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HomeMy WebLinkAbout06/20/1994 - City Council1 REGULAR MEETING OF THE CITY COUNCIL CITY OF COSTA MESA JUNE 20, 1994 The City Council of the City of Costa Mesa, California, met in regular session June 20, 1994, at 6:30 p.m., in the Council Chambers of City Hall, 77 Fair Drive, Costa Mesa. The meeting was called to order by the Mayor, followed by the Pledge of Allegiance to the Flag, and invocation by Father Denis Lyons, St. John the Baptist Catholic Church. ROLL CALL Council Members Present: Mayor Sandra Genis Vice Mayor Jay Humphrey Council Member Mary Hornbuckle Council Member Peter Buffa Council Member Joe Erickson Council Members Absent: None Officials Present: City Manager Allan Roeder City Attorney Thomas Kathe Deputy City Manager/Development Services Donald Lamm Public Services Director William Morris Finance Director Susan Temple Assistant Finance Director Marc Davis Transportation Services Manager Peter Naghavi Principal Planner R. Michael Robinson Associate Planner Kristen Petros Deputy City Clerk Mary Elliott MINUTES On motion by Vice Mayor Humphrey, seconded by Council Member June 6, 1994 Erickson, and carried 5-0, the minutes of the regular meeting of June 6, 1994, were approved. ORDINANCES AND A motion was made by Council Member Buffa, seconded by Council RESOLUTIONS Member Hornbuckle, and carried 5-0, to read all ordinances and resolutions by title only. ORAL COMMUNI- Janice Davidson, 1982 Arnold Avenue, Costa Mesa, registered a CATIONS complaint regarding persons, usually adults, who bicycle after dark Bicycle Safety without proper lights. She suggested initiating a law, as well as educating bicyclists. The City Manager responded that riding after dark without a bicycle light is a Motor Vehicle Code violation, and offered to prepare a report on the bicycle safety program and a list of the number of citations given for the subject offense. Volunteer Connection Gene Anderson, 19858 Piccadilly Lane, Huntington Beach, Day representing the Volunteer Center of Greater Orange County, presented the Mayor with an official flag commemorating the second annual Volunteer Connection Day which was celebrated on April 23, 1994. He reported that 9,000 volunteers worked on 70 projects throughout the County, including graffiti removal, beach and parks cleanup, repairs and gardening for the elderly homebound, and food collection for the needy. CONSENT Item No. 2, Notice of Intention to Appeal or Solicit for Charitable CALENDAR Purpose from Teen Challenge of Southern California, was removed from the Consent Calendar. MOTION/Approved On motion by Council Member Hornbuckle, seconded by Council Except Item No. 2 Member Buffa, and carried 5-0, the remaining Consent Calendar items were approved as recommended. READING FOLDER The following Reading Folder items were received and processed: Claims Claims received by the Deputy City Clerk: James M. Bailey; Diane M. Olcott; and Pacific Bell. Alcoholic Beverage Alcoholic Beverage Licenses for which parking has been approved Licenses by the Planning Staff. Orange County Wine Society, doing business at 100 Fair Drive; Barbara Leigh Becker, doing business as Cutting Board Caterers, at 100 Fair Drive, 88 Fair Drive, Building No. 10, and 88 Fair Drive, near Building No. 17; Jose Luis Lupercio, doing business as Delfines Mexican Food, 2200 Harbor Boulevard, Suite E-170; and Vie De France Bakery Yamazki, Inc., doing business as Vie De France Cafe Bakery, 3333 Bristol Street, No. 1420 Building F. Public Utilities Application from Southern California Edison Company to the Commission Public Utilities Commission regarding rate increases, operations for the period April 1, 1993 through March 31, 1994, and other consolidated rate changes. WARRANTS Warrant Resolution 1574, funding City operating expenses in the Approved Warrant amount of $671,384.72; and Payroll 9411 for $1,182,194.32, were 1574; Payroll 9411 1 approved. �I REJECTED CLAIMS The following claims were rejected: Cole Ellen Joy Cole (pedestrian injured by vehicle at marked crosswalk - Placentia Avenue and 20th Street). Cote James Cote (fence damaged during sidewalk construction/ rehabilitation). Jakobsen Claus Michael Jakobsen (reimburse vehicle tow/storage charges). Kinross -Kennedy John Kinross -Kennedy (vehicle damaged while impounded/stored). Neal Lawrence Lawton Neal (alleged lost property and lost wages when arrested by Costa Mesa police). Steinmann Robert L. Steinmann (reimburse vehicle tow/storage charges). Thompson Christopher Thompson (vehicle damaged by dislodged manhole cover). ADMINISTRATIVE ACTIONS/Awarded Bids received for Bid Item No. 968, Rental of Three Copiers, are on Bid 968, Rental of file in the City Clerk's office. The contract was awarded to Image Three Copiers, to IV Systems, Inc., One Technology No. B111, Irvine, in an amount Image IV Systems not to exceed $105,539.00 plus tax. Awarded Canary Bids received for Rehabilitation of Canary Drive from Oriole Drive Drive Rehabilitation, to the Southerly End, Project No. 94-11, are on file in the City Project 94-11, to Clerk's office. The contract was awarded to R. J. Noble Company, R.J. Noble 15505 East Lincoln Avenue, Orange, for $48,774.65. Awarded Contract for A five-year contract was awarded to Eastman Kodak' Company, Duplicator and Copier 18301 Von Karman Avenue, Suite 200, Irvine, in an amount not to to Eastman Kodak exceed $172,775:00, in conjunction with the partnership agreement between Eastman Kodak and the County of Los Angeles. Approved Software Purchase of IBM mainframe software lease and hardware Lease and Hardware maintenance from sole source vendor, International Business Maintenance Purchase Machines Corporation (IBM), 600 Anton Boulevard, Suite 600, from IBM Costa Mesa, for an annual cost of $92,482.00, was approved. SR55/SR73 Regarding State Route 55/State Route 73 Improvement Project, Improvement Project Connector D, the following actions were taken: Approved Agreement Professional services contract with Moffatt -Nichol Engineers, with Moffatt -Nichol 3720 South Susan Street, Suite 200, Santa Ana, for $217,537.00, Engineers for Design to prepare design plans, was approved; and the Mayor and Deputy Plans City Clerk were; authorized to sign on behalf of the City. Approved Budget Budget Adjustment No. 94-45 for $220,000.00, from the Measure Adjustment 94-45 "M" Fund, was approved. Adopted Resolution Resolution 94-49, A RESOLUTION OF THE CITY COUNCIL 94-49, Design OF THE CITY OF COSTA MESA, CALIFORNIA, Services on State REQUESTING THE ORANGE COUNTY TRANSPORTATION Route 55 and 73, AUTHORITY TO ALLOCATE MEASURE M FUNDS FOR Connector D DESIGN SERVICES ON STATE ROUTE 55/STATE ROUTE 73 CONNECTOR "D", was adopted. Accepted Work by Completion of the Baker Street Bus Turnout, (Project No. 93-14A), Nobest, Inc., for and the 55 Fair Drive Bus Turnout (Project No. 93-14B), was Bus Turnouts on completed to the satisfaction of the Public Services Director on June Baker Street, Project 3, 1994, by Nobest, Inc., Post Office Box 874, Westminster. The No. 93-14A, and 55 work was accepted; the Deputy City Clerk was authorized to file a Fair Drive, Project Notice of Completion; authorization was given to release retention No. 93-14B funds 35 days thereafter; the Labor and Material Bond was ordered exonerated 7 months thereafter; and the Performance Bond was ordered exonerated 12 months thereafter. Bopark Relieved of Parkway Mainte- Regarding Citywide Annual Parkway Maintenance, Project No.' 94- nance, Project No. 08, Bopark Enterprises, Inc., was relieved of the bid proposal 94,-,09 pursuant to the Public Contract Code. Adopted Resolution Resolution 94-50, A RESOLUTION OF THE CITY COUNCIL OF 94-50, Establishing THE CITY OF COSTA MESA, CALIFORNIA, AMENDING Facilities and RESOLUTION NO. 93-60 BY ESTABLISHING THE NEW Equipment Supervisor CLASSIFICATION OF FACILITIES AND EQUIPMENT Classification SUPERVISOR ON THE BASIC PAY SCHEDULE, was adopted. Approved Agreement The amended rental agreement with Renix Corporation, doing with Renix for Rental business as Newport Boats, for rental of Parcel E located at the of Parcel E southeast corner of 19th Street and Newport Boulevard, was approved, and the City Manager was authorized to sign on behalf of the City. Accepted Work for The work was accepted for street improvements completed April 4, Street Improvements 1994, in Tract 14546, located at 2221 and 2223 Pacific Avenue, by in Tract 14546 by Neke Homes, Inc., 2821 Tucker Lane, Los Alamitos; a cash deposit Neke Homes, Inc. of $13,500.00 was ordered released; and authorization was given to release retention funds ($1,500.00) on April 4, 1995. I-405/Fairview ' Regarding I-405 Southbound Fairview Road Offramp, the following Road Offramp actions were taken: Adopted Resolution Resolution 94-51, A RESOLUTION OF THE CITY COUNCIL 94-51 Authorizing ; OF THE CITY OF COSTA MESA, CALIFORNIA, Execution of State i APPROVING AND AUTHORIZING EXECUTION OF STATE Service Agreement SERVICE AGREEMENT NO. 12LA152 TO THE MASTER No. 12LA152 AGREEMENT BETWEEN THE STATE DEPARTMENT OF TRANSPORTATION AND THE CITY OF COSTA MESA, was adopted. Approved Agreement State Service Agreement No. 12LA152 to Local Agency -State No. 12LA152 for i Agreement for Federal Aid No. 12-5312, STPLN-5312(009), was Federal Aid No. approved, and the Mayor was authorized to sign on behalf of the 12-5312 j City. i Adopted Resolution Resolution 94-52, A RESOLUTION OF THE CITY COUNCIL OF 94-52, Approving THE CITY OF COSTA MESA, CALIFORNIA, APPROVING THE Participation in INCLUSION OF ; THE CITY INTO A COUNTYWIDE Recycling Program RECYCLING MARKET DEVELOPMENT ZONE PROGRAM, was adopted. i Approved Budget i Budget Adjustment No. 94-46 for $15,000.00, to relocate a Southern Adjustment 94-46 California Edison pole at 2765 Bristol Street, was approved. Handicap Corrections Reduction of Retention Funds from 10 percent ($2,221.68) to 5 at Senior Center by percent ($1,110.84) for handicap corrections at the Costa Mesa Bopark Enterprises Senior Center by Bopark Enterprises, Inc., 8560 Vineyard Avenue, Suite 103, Rancho Cucamonga, was approved. Approved Agreement i An agreement with Pet Vaccine Services, Inc., 10525 Humbolt with Pet Vaccine Street, Los Alamitos, to provide vaccination clinics at City facilities Services, to Provide i in conjunction with City dog licensing services, was approved and Vaccination Clinics i the Mayor was authorized to sign on behalf of the City. Waived Fees for i 1 The addition of Newport Harbor Baseball Association (NHBA) and Newport Harbor i Lions Cup Soccer Tournament to the list of noncity sponsored, Baseball and Lions ( nonprofit resident youth athletic programs for which fees are waived Cup Soccer for use of City -regulated athletic fields, was approved. Approved Agreement 1 An agreement with Martin Luther Hospital, 1830 West Romneya with Martin Luther Drive, Anaheim, for sexual assault examinations at a cost of Hospital for Sexual I $650.00 per examination, was approved, and the Police Chief was Assault Examinations authorized to sign on behalf of the City. i BUSINESS PERMIT I Item 2 on the Consent Calendar was presented: Notice of Intention Teen Challenge of to Appeal or Solicit for Charitable Purpose from Teen Challenge of Southern California Southern California, 10125 California Avenue, South Gate, by door- to-door and store front solicitation from June 21, 1994, to June 21, 1995. Vice Mayor Humphrey stated his concern regarding young ipeople being out in the evenings with no supervision, and suggested that each solicitor possess an identification card. In addition, he proposed that Teen Challenge provide the Police Department with a 24-hour notice of their intention to solicit in residential neighbor- a hoods, the exact location of the proposed solicitation, the number of persons involved, and requested that solicitation be terminated when it becomes dark, or at 8:00 p.m., whichever comes first. MOTION I On motion by Vice Mayor Humphrey, seconded by Council Member Permit Approved % Erickson, and carried 5-0, the permit was approved pursuant to Municipal Code Section 9-229, including , the Vice Mayor's recommendations. Vice Mayor Humphrey stated he would like to address the curfew in relation to dealing with problems concerning young people who are on the streets after dark. ANNOUNCEMENT Mayor Genis announced that requests had been received to continue the following items: Public Hearing No. 3, Appeal of Planning Action PA -94-01; Public Hearing No. 5, Appeal of Planning Action PA -94-17; and City Attorney's Report No. 1, Disabled Access Compliance Agreement with South Coast Plaza. PUBLIC HEARING The Deputy City Clerk announced the public hearing, continued Automobile Club of from the meeting of June 6, 1994, for Hogle-Ireland, Inc., Southern California authorized agent for the Automobile Club of Southern California and C.J. Segerstrom, & ;Sons, for property located at 3333 Fairview Road, and an adjacent 9.7 -acre site immediately to the west, located north of South Coast Drive: Final Environmental Impact Report No. 1045. General Plan Amendment GP -94-01A, to redesignate property at 3333 Fairview Road from Industrial Park to Urban Center Commercial, and the adjacent 9.7 -acre site from Medium Density Residential to Urban Center Commercial, or as an alternative, to limit the proposed amendment to the property at 3333 Fairview Road, and to increase the maximum building intensity standard of the Urban Center Commercial designation for the site to 0.65 Floor Area Ratio (FAR). Rezone Petition R-94-01, to rezone property at 3333 Fairview Road from Industrial Park (MP) to Planned Development Commercial (PDC), and the adjacent 9.7 -acre site from Planned Development Residential - Medium Density (PDR -MD) to Planned Development Commercial (PDC). Planning Action PA -94-15, for a Final Development Plan for a 500,000 -square -foot expansion (in two 250,000 -square -foot phases) of the existing Automobile Club facility, including two four-story buildings and a four -level parking structure, with a Conditional Use Permit for reduction of vehicle trips through a Transportation Demand Management Program. Development Agreement DA -94-01 for the Automobile Club expansion project. Tentative Parcel Map S-94-120, Karen Selleck/Robert Bein, authorized agent for C.J. Segerstrom & Sons, to subdivide a vacant parcel of approximately 45 acres into three parcels. between Sunflower Avenue and South Coast Drive, west of 3333 Fairview Road in a, PDR -MD zone, located in the 1300 block (odd - numbered side) of Sunflower Avenue. Environmental Determina- tion: Exempt. The following item was added to this public hearing: An ordinance amending Section 13-420 of Title 13 of the Costa Mesa Municipal Code relating to allowable Floor Area Ratios for industrial zones. The Affidavit of Publication is on file in the City Clerk's office. 