager
R-A
Name: Robert D. Olson
Title: President
Date:
Exhibit "A-l" LEGAL DESCRIPTION OF PREMISES AND SITE
Exhibit "A-2" DEPICTION OF PREMISES AND SITE
Exhibit "A-3" DEPICTION OF PUBLIC PARKING AREA
Exhibit "B" SCHEDULE OF PERFORMANCE FOR SECOND AMENDMENT Exhibit "C" FORM OF AMENDMENT TO MEMORANDUM OF LEASE
61 16-123 62
Exhibit "A-1"
LEGAL DESCRIPTION OF PREMISES AND SITE
[To be inserted]
62 16-123 63
Exhibit "A-2"
DEPICTION OF PREMISES AND SITE
[To be inserted]
63 16-123 64
Exhibit "A-3"
DEPICTION OF PUBLIC PARKING AREA
[To be inserted]
64 16-123 65
Exhibit `B"
SCHEDULE OF PERFORMANCE FOR SECOND AMENDMENT
65 16-123 66
SCHEDULE OF PERFORMANCE — SECOND AMENDMENT
ITEM OF PERFORMANCE
TIME FOR COMPLETION
1. Lessor takes final administrative action to
Within ninety (90) calendar days of
approve and/or affirm all Development
unappealable approval of the Local Coastal
Entitlements for which City is the final
Plan Amendment and Coastal Development
administrative decision maker (Article 2 —
Permit Amendment by the California Coastal
Additional Development Entitlements for Site
Commission.
Improvements)
2. Lessor files application with California Coastal
Within forty-five (45) calendar days of
Commission to approve amendment to
Agreement Date.
certified Coastal Land Use Plan consistent
with Item 1 above and cooperate and exercise
commercially reasonable diligence to obtain
approval of such amendment.
3. Lessee submits to Lessor, for "approval in
Completed
concept," the site plans, floor plans,
landscaping, and elevations for Site
Improvements, consistent with Development
Entitlements referred to in Items 1 and 2
above.
4. Lessor's staff issues its "approval in concept"
Within ten (10) calendar days of Agreement
of Lessee's site plan, floor plans, landscaping,
Date.
and elevations for Site Improvements,
consistent with Development Entitlements
referred to in Items 1-3 above.
5. Lessor/Lessee files application with California
Within forty-five (45) calendar days of the
Coastal Commission for Coastal Development
Agreement Date and contingent upon Lessor
Permit Amendment (CDP) for Site
completing Item 2.
Improvements, consistent with Development
Entitlements referred to in Items 1-4 above.
6. Lessor/Lessee cooperate and exercise
Subject to Force Majeure, within twenty-four
commercially reasonable diligence in Lessee's
(24) months of the Agreement Date.
effort to cause California Coastal Commission
to approve CDP for Site Improvements.
7. Lessee submits building permit application(s)
Within ninety (90) calendar days of
to Lessor for approval of Final Building
completion of Item 1.
Construction Plans, security instruments, any
applicable application fees, and other items
(other than fees payable upon issuance of
permits) required to obtain approval of all
construction permits for Site Improvements.
8. Lessor completes first plan check of
Within forty-five (45) calendar days of
construction plans/documents referred to in
completion of Item 7.
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Item No. 7 and returns comments/requested
corrections to Lessee.
9. Lessee resubmits corrections to Lessor's plan
Within sixty (60) calendar days of receipt of
check comments/review of construction
Item 8.
plans/documents (with any applicable
additional fees that are owed).
10. Lessor completes subsequent plan check(s) of
Within twenty-five (25) calendar days of
Lessee's resubmittal(s) of matters referred to
submittal(s) by Lessee.
in Item No. 9.
11. Lessee submits Evidence of Financial
Within ninety (90) calendar days of
Capability, Construction Loan Documents,
completion of Item 7.
amendments to the Hotel Management
Agreement, Hotel Franchise Agreement, as
applicable, and supporting
documents/information to Lessor for
review/approval.