0 Communications received since the last meeting: Letter from Peter McDonald_, Automobile Club, stating that he could not support a change to the Industrial Park designation and requesting Council to consider the project as originally proposed; letter from Thomas McKernan, Jr., Automobile Club, stating his intention to continue to work with the City; 18 communications in favor of the expansion; a communication containing two signatures and another containing four signatures, in favor of the expansion; one letter opposed to the Development Agreement; one letter opposing the expansion until all necessary information is received; and one opposing the expansion. The Deputy City Manager/Development Services summarized the Agenda Report dated June 15, 1994. The Senior Planner briefly reviewed the Planning Commission's actions in the special meeting of June 20, 1994, at 5:00 p.m., at which time they had considered the Environmental Impact Report (EIR), the addendum to the EIR, and the Industrial Park land use alternative. Terry Austin, Austin -Foust Associates, Inc., 2020 North Tustin Avenue, Santa Ana, traffic consultant for the project, addressed trip generations, stating that the findings are such that on an average daily traffic basis, the composite use approach comes out slightly lower than that used in the EIR, and the peak hour figure was almost identical. He reported that this indicates that the basis on which level of service was estimated would be the same had the more complex approach been used and is a good estimate of the trips the Automobile Club will generate when it is fully built out. Thomas McKernan, President of the Automobile Club of Southern California, 2601 South Figueroa Street, Los Angeles, presented a brief history of the Auto Club's association with the City, commenting that since 1986 they have been attempting to obtain direction and approval for expansion of this property to better plan .for the future. He stated that they had agreed to invest considerable monies to acquire additional property to reduce density and have also agreed to several million dollars in mitigation fees, all in an effort to protect the existing investment; however, the cost effective limit has now been reached. He reported that the need to consoli- date operations of the Los Angeles and Costa Mesa offices is not an option now but a necessity, and significant issues such as employee uncertainty and stress on key people must be resolved. Peter McDonald, Chief Financial Office, Automobile Club of Southern California, 3333 Fairview Road, Costa Mesa, presented the following information: the Auto Club facility when fully built out will generate $4.5 million in local business activity; the expansion program will have a multiplier effect on employment in Costa Mesa that will generate 344 new jobs with a payroll of around $9 million a year; construction employment will generate jobs equivalent to 942 person years, or retain the equivalent of 942 construction workers employed for one year and generate $33 million in payroll and benefits; and the Auto Club will generate $280,000.00 in municipal revenues to the City each year. He stated that the Auto Club, besides being a solid, strong organization that provides quality service and employment opportunities, has lived up to its responsi- bilities since the processing center was established in 1982.. He explained that the Auto Club is a leader in traffic management with an active rideshare program having a ridership rate of 1.29. } Robert Klotz, Pillsbury, Madison .& Sutro, 600 Anton Boulevard, Suite 1100, Costa Mesa, confirmed that Mitigation Measures 6, 8, and 12, which are, incorporated in the Planning Commission's approval of the General Plan Amendment and the Planning action, require modification to conform to the Development Agreement. The following Costa Mesa residents spoke in favor of the Automobile Club expansion: Roy Andreen, 2769 Cibola Avenue, representing Mesa Verde Homeowners Association; Franklin Cole, 2482 Fairview Way, representing Fairview Village Homeowners Association; Janice Davidson, 1982 Arnold Avenue; David Dowd, 3023 Killybrooke Lane; John Javage, 980 Lansing Lane; Phil Kilmer, 2741 San Carlos Lane; Eva Marin, 1780 Placentia Avenue; Kurt Nelson, 1104 San Jose Avenue; Marie Maples, 461 Swarthmore Lane; Ed Fawcett, Costa Mesa Chamber of Commerce, 1835 Newport Boulevard, Suite E270; John Peiser, General Manager of the Holiday Inn,�,3f131 South Bristol Street, and a resident at 555 West Paularino Avenue; Nancy Palme, 1997.Kornat Drive; Sussie Quinn, 1030 Mission Drive; and Vaughn Redding, 1748 Samar Drive. John Killian, 14509 Devlin Avenue, Norwalk, also spoke in favor of the Auto Club expansion. The following Costa Mesa residents expressed various concerns regarding the expansion: Blaze Bonazza, 1161 Princess Court, Costa Mesa (who submitted a written communication to the Deputy City Clerk); Charles Robertson, 1885 Tahiti Drive,. President of the Mesa Verde Homeowners Association; and Janet Remington, 1154 Boise Way. RECESS The Mayor declared a recess at 8:25 p.m., and reconvened the meeting at -8:40 p.m. After recess, additional Costa Mesa residents spoke in support of the Automobile Club expansion: Jim Ferryman, 1095 Tulare Drive, Costa Mesa Chamber of Commerce; Dan Shobe, 3233 Idaho Place; Linda Maddox, 3149 Killarney Lane; Beverly Santore-Tovar, 2300 Fairview Road, No. U-205; Mark Meizner, 1741 Tustin Avenue, No. 11A; Carey Ward, 126 East 19th Street; Ron Hall, 889 Sonora Road; John Feeney, 1154 Dorset Lane; John Moorlach, 1055 El Camino Drive; Mike O'Brien, 2157 Pacific Avenue; and Sid Soffer, 900 Arbor Street, Costa Mesa. Bob Sofranko, 17 Harrisburg, Irvine; and Charles Wilson, 1325 South Grand Avenue, Santa Ana, also spoke in favor of the Auto Club expansion. Other Costa Mesa residents expressed various concerns regarding the expansion: Scott Williams, 3465 Santa Clara Circle; Charles Graham, 2792 Redwing Circle; Alan Remington, )l 164 Boise Way; Jim Wells, 1797 Oriole Drive; and Gene Hutchins, 1808 Kinglet Court (who submitted a written communication to the Deputy City Clerk). There being no other speakers, the Mayor closed the public hearing. Council Member Buffa stated that he would abstain from discussion and the vote on certification of Environmental Impact Report No. 1045. Mayor Genis suggested adding the following to Mitigation Measure No. .1, "The additional units shall not result in intensification of residential densities at any location at a level in excess of those specified in the 1990 General Plan. The units may be provided in 3' 22 MOTION/Adopted Resolution 94-53 Certifying EIR 1045, Addendum 1, and Mitigation Measure 1 AMENDED MOTION Added Mitigation Measures No. 6, No. 8, and No. 12 MOTION Adopted Resolution 94-54 Adopting GP -94-01A, with a Maximum FAR of .56 areas designated for nonresidential uses under the 1990 General Plan. " A motion was made by Council Member Hornbuckle to adopt Resolution 94-53, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT NO. 1045 AND, ADDENDUM NO. 1 FOR THE AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA FACILITY EXPANSION LOCATED AT 3333 FAIRVIEW ROAD, COSTA MESA, with the addition of Mitigation No. 1: "The additional units shall not result in intensification of residential densities at any location which is in excess of those specified in the 1990 General Plan.. The units may be provided in areas designated for nonresidential uses under the 1990 General Plan". At the request of . Council Member Erickson, Council Member Hornbuckle amended the motion by adding the following mitigation measures contained in the memorandum from Kristen C. Petros, Associate Planner, dated June 1, 1994: Mitigation Measure 6: The project applicant shall participate in the implementation of Master Plan of Highways improvements through payment of development impact fees in accordance with the City of Costa Mesa's Ordinance 93-11 and Resolution 93-43 as amended by Development Agreement DA -95-01. Specific intersection improvements are as follows: (No changes proposed to list of improvements). Mitigation Measure 8: The project applicant shall participate in the implementation of Master Plan of Highways improvements through the payment of development impact fees in accordance with the City of Costa Mesa's Ordinance 93-11 and Resolution 93-43 as amended by Development Agreement DA -94-01. The City of Costa Mesa will contribute the project's fair share of the trip fee to the City of Santa Ana for improvements within that city. Specific non:committed Master Plan improvements are as follows: (No changes proposed to .list of improvements). Mitigation Measure 12: In compliance with the intent of Costa Mesa Municipal Code Section 13-327(d), the Transportation Demand Management Program, as modified by Development Agreement DA -94-01, the applicant shall submit within three years after occupancy of each phase an AQMD Regulation XV Report or similar study to be reviewed by the City's staff. The report shall be prepared for the City at the expense of the property owner to show whether or not the vehicle trip reduction identified in the program has been achieved and maintained. The amended motion was seconded by Council Member Erickson. After considerable discussion, the motion carried 4-0, Council Member Buffa abstaining. A motion was made by Council Member Buffa to adopt Resolution 94-54, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, ADOPTING GENERAL PLAN AMENDMENT GP -94-01A; redesignating property at 3333 Fairview Road from Industrial Park to Urban Center Commercial and the adjacent 9'.7 -acre site from Medium Density Residential to Urban Center Commercial; stipulating a maximum Floor Area Ratio (FAR) of .56. 1 Substitute Motion A substitute motion was made by Mayor Genis, seconded by Vice Failed to Carry Mayor Humphrey, to approve "the Industrial Park land use designation which is .Attachment 9 on the yellow sheets, Page 24, paragraph d., add to the beginning of the sentence "In addition to the required trip fees"; Page 26, Facts in Support of Finding, paragraph c., amend to read " The project, by itself, does not significantly impact the Harbor Boulevard/I-405 etc.; Page 48, delete finding No. 1; Page 49, delete existing Finding No. 1 and in its place add "This alternative would not be feasible inasmuch as it would require agreement from other landowners to provide the transferred development rights which is beyond the control of the project applicant and on Page 51, delete the second sentence in Finding No. 8. After lengthy discussion, the substitute motion failed to carry 3-2, Council Members Hornbuckle, Buffa, and Erickson voting no. Further discussion -,,!.ensued. between Council, the City Attorney, the Deputy City Manager/Development Services, and the attorney representing the Automobile Club, Robert Klotz. Original Motion Council Member Buffa clarified that his motion stands as originally Clarified: Included stated which also reflects Mitigation Measures No. 6, No. 8, and Mitigation Measures No. 12 as detailed in the motion adopting the Environmental Impact 6, 8, 12, and 29A Report, and adding Mitigation No. 29A: "Prior to issuance of grading permits or alterations to the adjacent flood control channel, the applicant shall comply with the applicable provisions of Fish and Game Code Section 1603. The motion carried 3-2, Council Members Genis and Humphrey voting no. MOTION On motion by Council Member Buffa, seconded by Council Member Ordinance 94-10 Humphrey, and carried 5-0, Rezone Petition R-94-01 was approved Given First Reading by giving first reading to Ordinance 94-10, AN ORDINANCE OF for R-94-01 THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, CHANGING THE ZONING OF PROPERTY AT 3333 FAIRVIEW ROAD AND AN ADJACENT 9.7 -ACRE PARCEL TO THE WEST FROM MP AND PDR -MD TO PDC. MOTION A motion was made by Council Member Buffa to adopt Resolution Resolution 94-55 94-55, A RESOLUTION OF THE CITY COUNCIL OF THE CITY Adopted Approving OF COSTA MESA, CALIFORNIA, APPROVING PLANNING PA -94-15 ACTION PA -94-15, for a 500,000 -square -foot expansion (in two 250,000 -square -foot phases) of the existing Automobile Club facility, including two four-story buildings and a four -level parking structure, with a Development Agreement for reduction of vehicle trips through a Transportation Demand Management Program; with Condition No. 3 amended to read, "Concrete wheel stops shall be installed two feet from the front edge of open parking spaces in the parking structure; and Condition No. 7 amended to read, "The approval of this Final Development Plan (PA -94-15) includes approval to develop, construct, and occupy buildings totaling up to 500,000 square feet of gross floor area for office uses located within the Office Building Envelope defined and depicted on Exhibit C1 to this Final Development Plan. The approval of this Final Development Plan also includes the approval to develop, construct, and occupy a parking structure with a capacity to park up to 1,840 vehicles located within the Parking Structure Envelope defined and depicted on Exhibit C1 or Exhibit C2. (Exhibit C1 shall apply if a 20 -foot setback is required from the northerly property line, and Exhibit C2 shall apply if a 60 -foot setback applies.) The office buildings shall not exceed four stories or the height limit established by the Office Building Envelope. The parking structure shall not `.0 24 MOTION/To Adopt DA -94-01 with Modifications First Substitute Motion Withdrawn SECOND SUBSTI- TUTE MOTION Ordinance 94-11 Given First Reading Approving DA -94-01 MOTION Resolution 94-56 Adopted Approving Parcel Map 5-94-120 RECESS PUBLIC HEARING A AAA Yellow Cab, Inc. exceed four stories or the height limit established by the Parking Structure Envelope. Permittee is approved to construct the office buildings in two or more phases and at any location within the Office Building Envelope. Permittee is approved to construct the parking structure in two or more phases and at any location within the Parking Structure Envelope. The motion was seconded by Council Member Hornbuckle, and carried 5-0. Mayor Genis moved to adopt Development Agreement DA -94-01, adding "abandonment of the use of TDM's to reduce traffic impacts" on Page 10, Paragraph 3.7, Subparagraph (f) and on Page 11, Paragraph (i), and Page 12, Paragraph (ii); add "however, in no case shall the peak hour traffic exceed that analyzed in Section 4(d) of Environmental Impact Report No 1045, nor the trip budget designated under General Plan Amendment GP -94-01A; and change the assignability clause as recommended by Mr. Hutchins in his letter dated June 20,,1994, to read, "the sale, transfer or long term lease of the property prior to issuance of Certificates of Occupancy for new development totalling 450,000 square feet of building area or more or termination pursuant to this paragraph shall not be deemed to occur if all parties agree in writing to the continuation of this agreement"; which would be 26(e). Lengthy discussion followed between Mayor Genis, Robert Klotz, attorney for the Automobile Club, and the City Attorney. Council Member Buffa made a substitute motion to approve the Development Agreement with the Mayor's modifications, except the references to termination in Mr. Hutchin's letter and the issue of banning the use of TDM; however, after brief discussion, Council Member Buffa withdrew the motion. A substitute motion was made by Council Member Buffa, seconded by Council Member Hornbuckle, to give first reading to Ordinance 94-11, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF COSTA MESA AND INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, as designated in City Attorney's Report No. 94-46, with Paragraph 2.4 amended limiting any assignment of right to the project to City Council review and approval. The motion carried 4-1, Mayor Genis voting no. Council Member Buffa announced that he would be abstaining from consideration of Tentative Parcel Map S-94-120. A motion was made by Council Member Hornbuckle, seconded by Mayor Genis, to adopt Resolution 94-56, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALI- FORNIA, APPROVING TENTATIVE PARCEL MAP 5-94-120. The motion carried 4-0, Council Member Buffa abstaining. The Mayor declared a recess at 12:15 p.m., and reconvened the meeting at 12:25 p.m. The Deputy City Clerk announced the public hearing, continued from the meeting of June 6, 1994, to consider a Certificate of Public Convenience and Necessity for Hossein A. Nabati, A AAA Yellow Cab, Inc., doing business as West Coast Cab Company, 941 r -I ' '£ € Santiago Avenue, Santa Ana. The Assistant Finance Director reviewed the Agenda Report dated May 26, 1994. Council Member, Hornbuckle expressed concern regarding the similarity between the applicant's logo and that of the Automobile Club and the fact that there is another yellow cab operating within the City. Vice Mayor Humphrey concurred with those concerns. Mike Casey, General Manager, A AAA Yellow Cab Company, responded to Council Member Hornbuckle by stating that since the company's inception, expansion into various cities in Orange County had been accompanied by a complexity of names. He explained that reorganizing under one name, would allow them to solidify and simplify their operations. He also reported on a pending lawsuit with the Automobile Club regarding the use of this name. There being no other.. speakers, the Mayor closed the public hearing. MOTION A motion was made by Council Member Buffa, seconded by Mayor Certificate Approved Genis, and carried 5-0, to approve the modifications to the existing Certificate subject to completion of a safety inspection of vehicles, stipulating that all vehicles retain the white cabs with yellow roofs rather than being all yellow, and that the use of West Coast Cab Company be continued until the lawsuit with the Automobile Club is settled. PUBLIC HEARING On motion by Council Member Erickson, seconded by Council Appeal of PA -94-01 Member Buffa, and carried 5-0, the following public hearing was From Scarcello continued to the meeting of July 5, 1994: MOTION Continued from the meeting of June 6, 1994, application from Continued to Eugene S. Scarcello, 1706-B Newport Boulevard; Costa Mesa, July 5, 1994 appealing the Planning Commission's approval of Planning Action PA -94-01, Brennan Cassidy, authorized agent for the City of Costa Mesa, for a variance from street setback requirements (20 feet required, 4 - 10 feet proposed), in conjunction with construction of...a 3000 -square -foot medical building at 121 East 17th Street in a C2 zone. Environmental Determination: Negative Declaration. PUBLIC HEARING The Deputy City Clerk announced the public hearing, continued Appeal of PA -94-11/ from the meeting of June 6, 1994, to consider an appeal of the RA -94-04, Murdock/ Planning Commission and Redevelopment Agency denials of Pope Planning Action PA -94-11, Redevelopment Action RA -94-04, from William A. Murdock,, 767 Promontory Drive West, Newport Beach, authorized agent for Blanche Pope/Pope Family Trust, for condi- tional use permits to legalize expansion of the Stag Bar into the former George's Hoagies, and to deviate from shared parking requirements; with Redevelopment Agency review, located at 145 East 19th Street in a Cl zone. Environmental Determination: Exempt. The Affidavit of Mailing is on file in the City Clerk's office. A communication was received from C. A. Peterman, 132 East 19th Street, Costa Mesa, opposing the expansion. The Deputy City Manager/Development Services briefly reviewed the Agenda Report dated June 13, 1994. Tom Tunstall, owner of the Stag Bar, explained that every call to the police from his neighborhood is attributed to problems at the Stag Bar. He detailed some of his interactions with the Police Department, and stated that the problem is being exaggerated. He reported that when he applied for the expansion, the Alcoholic v 26 MOTION PA-94-11/RA-94-04 Denied PUBLIC HEARING Appeal of PA -94-17` Morey MOTION Continued to July 5, 1994 PUBLIC HEARING Appeal of ZE-80- 43A2, Moore Beverage Control people did a survey of the neighborhood and had no objections. Paul Barba, representing Rosemary Siler Family Trust, 17291 Irvine Boulevard, No. 315, Tustin, owner of the Mesa Theater property which is adjacent to the Stag Bar, related that the expansion of the bar will have an adverse impact on the community. Sergeant Dale Birney, Costa Mesa Police Department, spoke on behalf of Lieutenant Alan Kent, stated that he had a breakdown of the calls for service that the Police Department responded to in 1993, and reported that 37 individuals arrested for Driving Under the Influence (DUI) had been drinking at the Stag Bar. There being no other speakers, the Mayor closed the public hearing. A motion was made by Vice Mayor Humphrey, seconded by Council Member -Erickson, and carried 5-0, to uphold the Planning Commission's denial and adopt Resolution 94-57, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, DENYING PLANNING ACTION PA -94- 1 VREDEVELOPMENT ACTION RA -94-04; directing the applicant to obtain building permits and permanently seal doors between two suites within 30 days of this action; and obtain demolition permits and return store fronts to their ' original condition or apply for Redevelopment Agency review of modified elevations within 30 days of this action. On motion by Council Member Buffa, seconded by Mayor Genis, and carried 5-0, the following public hearing was continued to the meeting of July 5, 1994: Continued from the meeting of June 6, 1994, appeal of the Planning Commission's denial of Planning Action PA -94-17 from Keith B. Morey, Oceanview Financial, authorized agent for Bill Beck, Grace Fellowship Church, for conditional use permits to allow a mortgage brokerage use in a 3,200 -square - foot portion of an industrial building, and to deviate from shared parking requirements, located at 3170-A Red Hill Avenue in an MP zone. Environmental Determination: Exempt. The Deputy City Clerk announced that this was the time and place set for the public hearing to consider an appeal of the Planning Commission's decision for Zone Exception ZE-80-43A2 from Bill Moore and Associates, Post Office Box 6153, Albany, California, authorized agent - for DMP Properties, 36 Mission Bay Drive, Corona del Mar, for an amendment to a Planned Signing Program for excess sign height, area, letter height, and number of tenants for two ground signs, and to allow additional wall sign area and letter height for both Santa Ana Avenue and East 17th Street elevations of the Ross Store, at 277-289 East 17th Street in a C1 -S zone. Environmental Determination: Exempt. The Affidavit of Mailing is on file in the City Clerk's office. A communication was received from Aromas Espresso Cafe, 259 East 17th Street, Costa Mesa, in support of the signs requested by Ross. The Deputy City Manager/Development Services summarized the Agenda Report dated June 16, 1994. Greg McGillis, Vice President of Real Estate for Ross Stores, commented that the building on 17th Street (which used to be 1 [1 Builders Emporium) is in an awkward location from a retail standpoint, being ' set way off the street and not visible from one direction. He stated that the customers appreciate clear, legible; readable signage which is also a safety factor. He reported that Ross is investing a large amount, of money to make substantial improvements to. the building and to increase the parking lot lights. There being no other speakers, the Mayor closed the public hearing. Council Member Hornbuckle objected to the large sign that was in place .on the street when Builders Emporium was in business and could not support the proposal to retain that particular sign. MOTION On motion by Vice Mayor Humphrey, seconded by Council Member Resolution 94-58 Erickson, and carried 5-0, Resolution 94-58, A RESOLUTION OF Adopted Approving THE CITY COUNCIL OF THE CITY OF COSTA MESA, ZE-80-43A2 CALIFORNIA, APPROVING ZONE EXCEPTION PERMIT ZE- 83-43A2, was adopted,' with the following amendments to the Planned Signing Program: replace the existing ground sign with a 25 -foot high, 250 -square -foot ground sign, maximum letter height 28 inches; allow the proposed 172 -square -foot wall sign facing East 17th Street, with 48 -inch letter height for "Ross" and a 36 -inch letter height for "Dress for Less"; and.allow a wall signage on Santa Ana Avenue frontage with a maximum letter height of 14 inches, With number of items and area as defined by the Sign Code, resulting in a sign area of approximately 17 square feet. PUBLIC HEARING The Deputy City Clerk announced the public hearing, continued Traffic Impact Fee from the meeting of June 6, 1994, to consider a resolution establishing a traffic impact fee pertaining to new development in the City of Costa Mesa and related capital improvement plan- for transportation improvements. The Affidavit of Publication is on file in the City Clerk's office. No communications were received. The City Manager reviewed the Agenda Report dated May 27, 1994. There being no speakers, the Mayor closed the public hearing. MOTION On motion by Council Member Buffa:, seconded by Council Member Resolution 94-59 Erickson, and carried 5-0, Resolution 94-59, A RESOLUTION OF Adopted THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, REESTABLISHING A TRAFFIC IMPACT FEE PERTAINING TO NEW DEVELOPMENT IN THE CITY OF COSTA MESA AND RELATED CAPITAL IMPROVEMENT PLAN FOR TRANSPORTATION IMPROVEMENTS, was adopted. PUBLIC HEARING The Deputy City Clerk announced that this was the time and place 1994-95 Appropria- set for the public hearing to consider a resolution establishing the tions Limit 1994-95 appropriations limit at $76,456,492.00. The Affidavit of Publication is on .file in the City Clerk's office. No communications were received. The Finance Director summarized the Agenda Report dated May 26, 1994. There being no speakers, the Mayor closed the public hearing MOTION On motion by Vice Mayor Humphrey, seconded by Council Member Resolution 94-60 Buffa, and carried 5-0, Resolution 94-60, A RESOLUTION OF Adopted THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, DETERMINING AND ADOPTING AN APPRO- PRIATIONS LIMIT FOR THE FISCAL YEAR OF 1994-95, IN ACCORDANCE WITH ARTICLE XIII -B OF THE CONSTITU- 27 ` 28 PUBLIC HEARING 1994-95 City Budget/ 1994-95 Investment Policy MOTION Resolution 94-61 Adopted MOTION Resolution 94-62 Adopted PUBLIC HEARING 1994-95 General Fund Operating Reserve MOTION Resolution 94-63 Adopted TION OF THE STATE OF CALIFORNIA, AS AMENDED BY PROPOSITION 111 AND SB 88, was adopted. The Deputy City Clerk announced that this was the time and place set for the public hearing to consider the City Budget for fiscal year 1994-95; a resolution adopting the 1994-95 Preliminary Budget as amended; and a resolution adopting an investment policy for the 1994-95 fiscal year. The Affidavit -of -Publication is on file in the City Clerk's office. No communications were received. The Finance Director reviewed the Agenda Report relating to the City Budget dated June, 1994. There being no speakers, the Mayor closed the public hearing. On motion by Council Member