12. Lessor approves or disapproves Lessee's
Within thirty (30) calendar days of completion
Evidence of Financial Capability, Construction
of Item 11.
Loan Documents, amended Hotel
Management Agreement and Hotel Franchise
Agreement, as applicable, and notifies Lessee.
13. Lessee resubmits any additional/new
Within ninety (90) calendar days of
information required to obtain Lessor
completion of Item 12.
approval of Lessee's Evidence of Financial
Capability, Construction Loan Documents,
amended Hotel Management Agreement, and
Hotel Franchise Agreement, as applicable, in
response to Lessor's disapproval notice, if
applicable.
14. Lessor approves Lessee's Evidence of Financial
Within thirty (30) calendar days of completion
Capability, Construction Loan Documents,
of Item 13.
amended Hotel Management Agreement, and
Hotel Franchise Agreement, as applicable.
15. Lessee delivers Amendment to the
Within fifteen (15) calendar days of
Memorandum of Lease and cooperate in
completion of Lessee Tasks outlined in Article
causing Memorandum of Lease to be
B of the Agreement.
recorded; Commencement Date of the
Second Amendment to the Lease occurs.
16. Lessee commences construction of Site
Within the later to occur of twelve (12)
Improvements.
months of completion of Task 1 above, or six
(6) months of completion of Task 14 above.
17. Lessee completes construction of Site
Within eighteen (18) months of Lessee being
Improvements and opens Site for business to
issued the first building permit to construct.
the general public.
16-123 68
Exhibit "C"
FORM OF AMENDMENT TO MEMORANDUM OF LEASE
[To be inserted]
66 16-123 69
Attachment G
Planning Commission Staff Report, Dated July 21, 2022
16-124
PQR CITY OF NEWPORT BEACH
n PLANNING COMMISSION STAFF REPORT
July 21, 2022
�4ZIFOP- Agenda Item No. 3
SUBJECT:
Lido House Hotel Expansion (PA2020-068)
• General Plan Amendment No. GP2020-004
• Local Coastal Program Amendment No. LC2020-006
• Zoning Code Amendment No. CA2022-003
• Site Development Review No. SD2020-008
■ Conditional Use Permit No. UP2020-039
■ Addendum No. 2 to the Lido House Hotel Certified FEIR SITE LOCATION:
3300 Newport Boulevard and 475 32nd Street
APPLICANT:
R.D. Olson Development
OWNER:
City of Newport Beach
PLANNER:
Benjamin M. Zdeba, AICP, Senior Planner
949-644-3253, [email protected]
PROJECT SUMMARY
The applicant requests to add 15,103 square feet to the previously approved 130-room Lido House Hotel. The additional floor area would allow the construction of five new cottages (i.e., "rooms"), increased storage space, enlarged pre-function/breakout meeting rooms, a new greenhouse seating room, expansion of three existing hotel rooms, and an enclosed area on the rooftop terrace. Also included is demolition of the former Fire Station No. 2 building to create additional public and private parking spaces.
To implement the project, the request requires the following approvals from the City:
• General Plan Amendment — To amend Anomaly No. 85 to increase the development limit to 118,573 gross square feet;
• Local Coastal Program Amendment — To increase the development limit to 118,573 gross square feet within both the Coastal Land Use Plan and Implementation Plan;
• Zoning Code Amendment — To increase the development limit to 118,573 gross square feet;
• Site Development Review — To ensure the changes to the site are developed in accordance with applicable development standards; and
• Conditional Use Permit — To allow the operational changes that result from the changed site plan and floorplan.
• Addendum No. 2 to the Certified Final Environmental Impact Report for the Lido House Hotel — The addendum addresses reasonably foreseeable environmental impacts resulting from the project.
1 16-125
2 16-126
Lido House Hotel Expansion (PA2020-068)
Planning Commission, July 21, 2022