Hornbuckle, seconded by Council Member Buffa, and carried 5-0, Resolution 94-61, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, ADOPTING A BUDGET FOR THE FISCAL YEAR 1994-95, was` adopted. The Finance Director addressed the investment policy and summarized the Agenda Report dated June 7, 1994. John Moorlach, 1055 El Camino Drive, Costa Mesa, commented on the Statement of Investment Policy, . and made several recommendations. There being no other speakers, the Mayor closed the public hearing. On motion by Council Member Erickson, seconded by Council Member Hornbuckle, and carried 5-0, Resolution 94-62, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, -CALIFORNIA, AUTHORIZING THE CITY TREASURER TO INVEST AND REINVEST IDLE MONIES OF THE CITY OF COSTA MESA IN ELIGIBLE SECURITIES AND TO SELL' OR EXCHANGE SECURITIES PURCHASED, AND AUTHORIZING SAID TREASURER TO, DEPOSIT SUCH SECURITIES FOR SAFEKEEPING IN DESIGNATED BANKS AND SAVINGS AND LOANS AND AUTHORIZING THE SAID TREASURER TO DELEGATE TO THE ASSISTANT DIRECTOR OF FINANCE THE CARRYING OUT OF ANY SUCH TASKS, was adopted. The City Manager stated that he would like to continue the dialogue with Mr. Moorlach and the County Treasurer. The Deputy City Clerk announced that this was the time and place set for the public hearing to consider a resolution establishing a $14.1 million General Fund Operating Reserve for the 1994-95 fiscal year. The Affidavit of Publication is on file in the City Clerk's office. No communications were received. The Finance Director reviewed the Agenda Report dated June 13, 1994. On motion by Vice Mayor Humphrey, seconded by Council Member Hornbuckle, and carried 5-0, Resolution 94-63, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, DETERMINING AND ADOPTING , THE GENERAL FUND OPERATING RESERVE FOR THE 1994-95 FISCAL YEAR, IN ACCORDANCE WITH TITLE 2, CHAPTER V, ARTICLE 6, OF THE COSTA MESA MUNICIPAL CODE, was adopted. LI ADJOURNMENT TO Mayor Genis adjourned the Council meeting to a special meeting of SPECIAL MEETING the Redevelopment Agency, and Agency Chairman Buffa convened OF THE REDEVEL- the Agency meeting: OPMENT AGENCY Agency Members Present: Chairman Peter Buffa Vice Chairman Jay Humphrey Agency Member Mary Hornbuckle Agency Member Sandra Genis Agency Member Joe Erickson Agency,Members Absent: None Officials Present: Executive Director Allen Roeder NEW BUSINESS The Deputy City Clerk announced that the Redevelopment Agency 1994-95 Budget agenda was posted at- the Council Chambers and Police Department on Wednesday, June _ 15, 1994. The Deputy City Clerk presented the Redevelopment Agency budget for fiscal year 1994-95. The City Manager summarized the Agenda Report dated June 20, 1994. The Finance Director clarified that it was a possibility that the Agency could repay to the City the full amount of the interest due for the 1994-95 fiscal year. MOTION On motion by Agency Member Hornbuckle, seconded by Agency Resolution 170-94 Member Erickson, and carried 5-0, Resolution 170-94, A Adopted RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF COSTA MESA, CALIFORNIA, ADOPTING A BUDGET FOR THE FISCAL YEAR 1994-95, was adopted. CITY COUNCIL Chairman Buffa adjourned the special meeting of the Redevelopment MEETING Agency; and Mayor Genis reconvened the regular City Council RECONVENED meeting. OLD BUSINESS A motion was made by Council Member Hornbuckle, seconded by MOTION/Members Vice Mayor Humphrey, and carried 5-0, to appoint Dr. James Appointed to Resi- Gardner, Daniel R. Stalker, Susan Scarpinato, John Konwiser, and dential Rehabilitation Richard A. Sewell as ad hoc committee members to the Multi -family Incentive Committee Residential Rehabilitation Incentive Committee. OLD BUSINESS The Deputy City Clerk presented the City Attorney's Report No. 94 - Plaza Tower Traffic 35 regarding final determination of the iraff c impact fee for Plaza Impact Fee Tower, 600 Anton Boulevard. The City Attorney reviewed his report dated May 24, 1994. The Transportation. Services Manager reported that the trip fee figure was close to $358.00. Malcomb Ross, 600 Anton Boulevard Associates, 3315 Fairview Road, Costa Mesa, submitted that he felt this fee was fair. MOTION On motion by Council Member Hornbuckle, seconded by Council Final Impact Fee Member Erickson, and carried 5. 0" pursuant to the Development Fee Determined .Funding Agreement, Paragraph 5, Subparagraph (c), the City Council found that the final determination of the total impact fee due from this project is $2,449,159.01. OLD BUSINESS The Deputy City Clerk presented an agreement with Newport -Mesa Balearic Center Lease Unified School District for lease of Balearic Center. The City Manager reviewed , the Agenda Report dated June 16, 1994, reporting that the School District has suggested that there be no assignment to the City of responsibility for accessibility MOTION Approved Agreement NEW BUSINESS Access Appeals Board MOTION Continued to July 5, 1994 CITY ATTORNEY'S REPORT MOTION/South Coast Plaza Disabled Access Continued to July 5, 1994 CITY MANAGER'S REPORT COUNCIL COMMENTS Crime Statistics City Manager Commended Election Signs Tony Malicone Passing .improvements. He also stated that the termination would be reduced from a period of 24 months to a period of 60 days. On motion by Council Member Erickson, seconded by Vice Mayor Humphrey, and carried 5-0, . the agreement was approved as modified above. The Deputy City Clerk presented a request to appoint of members to the Access Appeals Board. The City Manager requested that this item be continued. On motion by Council Member Buffa, seconded by Council Member Erickson, and carried 5-0, this item was continued to the meeting of July 5, 1994. On motion by Council Member Buffa, seconded by Council Member Hornbuckle, and carried 5-0, the following item was continued to the meeting of July 5, 1994: Continued from the meeting of June 6, 1994, Disabled Access Compliance Agreement with South Coast Plaza. The City Manager complimented the Finance Department and all other departments in preparation of the budget. Council Member Erickson asked for a short explanation as to what is happening with the crime rate. He stated he had understood that it was down 11 percent from last year but a report in the paper indicated otherwise. Council Member Hornbuckle commended anager for his manner of conducting the City's business and the part he played in balancing the budget. She complained about the number of election signs which have not been taken down. Mayor Genis announced that one of the City's committee members, Tony Malicone passed away June 19, and services will be conducted on Tuesday, June 21, 1994, 7:00 p.m., at Prince of Peace Lutheran Church. ADJOURNMENT i The Mayor declared the meeting adjourned at 1:55 a.m. Mayor of the City of Costa Mesa I - ATTEST: Deputy City Clerk of the City of Costa Mesa Following is a copy of a partial verbatim transcript, starting with the motions for the Automobile Club applications. VERBATIM TRANSCRIPT AUTOMOBILE CLUB MOTIONS June 20, 1994 FINAL ENVIRONMENTAL IMPACT REPORT NO. 1045 Hornbuckle: Just to move us forward then, I would move that we adopt the resolution certifying EIR No. 1045 and Addendum No. 1, with the addition to Mitigation Measure No. 1 as outlined by yourself (The additional units shall not result in intensification of residential densities at any location at a level in excess of those specified in the 1990 General Plan. The units may be provided in areas designated for nonresidential uses under the 1990 General Plan.). Erickson: Second. Discussion, Madam Mayor. As far as the other conditions, Council Member Hornbuckle, that were requested in the -memo from Kristen Cashers dated June 1st, and the Mitigation Measure No. 3 regarding the bumpers, or wheel stops, the conditions would be No. 3, No. 6, No. 7, No. 8, and No. 12, and again the wheel stops on the earlier memo and the conditions from Mrs. Petros' memo of June 1st. Hornbuckle: I would accept that as addition to the motion. It is getting hard to find everything in all this paper. Genis: I still would ... I would like to add to the ... let's see, the first "Whereas" on handwritten Page 37 of Attachment 7, and the last "Now, Therefore" at the very end add the line, "provided that the trip generation analyzed in the EIR is achieved." Hornbuckle: Add it at both those places? Genis: Yeah. Since the EIR didn't analyze anymore trips than that—if they don't achieve it, then the EIR didn't analyze impact of the project anyway. Kathe: Point of clarification. Could you identify that "Whereas" again? Under which document you're referring to? Genis: Attachment 7, and it's the first "Whereas" of handwritten Page 37 ... right before the semi... provided that the trip generation analyzed in the EIR is achieved, and right before the period after the "Now, Therefore" clause, where there is Costa Mesa Environmental Guidelines. Well, right before the period, have a comma with that same line, "provided that the trip generation analyzed in the EIR is achieved." Auto Club Attorney Klotz: Would the Council permit a comment? Kathe: Point of clarification. My first comment on that would be you're making findings, and all the CEQA certification resolution does is certify the document as being adequate. I would suggest that if you wanted to make that kind of finding that you would make that in your finding section which is in the green document. Genis: Well, here is my position. We had trip generation all over the map, and my level of confidence in the trip generation ... I finally decided that we have a bunch of engineers here and we have CALTRANS and we have whatnot but we have the Auto Club saying ... we feel those rates are adequate, in fact we feel they're so adequate we're kind of disappointed that we had to discuss this so much at the last meeting. I would only be willing to ... I only could see certifying the EIR because it has been so ... because the rates really ... there are all kinds of things going on. If I felt that there is a commitment to the (inaudible), and that's why I would like to have it in the CEQA certification. This is just a "Whereas" anyway. Kathe: But that is a mitigation measure. That is a finding and a mitigation measure. That normally... Genis: Except it's not a mitigation measure, Mr. Kathe, because the EIR did not analyze any more trips than that.) So if it did make more trips than that, then the EIR wouldn't be adequate because it wouldn't have analyzed those. Kathe: In essence what you're doing, and correct me if I'm wrong, is you're conditioning certification on them achieving the traffic generation rates provided for in the environmental document. Now, in essence, what the environmental document does, and we have Mr. Austin here to testify in his expert opinion, he is giving you information on what he believes the trip generation rates are. If you want to guarantee those rates, those should be provided in a mitigation measure, not in the certification document. That's what a mitigation measure does. . Genis: Well, then should we add a mitigation measure to the document itself? Kathe: That would, be the appropriate course to take. Genis; O.K. So since we're doing the mitigation measures... Kathe: So in essence what you would do is you would certify the document based on the information in the document, you would then craft a mitigation measure. Genis: O.K. My concern though is based on the information in the document. We can't allow more than that amount of trips. And I'm still a little "000ey" on the trips. But my feeling is hey, if the Auto Club feels they can do it, why argue with them. But if they don't feel they can do it, then we need to go back and come up with whatever numbers Auto Club does feel they can achieve, and analyze that on the streets. Kathe: And that is'a mitigation measure. Klotz: Mr. Kathe has correctly observed that the sole function of the certification motion is to certify that the EIR 'has the legal contents as required under CEQA and that you in fact have reviewed it. The other motions with respect to project approval address mitigation measures. The motion on certification does not properly include consideration of this mitigation measure or any other. Genis: But as a point of clarification, if there are impacts that will occur that were not analyzed in the EIR, then; that would basically result in an inadequate EIR. Right? Klotz: If you accept your premise, that would be correct. The last two weeks, I've spent a good deal of time establishing that that is not in fact the case. Genis: O.K. How about then instead of saying assuming that, we'll just say consider all environmental impacts of the proposed project including generation of however many additional trips from the site. i Kathe: I would caution you on that motion because in essence what you're doing is high- lighting one impact among many identified in the environmental document. What I would recommend is that if you are uneasy about the traffic generation issues, I would amend the environmental document and add a mitigation measure. I mean that's what it's for. And then go certify your document; make sure that that mitigation measure is attached. In this scenario what you're doing is you're highlighting one impact over the others. I don't see a problem with it but in essence what you're doing is discounting all the other environmental impacts. Genis: So, you would suggest that we add one more mitigation measure. Kathe: If you're f'learful of traffic impacts, order a traffic mitigation measure. That's what it's for. Genis: O.K. And! we should do this now or then, or later? Kathe: You have a choice. You have the environmental document... like I said before, you can take your environmental document, open it up to the EIR page such and such on traffic, and make a motion to amend it right then and there, and then go forward. Now, that doesn't stop City Council at a later point in time after certifying the document from reamending the mitigation measure and changing it back again. You see what I'm getting at, by changing the mitigation measure now at this point in certification, you don't forestall the fact that someone else may come back and change it as part of a condition of approval. There is no way to get around it. The certification issue is simply whether it's adequate. The traffic issue is a mitigation measure. So you have a choice. You can do it now or you can do it at your time of approval of the General Plan or the Rezone Petition. Genis: O.K. I would like to add the mitigation measure to that if I could find the table. Staff could find it quicker than I could. Kathe: I would suggest that we go to the Inventory Mitigation Measures on Page 65 and if you go through that you will find Transportation Circulation at Pages 66 and 67. Listed in there are the short range mitigation measures for transportation, and if you go on through to Pages 67 and 68, there are the long range ones. You may want to amend ... the green sheets, 66 through 68, it's the handwritten numbers. �: :know this is imprecise. Listed are mitigation measures 6, 7, 8, 9, 10, 11, and 12, they deal with transportation. Genis: O.K. Then I would like to add the mitigation measures that... Kathe: I would suggest that we may want to put it in under 7, there's been a deletion there so you could create a new 7 if you like. Seems to be an open spot. Genis: Perfect. That the trip generation from the site shall not exceed that analyzed in EIR 1045, specifically a.m. peak hour 881 trips, and p.m. peak hour 697 trips. Humphrey: Is that a motion, or what? Genis: That is a request to amend the motion to include that. Hornbuckle: I want to hear it again. Genis: O.K. That the total trip generation from the Auto Club site shall not exceed 881 a.m. peak hour trips, and 697 p.m. peak hour trips. Which would be consistent with the proposed General Plan anyway. Klotz: We feel it appropriate to point out at this juncture that the additional condition, because all the mitigation conditions... provisions are incorporated in the Development Agreement and as Conditions of Approval, would not be acceptable to the Automobile Club. This was the subject of a lengthy memorandum from Mr. Kathe addressed to the Mayor as to whether this condition might lawfully be added, and the determination was that no, it could not. Genis: Actually, I thought it was a different discussion as to how we would enforce it once the buildings were built, if it indeed was not met. And that was my concern because Mr. Kathe indicated that once the buildings were built, it would be exceedingly difficult to enforce, and that's why I want to get it in now and my question is then ... I questioned these rates earlier, and the Auto Club felt that there really was not only no justification to question these rates but they also indicated a high degree of dissatisfaction that we would take two additional weeks to look at these rates, and I thought would have indicated a high degree of confidence in their ability to achieve these rates. Now my question is if they do riot feel these rates are reasonable, what rates do they feel are reasonable so that we can get a traffic study that analyzes those because that's all we've got analyzed in the EIR, and if you honestly do feel that you will be generating more traffic from the site, then perchance we need a new traffic study. Klotz: I think you're turning the world on its head. What you're talking about is enclosing a condition, as Mr. Kathe went to considerable length to explain in his prior memorandum, that would not be a condition of approval, that is, one that deals with the present estimates, and by the way these are not rates, these are the rates determined by the City's own retained professional traffic consultants in agreement with City professional staff. Those in all cases represent estimates of future conduct. That type of thing applied as a regulatory day-to- 34 day restriction, which is what you are now proposing, would not be acceptable to the Auto Club or to any other business. As Mr. Kathe pointed out in his memo, that would be a unique condition never before applied to any other project in this City. It would also be novel under General Plan law and zoning law throughout the State of California. You are embarking on an experiment in planning law that would be extremely difficult. You're talking about asking the Auto Club to today make their $30 million investment and commit their company's future to Costa Mesa. But you're asking for the ability through this new mitigation measure to shut them down if those estimates ;prove untrue. Those, estimates are, although they are very soundly based, still only estimates. They are also dependent upon the actions of many third parties. Third parties that include their employees, who right now are responding very well to a set of incentives. Whether over the entire life of this agreement they would respond in precisely the same way, the Auto Club can't predict. They are also dependent upon the actions of other people who chose to pull into that driveway during the a.m. or p.m. peak hours. That is not something in the control of the Auto Club. You are suggesting that the phases of this project depend upon the subsequent actions of those third parties, and it's for those reasons we're doing the investment now, and you're suggesting that at any point in the future you be able as a regulatory matter, if those are exceeded, basically be able to deny the benefits of the project to the Auto Club. That simply doesn't work. And it's contrary to the whole body of California planning law. Hornbuckle: I'm having some real misgivings trying to figure out how we would enforce this particular mitigation measure at any rate. My ;mind is being boggled by the thought of trying to go out there on a regular basis and count trips and make sure that they're not exceeding trip generation. I just simply, don't know how we would do it practically. Genis: Well, don t we have a mitigation monitoring program as required by law? Hornbuckle: I think in the Development Agreement there are traffic counts that will be done at certain periods. Genis: There's only two over the whole life of the project, that's the problem. Hornbuckle: I agree, that could well be a problem, but I don't know that we can use the trips that were in the EIR on a daily basis. It just doesn't seem to me that that works practically. Genis: See, what I'm thinking is that they have talked a great deal about how great the carpooling is and how great the Transportation Demand Measures are and therefore traffic will not in fact be a problem. But what I'm hearing now is that they really have no confidence in that or their ability in the future to continue to implement those, and I find that very distressing because this whole thing has been predicated on the continuance of those measures. So I don't see how we can certify when their own attorney has gotten up and said, oh, there's a good chance they could make more traffic in the future. Hornbuckle: It seems toy be that it's not appropriate to do it in conjunction with the EIR because the EIR is supposed to consider impact but it doesn't necessarily say that everything that is in the EIR will continue to be exactly the same in the future. I honestly don't know how to meet your concern. Perhaps there's some way to do it with the project itself; it just doesn't seem appropriate to put it as a I mitigation measure on the EIR. Genis: Mr. Kat feeling is if the EIR ex, amounts of trips will : generation rate as oppc to assure that that uniq Had we gone back and or whatever, then we impacts but I could at there; however, there 1 so how do we do this? do you have a means that could address this concern? Because my ned these amounts of trips and we have no way of ensuring that these eed be the limit and particularly because we have used the unique I to a standard use rate that we would use Citywide, what can we do rate is not exceeded? Because we never examined any more traffic. amined in the ensuing two weeks, examined a doubling of the traffic ,uld have at lease had an analysis of that, and I might not like the ist certify the document because there would have been an analysis been no analysis of any more traffic that what we've got in the EIR d35 31 Kathe: Well, to begin with, the analysis we've done for this project is the same we've done since you adopted the General Plan. So in my view, we're now analyzing them like we've analyzed everyone else. The real issue here is whether you're comfortable with the program that City Council chose with the General Plan for dealing with traffic impacts. The program that was chosen was not to restrict the density of a project in the future but to deal with it through economic means such as trip fees and traffic improvements. In essence what you're proposing with your mitigation measure... the reality of it is what happens if they exceed the trip budget? Do we as a City then say to triple A, you must vacate your building. You must shut it down in order to meet the traffic... to reduce the traffic impact. If I look at the... for me, as the City Attorney, I'm to enforce these mitigation measures, I can use criminal or civil actions. I have to prove that they're violating these averages. I challenge Mr. Naghavi to prove that in a court of law. He may, Mr. Austin may be able to do that, I don't know. That's been a conflict I've had since we used the trip budget. As you amended the General Plan in the past, you got rid of trip budgets for the rest of the City because in some instances it just doesn't work. With this particular project, I don't know. The approach that I would recommend, and the approach that you've chosen in the past, are monetary incentives and that's the approach we used in the Development Agreement. If they exceeded, ;,they pay money. If they ... and then we use the money to fix it. That's how we've dealt with traffic here. I've called to other cities, I've looked around to see who uses trip budgets as an enforcement tool. The only one that I know of for certain is the City of Irvine, and I wrote you in my memo about that. I believe that the mitigation measure, if we were to make it part of the Development Agreement, that could be a way to restrict the traffic generated there and cause them to vacate their building or reduce occupancy to meet the trip budget. Those are the only ways that I can tell you how to deal with it. Right now, the General Plan and all our ordinances are set up to deal with it in a different way, and that's through monetary means and ridesharing. Humphrey: I perceive that right now we're looking at a mitigation process that, I agree with you, should in fact be part of this whole process. That we should not in fact just simply let things float off in never -never -land. We're also at an impasse which I disagree with because we need the entire Council to make decisions on this type of project. And I think that one of the things that we need to do is air our concerns about whatever parts of the process rather than let it dwindle without having an address. For that reason, and for that reason alone, I'm going to move forward with this project so that we wind up by getting an answer and we air the concerns that really are concerns about how we deal with out General Plan in this City, and whats important about this General Plan in our City. I think that if we put a mitigation measure at this point into the EIR that while it may address our concerns about the increased traffic, I think we as a Council need to make that address as part of the total documentation overall, and we need to do that as a concerted effort from all five of us when we're voting on that issue, as opposed to four of us in that issue because I think that we're at a point where we can either let this spin in the wind or we can take and make the addresses that we need to make. I for one have a variety of considerations that I plan to bring up as we get into those additional areas but the other side of that coin is that I think we need to move forward with this issue. And I for one would recommend that we move ahead with certifying the EIR without the additional mitigation measure and then put that mitigation measure into place with the entire Council involved because I think that it is an important issue that must be addressed and it must be addressed clearly by the total Council to make sure we move forward as a Council not so we move so we get trapped into a constraint here. Genis: Yeah, I don't want to get hung up on this again and be stuck and not really address the overall issue. I do have concerns, however, but I would like to get off the dime on this thing, too, 'cause this is really stupid. Erickson: I would support what Mr. Humphrey said, as well I support what you said about the low intensity of the residential and densities in your Mitigation .No. 1. I think that's important; however, on all the other items, I think we should address that with the project and there is a motion on the floor for approval of Certification of the EIR. I would ask that we do include. your Mitigation No. 1 about the additional units shall not result in intensification of the residential densities in any location which are in excess of those specified in the 1990 General Plan. And I'd like that left in. Hornbuckle: That was part of the motion. Genis: O.K. Hornbuckle: Madam Mayor, can I call for the question? Genis: I had just one other thing that I will approve it;however, I will be considering how we move in the future onimany requests to discertify, or whatever. O.K., call for the question. Clerk: Carried 4-0. (Council Member Buffa abstaining) Buffa: If we get awfully lucky, we might be able to keep our momentum going, but we'll see how it goes. I would like to move approval of General Plan Amendment GP -94-01A to redesignate property at 3333 Fairview Road from Industrial Park to Urban Center Commercial and the adjacent 9.7 -acre site from Medium Density Residential to Urban Center Commercial. And in moving that, also, move that we adopt Resolution 94-54. Erickson: Second and discussion. Genis: O.K. I am going to be offering a substitute motion, however. Erickson: Mr. Buffa,i in your motion would you add, as was requested by the Auto Club, the maximum FAR of .56 which is what their proposal is and that is in the development all along but just as part of the General Plan Amendment, I thought that was important, and it seemed to be very agreeable to the Club. Buffa: I wouldn'thave any objection to that. I'm just thinking out loud for a moment if maybe we could make that .6 only because if this is a 30 -year agreement, if 15 years down the road there's a slight increase or slight decrease that we're not back to another GPA since we invested whatever thought process we had originally in assigning that .65 FAR. Genis: Are you (inaudible) what you're original discussion was cause we have a request from Vice Mayor Humphrey. Erickson: I was just going to say earlier in the hearing, I did ask the Auto Club if the Auto Club, if the .56 FAR was jwhat they had requested. All the documentation in this Environmental Impact Report and the project, and I do believe it is a good project for the City, is based on that. I believe the Auto Club feels secure with the .56, and I see them nodding their heads. Buffa: Mr. Erickson, if it went to .56, would you support it? Erickson: I would. Buffa: .56 sounds) more than excellent to me. Humphrey: I have a number of concerns about the change of the zoning to commercial. I have a number of concerns about the impact on other properties in the north Costa Mesa area. It is a step that changes a whole area, part of the whole area, to relate to a different use of a significant increase and while this Council may not find it` difficult to not allow a precedent to be set, somewhere along the line somebody's going to come along and be able to press some other Council in the future into that process, and that's their prerogative. But we develop a General Plan that, while it's not etched in stone, why develop a General Plan if the first choice out of the box is to in fact alter the most sensitive area within the General Plan out front. Just simply to change that one. You couldn't have a better group of people, a better company, a better proposal come to this Council with this General Plan in effect than the Auto Club who everybody loves and thinks is wonderful. The 'reality is that we've heard a lot of people out here tonight say that on the project basis, not on anything special whether special interest group '. 37 that doesn't like or special interest group that does like it, certainly we've had a lot of people in here today that have in fact made the comment that they are very pro. And if I had to look at this room I'd have to say the vast majority of people in here, in this room, have been pro this develop and pro for very reasonable reasons most of which have to do with jobs and the economy and I don't disagree with those. Of course, we are looking at a 30 -year project, a 30 - year program, and while Mr. Buffa's point of whether it's .56 or .60 is probably not terribly telling but I would offer the lower density somewhat closer to what really exists. But I would be hard pressed to just simply turn over and not address that issue of whether or not we're going to increase the densities and then make it so it's just not noted someplace that this is a real concern on my part that we are going to start the whole ball rolling to tumble down, how do we say no to somebody else. Well, I got a really easy way to say no, and that's simply just say no. And I want to put everybody on notice that this kind of General Plan comes back down to forcing our hand at making some kind of previous commitment to one group; therefore, we are forced to do it with another group. I won't do that. And this bothers me a great deal because it is a project that is going to drive up fast traffic. We have now heard from the triple A that they are not positive they can control the traffic, and I understood that. I understood that in the first place, quite honestly. You can't predict 30,..years down the road, hell... we might not even be here 30 years down the road. But the truth"of the matter is, if we assume we're going to be and we assume their differences, and we assume that you're going to do your best to control that, I would like to make sure that we have assurances that that's not going to happen in the future, that we're not going to have to deal with major problems, and that you are in fact going to deal with the problems that come up. I'm not sure that I need to have you say that you in fact will deal ... you will, pardon me, you will just simply pay extra fees if you have extra trips because those extra fees may fall way short of dealing with some of those extra trips at that time and so I would like to make sure we have some commitments in the future that say if you overstretch the trips that you say you're going to do, that this EIR says you're going to do, that we have just approved, that you will in fact live up to your word that you have always done as we've heard from other people out here, that you will in fact make sure those problems are mitigated for this community. Because we have seen over and over again how everybody likes to drive through Harbor and Gisler right now, don't they? And that, of course, was supposed to be. real easy to deal with. It hasn't been dealt with and it won't be in the future. It will always be a problem, so I would look forward to that kind of process but I will be unable to look at an FAR that is not the .56, and I certainly will be unable to look at approving this GPA unless we have some kind of support for future traffic generation that would in fact lead to excessive traffic generation against what the EIR has already said. Thank you. Genis: I understand this includes the Findings of Fact with this particular resolution. I have a couple things. I would like to offer a substitute resolution using the yellow sheets, basically adopting the Industrial Park designation which actually was supported by our Planning Commission, I believe. At least they discussed it, and on a 4-0 vote did go for that. It's consistent with surrounding land uses, the existing Auto Club, everything south of South Coast Drive. It doesn't introduce an entirely new land use designation into a new area, and I would move that we go with the Industrial Park land use which is Attachment 9 on the yellow sheets, VII -1(b), and that further, we have a few changes on the Findings of Fact which would-be, the change in the mitigation measures that we adopted previously, which are scattered in different places, and on Page 22, the trip generation rates of the proposed project are comparable to light industry and in this Industrial Park... Buffa: Madam, Mayor, point of order. Could we see if there's a second to your motion? Genis: I didn't finish my motion yet. Buffa: Well, before we get into modifications of the findings and that kind of thing. Humphrey: I will second the motion for modifications. Genis: O.K. And the generation rates, well, actually since the motion includes the trip generation rates I guess it doesn't have to be in the findings. Page 24d where there's a reference to the Susan Street improvements, I believe we covered this in the previous public hearing but just in order to avoid any confusion in the future, if we would say, "In addition to the required trip fees, the applicant shall pay an equitable share of Susan Street...", and so forth. That actually, I believe, was a condition on the map, which is a standard tract map. But there has been a little bit of confusion expressed on that point in the past, and I just want to clarify that. On Page 26 where we have a finding that the project does not significantly impact Harbor -and I-405, to insert the same!,thing that we have in the above being the project by itself does not significantly impact... since at the top we say that it would contribute to deficiencies, we don't want to be internally inconsistent. Then moving ahead to Page 48, and I believe ... this was already suggested by staff, and that we also do everything in the staff attachment and some of this was already done in the staff attachment. Page 48, No. 1, where it says this alternative we can't do because it would require a GPA which is sort of nonsensical since what we're doing here is a GPA. Drop 'that finding and drop the similar finding on the next page that is essentially the same thing. We can't do it because we'd need a GPA, but instead adopt findings similar to what staff had regarding the fact that the alternative would require other people's involvement over which the Auto Club has no control. Because I think it makes us look kind of dumb to say things like that. And finally to delete the second sentence of No. 8 on Page 57, this is interesting, maybe; it was on. -..Page 51, and that's the rest of my discussion. Buffa: I won't be supporting the motion. I do want to offer a couple of clarifications. The Planning Commission in their special meeting tonight did not recommend the Industrial Park designation. They found the Industrial Park designation a feasible alternative to the request for a GPA. In their third motion, if you look at the minutes of that special meeting, they have reaffirmed the Planning Commission's May 23, 1994, recommendation of the commercial General Plan and zone. 'Secondly, my big concern with the Industrial Park designation is that we have invested, and by we I include our staff, the applicant, the applicant's consultants, and our consultants, have invested a tremendous amount of time and effort and money in coming up with an Environmental Impact Report and a great deal of study of a request for a General Plan Amendment to the Urban Center Commercial. The whole issue of the Industrial Park designation only came up figuratively speaking at the last moment just before the last meeting and I think it lays the City open to a significant possibility of a challenge and puts us at risk of quite an involved defense of such a challenge and a great expenditure of the taxpayer's money to do that. So, having invested 10 months of effort in studying one designation, meaning the Urban Center Commercial, I am extremely uncomfortable with basically a little flinch at the tail end of that whole process that says, well, actually let's not do that, let's do something else. The last comment I want to make is I believe one of the main reasons for doing this is a concern that Vice Mayor Humphrey stated earlier about precedent, and I must say that's not a concern that I think is a compelling argument because, as you know, both we as a Council and our Planning Commissioner's are not so much bound but certainly directed by land use law to ignore precedent. How many times in the 10 years that I've sat up here has someone come up and said I want to do this, I want a second story addition, whatever it is, from a major project to extending their garage, and they've very carefully gone down the block and taken photographs of their neighbors and said, see there's 12 people on this block, 4 of them have done this. We always say, sorry precedent has nothing to do with it. Your application is your application. We are basically directed not to include as findings in our decisions - well there's precedent, everybody else on the block did it. So the concern about precedent is basically saying that in the future either a Council would be seated or a Planning Commission would be appointed that don't know their job. And I don't think that's a very wise issue to be placing Planning decisions on. Erickson: A couple v do all the work and the PI designation. For the recc Club representatives this this evening at which tim designation because what feels the legality, and Mi you, but as far the design, originally discussed. M} is I thought it would woi do not want to jeopardiz evening shrugging their s eeks ago, I'm the one that made the motion to have the Planning staff inning Commission to have a special hearing to look at Industrial Park rd, I met with our Planning staff, our City Attorney, as well as Auto past Monday, and attended the Planning Commission special hearing the Auto Club felt uneasy regarding the Industrial Park application they feel is a dubious legality of it. In speaking with Mr. Kathe, he . Kathe please correct me if I'm wrong, I don't mean to paraphrase .tion itself, it's a more solid application with the Urban Center as we'd personal preference, and the reason I brought it up two weeks ago, k with the Industrial Park designation with the .56 FAR; however, I this project. I don't want the Auto Club to leave this room this loulders and going away. I don't want that to happen. - 1 F� Hornbuckle: I can't support the Industrial designation although I do appreciate your efforts and Councilman Erickson's efforts to try and find an acceptable alternative to the community, as well as to the Auto Club and to the City. I have some of the same concerns that Mr. Buffa has. In addition, when we adopted the General Plan, we adopted a designation of Urban Center Commercial with the intent in my mind at least that it might have a possibility to the properties north of the 405 freeway. I could certainly not see it being used in any other part of the City. I think we adopted it because it would fit properties such as the Auto Club which will basically be commercial. This is not going to be really an industrial property once the buildings are built. And I think it fits, it maybe makes everybody a little uneasy when we call it Urban Center, I think the word urban kind of makes us all a little uneasy. But the truth is that this does fit the property, and I think is a much more accurate designation and certainly has been much more well reviewed in the EIR. I do think that we do look at individual properties and we do look at the impacts of those properties, and we will continue to have to do that, whether it's us or some other Council sitting up here. And so I would prefer the Urban Center Commercial designation for this property because I think it fits. Genis: I would like to address a few of Council Member Buffa's comments. One of his comments was that he didn't want to see this project made vulnerable by addressing an industrial designation that had come up shortly at the last minute. I would question how vulnerable it may be for CEQA documentation when the Auto Club's own attorney has gotten up and expressed doubt about their ability to achieve the trip budgets, that we're finding here that they do not believe that they can, with confidence, state that they will indeed generate only the amount of traffic that was analyzed in the EIR over the long haul, and that alone I would think would cause some CEQA questions. There are also other things in the document. For example, in some places, they did an analysis of the existing General Plan to the proposed General Plan. Other places the analysis was vacant land to building the project; however, it wasn't an analysis of one part of the traffic and then another part of the traffic. It was like some utilities were designated, were analyzed under one of those sets of scenarios, other types of things were analyzed under the other two sets of scenarios, so there was no consistencies. There are a lot of little funny things in here that if someone really wanted to hammer this, they could. However, it certainly was not my object the last time and it's not my object currently; however, I would point out that this is not what I would consider an invulnerable document. There are a lot of things. Council Member Buffa, you stated that we have been expressly told to ignore precedent. We have on a great number of occasions made findings that the proposed whatever, you know the sign or whatever, was similar to other ones in the area and it would be actually depriving someone of their property rights did we not grant it. One case in point, for example, was the K -Mart sign where we pointed out that it was similar to these other ones. A lot of the signage things, we've .pointed out similarities to other signs in the cities and used that as a justification to approve it. We've done that with many types of modifications, variances, little permits for this and that, and basically in the meeting reviewed other similar approvals. And the times where we haven't, it's usually been, oh gee whiz, these were approved under a totally different set of rules, they're nonconforming, or they're different than yours or whatever. As a matter of fact, precedent has been a very strong part of our findings. So I would dispute that. But anyway that is ... I think if you're really concerned about legal vulnerability, I think this is a real little part of what you've got to be concerned about. Buffa: While I didn't participate in the discussion of the EIR for previously stated reasons, I did hear the comments and it is not, was not my impression at all that the attorney for the applicant said that he had any doubts that they would make those, we'll call them projections in the EIR, beyond the EIR we'll call them goals' The question that was presented to him were, would you accept those as absolutes which we could monitor on a quite regular basis and then you would somehow lose your Development Agreement in part, or in whole, if you didn't meet those absolutes. And that is what I heard him answer he was unwilling to do, and I certainly can't blame him for that. I don't know of any other applicant that would have done that. Had the attorney asked my advice, and fortunately for them most attorney's are smart enough not to do that, I would have responded, I'd be more than glad to accept those absolutes as long as those points where the goals are measured and were below those traffic counts, we get a refund on our fees that we've paid to the City. So the whole process of trying to estimate those traffic impacts, we've always accepted as an estimate then we have long debates about how accurate it is or it isn't. My view is, which I suspect you would not agree with, is that in traditionally they're overestimated. If we ever went back, which I've challenged this Council to do and the Planning Commission before that when I was on it, go back some years later that something like the Performing Arts Center, certainly Crystal Court, has been in operation for four or six years, and take a traffic count. See how you did with those estimates. Typically you wilt have, because of the way that the process forces you to, do it, you will have pretty much overestimated those impacts. But I never got the impression he was saying, no, we're not backing up those figures! He was saying, we're not going to accept those as absolutes because we've never imposed them as absolutes. I Erickson: Perhaps its my fault or whoever else is ... when this was originally brought to us many months ago by the! Auto Club, we voted to accept the application as Urban Center, and at that time if I had been forward thinking, or if I had thought of it, perhaps we could have gone with Industrial Park with a .56 FAR, but we didn't. And again, I don't want the Auto Club leaving this meeting tonight feeling that what we did does not give them the certainty they need to move on here in the City. And again, maybe I should have done that many months ago, it didn't occur to me till maybe a month and a half ago, but we are where we are tonight, and I still back the motion made by Mr. Buffa. Genis: O.K. Wei will call for the question on the substitute motion. Clerk: Failed to carry 3-2. Hornbuckle, Buffa, and Erickson voting no. Genis: O.K. Will the maker of the motion on the Urban Center accept amendments per the staff report that we j received this evening and the additional amendments which I had requested on the findings, particularly that .we incorporate all changes, of course, in the mitigation measures that we have had, that we enumerated previously, and that we would clarify on Page 24 that under d, that in addition to the required trip fees, the Project Applicant shall pay an equitable share of the construction of Susan Street. We had discussed that previously, and it was just a matter of making sure that that's in there so it doesn't fall down the cracks. On Page 26b, that the project by itself does not significantly impact Harbor Boulevard and I-405. On Page 48, delete finding No. 1 simply because it's nonsensical since we're doing a GPA. How could we say that the other alternative's no good because you have to have a GPA. And then 49, No. 1, once again delete and adopt the findings suggested by staff about needing to coordinate with people who don't necessarily want to be coordinated with. Buffa: I kind of need to see those written down, I can't follow all that. I'd be kidding you if I said I could remember all of those. I guess my one concern is, well one that the first is a standard question that I have learned to ask up here after more than a few years, and that is if I were to accept all of the modification does that mean you'd support the motion. Genis: Well... Buffa: I would like to ask counsel, some of the finding modifications do sound like housekeeping, some sound more substantial to me and I would like an opinion on some discussion from you about the modifications being proposed and are we on safe ground making of those kinds of modifications tonight, versus the kind of body of work that's been delivered to us. If not, is there some alternative to kind of have those looked at further perhaps between staff and the applicant. Kathe: Council Member Buffa, I was given this tonight so I haven't had a chance to ... when we do, Kristen' Caspers Petros and I, with the assistance of some other staff, wrote these findings laboriously, as you can see they're quite long. Over a two-week period of time, we cross-referenced them to the General Plan, the General Plan EIR, the project EIR, the addendum, the project description, and most of our zoning code, and I recognize many of these seem to be housekeeping and I can see the Mayor has put a great deal of effort into it, and I believe that many of them could probably be correct; however, at this point I couldn't give you an opinion as to whether; or not they're the appropriate changes to this document. The other thing, I would caution you, is this is a document that has been provided at the last minute to City Council, and I have Brown Act problems with it. I wonder if its been provided to the applicant since we are changing findings. I recognize that this is a minute motion by the Mayor, 1 41 and we can overcome the Brown Act problem by doing it as a minute motion ... I mean, as a motion right in the minutes so she could do it orally so I don't have a problem with that. Genis: I would point out that we at our dinner meeting got further questions on the findings so the materials that were provided to us by staff were provided this evening as well, so I would kind of question why we could get stuff from staff at the dinner as we walk into the chambers but... Kathe: That is an issue I've brought up with staff in the past as well. But getting to Council Member Buffa's question, these are well thought out, but I have not had a chance to review them in light of all the other documents that I mentioned. And I could not tell you whether or not they meet what they're attempting to do. I simply could not tell you that without reviewing the EIR, the General Plan, the General Plan EIR, and the project documents. I would defer to Kristen Caspers Petros who also reviewed and drafted these findings and would request her opinion as to the proposed changes. Petros: Thank you, Tom. I think Mr. ;Lamm has a copy of them, I believe. I've been listening to your comments and trying to see what the changes are that you're referring to on Pages 24, 26, 48, and 49, and I don't have problems with any of those changes. I'm not clear though which mitigation measures you wanted included in your motion ... which changes to mitigation measures. Genis: Now your saying ... the mitigation measures that we adopted in our previous motion. I wanted to make sure that these were just sort of whatever we needed to do at the staff level, to make that tidied into here, got done. Kathe: Point of clarification, would that be the mitigation measures that was referred to in Kristen Caspers Petros memo indicating... are those the ones you're referring to? Genis: The ones we adopted like 20 minutes ago. Buffa: Counsel, was that 6, 8, 12 Kathe: Yes, 6, 8, 12, and the only measure that I know for the record that wasn't adopted was the trip budgets mitigation measure that was referred to by Vice Mayor Humphrey to allow for certification. Genis: Yeah, but were the ones that had been suggested by staff and Council Member Erickson had mentioned and the addition to the housing unit one .where we said we weren't going to allow intensification of existing residential. Like it's a housekeeping thing to make sure that they got into here. Erickson: I briefly shared my sheet with Mr. Roeder who showed it to our Development Services Director, Don Lamm, and... Genis: He had one before the meeting. Erickson: I'm sorry. Perhaps Mr. Lamm ... my understanding, from Mr. Roeder, you feel that these are housekeeping items except for the second item handwritten Page 22, Item No. A. Genis: Except for I wasn't suggesting that 'cause the General Plan already has that. Erickson: I understand. But that's ... I just wanted to hear that and get it on the record for... Lamm: If I could follow all of this correctly, what I refer to for the audience was your handout at the dinner session that outlines your proposed change to Mitigation Measure No. 1 only... Genis: Which we already did. 42 Lamm: Which weialready did. O.K. The balance of the page references changes to the Facts and Findings which appear to all be somewhat housecleaning. I say that because it will not have a substantive change to the project. The second item. which I believe Council Member Erickson just referred to . . Genis: And I'm not suggesting that since the General Plan designation does include those. i Lamm: O.K. With that, I believe everything else on this page would not have a substantive change at all to your actions taken. -May I continue on to one other comment. You reference earlier, and I have to admit I'm somewhat unclear, the handout from staff tonight referring to the CEQA documentation from Mike Robinson to City Council. Genis: It had actually cleanup language on a lot of these same things. And I'm saying where the staff already had cleanup language I'm not suggesting anything further. And there were just a couple additional... Buffa: With all due respect, when you hold up a report to us with a blue cover page on it ... give me a few more hints. Lamm: This was handed out at dinner. It is dated today. It says from Mike Robinson to City Council. Now these are the corrected pages at the request of the Mayor for the Findings of .Facts that in the last few days we prepared to address what she would like changed tonight. Now did I understand, you want these incorporated as well as your other handout. Genis: Yeah, andl the only thing... because some of the things on my handout basically reiterated what you had and so there's no need to do those. So the only things that we really would need to add would be to ensure that all the mitigation measures that we adopted in the first part of this motion earlier this evening got incorporated, number one. And then number two, that Page 24, Page 26, and then 48, and 49. Lamm: That's all on your white handout tonight. So for the record, then your handout tonight that starts off with Mitigation Measure No. 1, everything on these. two pages then the Council incorporates into your motion. Genis: We're noti even looking at the second page, just the first page. Lamm: Secondly, the memorandum from Mike Robinson to the Council, and it says from Mike to Council just simply to transmit your corrected pages. Genis: That we discussed Friday, yeah. Lamm: Are Findings of Fact. There are no mitigation measure changes in here. These are simply nonsubstantive comments you wanted incorporated to bolster the findings for the CEQA document. Again, do I understand the Council to say you wish to have this included as well, which again this would not have any substantive change to. Buffa: Mr. Lamm, if I could ask you to back up just a little bit, on the page, the typewritten page white, where it starts Mitigation Measure No. 1, are you saying, and we'll see if the Mayor agrees, that the section under handwritten Page 22, Item A, is out. Genis: I'm not asking for that. Lamm: As I understand, the Mayor has removed that from consideration and is only proposing to the Council j everything else on that page and the second page. Buffa: O.K. And this one. This one actually does specifically discuss a recommended mitigation measure and is basically going after a 1603 permit from Fish and Game, that's one, Madam Mayor, I must say having spent a little time as the Director of the Transportation Corridor Agency, ,I wouldn't be willing to add to the motion because that could easily require a 60 -year Development Agreement before they could get to do anything. 1 4.3 Genis: Actually, I requested that because at the previous meeting I asked if that would be required, and staff said yes. And it didn't appear anywhere else. And I wanted to make sure that somebody had it in writing someplace so that when they needed to go get whatever they needed to go get, they knew that they'd get it so it wouldn't fall through the cracks. Buffa: Mr. Lamm, is that your recollection, and are you saying that this agreement, or this application I should say, would require a 1603 permit? I'm sorry, Mr. Robinson? Lamm: If I could answer. Yes, we're satisfied with that additional wording. For permits required, your consultant at the last meeting said a 1603 permit is required. All we simply did here is request that the Mayor was to put it in the text itself. So it's nothing more than clarification of what we have. In fact, in all these pages, the only changes are those that are underlined. There is really very little throughout this. These are just reprints of the pages, and you'll see just one or two lines on each page which are just technical changes. Nothing that substantially changes any other mitigation measure. Hornbuckle: I can't find a Mike Robinson memo. I have now looked through everything I've got up here, and believe me we've got a lot to look through. I think Mr. Humphrey's having the same problem. I don't think I got this at dinner. Buffa: I was going to ask the applicant's Counsel if they followed any of this, all of this, on these recommendations, and do you have an opinion on any of it or all of it? Klotz: (inaudible) Hornbuckle: Mr. Humphrey and I are somewhat handicapped in that we did not get this particular memo at dinnertime. And that explains why I couldn't find it. Erickson: Would it be a good time for a break? Everyone could review it ... we've got the EIR adopted, we could come back and handle the rest of it... RECESS Buffa: I believe when we left off I was about to ask the Counsel for the applicant of their understanding of the proposed modifications of the findings, and if you accept them, and/or have any revisions. Klotz: We have suggested one modification to the language referring to Fish and Game Code Section 1603, and with that one change the modifications are otherwise acceptable. Genis: I'll read it so that it will be in the record: Prior to issuance of grading permits or alterations to the adjacent flood control channel, the applicant shall comply with the applicable provisions of Fish and Game Code Section 1603. And that's logical so if they don't need one of those terrible permits, they won't need to get one. I had a question ... we have had several residents talk about the Development Agreement going away if the Auto Club went away, or talk about the General Plan designation going away if there wasn't a Development Agreement. And Mr. Kathe, if we were to adopt similar language to what we had with the Arnel agreement, specifically, if the Development Agreement is abandoned, expires or ... well, I would just say if abandoned, then the 1990 General Plan designations would revert, or something like that, to do that, should that be done within the framework of tonight's meeting? And that had been asked previously by a number of people. Kathe: If you wanted to make that change, you would want to modify Exhibit A to the Resolution 94-54, you've got to put something in there similar to that language that we had in the Metro Pointe... Genis: Is that on handwritten Page 5. Kathe: That's on handwritten Page 5. Genis: Of the green. 44 Kathe: Yes. And 12-20-93, Page 395, ther Metro Pointe. Every v terminated. Then the Ur development of this site. reflect the fact that there be abandoned. 'm referring to the language, the updated version of the General Plan is a provision in the General Plan for Urban Center Commercial for ,ting map and Development Agreements are banned and expire or in Center Commercial FAR's and trip rates shall govern in the future That was an effort by City Council in amending the General Plan to vas a potential that the Metro Pointe Development Agreement would Genis: So one of the concerns that we have here is that people keep saying well, we're not so worried about the Auto Club but we're worried about somebody else coming in and we're worried about if the Development Agreement never gets signed, what happens, and then somebody else comes in at Urban Center and builds like crazy. So would that address some of that concern. Kathe: Well, in essence what this would address would be...by adding it now to the General Plan Amendment you're trying to comply with the procedural requirements under the California Planning and Zoning law for notice and hearing. This would have to be by way of a (inaudible) motion here I, we didn't really know about it until this time. And yes, it could address the abandonment issue should the agreement ever be abandoned. That's correct. Genis: O.K. 'Cause this was something that had been asked about previously. I believe I asked about it in the past. Klotz: May I offer a comment on that? I think in fact that Mr. Kathe addressed this precise point under Item No. 2 of his memorandum dated June 16th. And he cited to you there the case of Scrutton v. County of Sacramento where he cited to you in that case, in his memorandum the case of iScrutton v. County of Sacramento, that case is directly on point, and it holds that you may noti so condition or provide for a project. You automatically revert to a prior General Plan designation. Actually, to be absolutely precise, the case involved a zone change; however, the considerations are precisely the same legally. It is not permissible to do what is proposed. I Genis: Now on this particular case, did this involve another land use agreement? For example, Development Agreements typically run with the property versus with an individual, and a question that I had in response to this memo was did this involve a zone change that went to Scrutton or did this involve a zone change that went to someone with a Development Agreement. Because they Development Agreement would go with whoever took it over, and therefore, as long as there was a Development Agreement with somebody who took it over, then the General Plan would lie there. And I'm not suggesting that we tie it to the Auto Club per se, just to the fact that there is a Development Agreement. Klotz: That really; doesn't make a difference. I would clarify that a General Plan Amendment and provisions of the General Plan applicable to a property... I Genis: Excuse me; could you speak a little louder, we're all having trouble hearing you. Klotz: O.K. A General Plan Amendment for a zone change applicable to the property, or for that matter, a final development plan or a conditional use permit, all run with the land and they're not affected by a change in ownership. A Development Agreement also is of the same nature. What you were talking about is a provision that would have the property .revert to a prior General Plan designation upon a change of .ownership. Genis: No, I'm not saying that. I'm saying if the Development Agreement falls apart for some reason it would I revert. It doesn't really matter who owns it. Klotz: No. And the evil is the same in that the legal failure is the failure to comply at the time with the mandatory notice and hearing requirements for adopting that sort of amendment. You may not today say that you are going to, on happening of some condition, whether it be the Development Agreement or property ownership that the General Plan designation is going to go away. You do, in fact, if the Development Agreement goes away, you would have a perfect Iright to on your own initiative initiate a General Plan Amendment and I 45 if that would be the appropriate thing to do, you could do it. What you cannot do is have it happen ipso facto merely by the result of this termination of the Development Agreement. It doesn't comply with the statutory requirements for General Plan Amendments. Genis: Then how could we as a mitigation measure for jobs/housing commit to providing 245 housing units someplace? Under a future General Plan Amendment. Klotz: Oh, it is well recognized that the most appropriate mitigation measure from any cumulative impacts, and that's really what you're discussing here... Gerais: Excuse me, I can't hear you at all. Klotz: O.K. It is well recognized that many times the mitigation measure that is most appropriate for impacts, including most particularly programmatic impacts such as housing element balance, is in fact the adoption of an amendment or the institution of a new policy by the agency. In this case, you're committing to processing such an amendment. Genis: No, actually we were committed by the conditions to actually do one but you're saying in this case we can't but in that case we can? Klotz: I think you should look at the mitigation measure. You're committed to processing that amendment. It does not commit you to ultimately adopting that amendment. Genis: That's a good point. Yeah, we do have a motion on the floor, and all those amendments are acceptable to you. Buffa: Actually on that Madam, Mayor, the ball is in your court. If I accept all those modifications to the motion then does that mean you're supporting the motion. Genis: I won't support it without 'em. Buffa: I understand that. There's no confusion on that. Is there any further discussion on this motion? Kathe: Point of clarification. I'd like to have Mr. Robinson describe the reasons for why the memorandum was generated outside of the 72 -hour limit under the Brown Act. Robinson: The (inaudible) prepared response at questions that were raised at a meeting with the Mayor Friday morning after the publication, printing, and distribution of the Agenda. Pursuant to the Brown Act, it was made available to the Council as soon as it was available, and is made available to the public. There are a few copies of my memo dated today and also Mayor Genis's additional changes to the Facts and Findings in the rack by the American flag in the lower right-hand portion there is a single -page with the Mayor's comments and then a four or five page memo from myself dated today. Genis: Mr. Kathe, this General Plan Amendment does include a trip budget but from previous discussion are you saying that the trip budget is unenforceable? Kathe: Well, as we've discussed in the past, we believe trip budgets are enforceable as planning tools when you are considering whether or not to approve a new project. And this is consistent with the City Council'policy in the past. Should you feel the trip budget of this project, via your environmental document as it estimates, is not going to be met, then you shouldn't approve the project. If you feel that it is going to meet the trip budget in the General Plan then you approve the project based on the estimates in your environmental document. So that's how we utilize the trip budgets. Genis: So, in other words, if we have any doubt as to whether the trip budget will be achieved, there is nothing we can do. I mean, even though we have a trip budget in the General Plan, and if it turns out to be double that, it's just sort of too bad? ' 46 Kathe: No, then portions of the City acc Genis: So we charge them fees. And then you adjust your development and other ingly. That's generally what you use General Plans for: probably have to reduce someone else's possibly. Kathe: Right. When they would come in, you would say looks as though our trips are off now. We're not going to give you the FAR in your General Plan. We're going to reduce it with a General Plan Amendment to offset that. That's what you use trip budget for, planning tools. Humphrey: So, as I understand it, what you're saying is that should they miss their planned number, that we are going to then have to take away trips available for other developers who have not yet developed their property. Kathe: Basically under CEQA, there's this thing called cumulative impacts, and the purpose of that section is just that. If we find that the cumulative impacts of this property are greater than we anticipated, we have to address that in an EIR for the other property that comes along say two or three years from now, and we have to deal with it then. You're correct, we would have to reduce their density as an option. There are other options available to you, of course. Humphrey: If, in fact,1 it became an issue where we had to increase trip fees to pay for the increased mitigation measures (inaudible) then they would be the people who were in fact having the new project to pay those increased fees or would it be distributed across the people who had not yet paid their fees for any given process. I Kathe: Well, as you know as I've discussed trip fees in the past, trip fees can only -be paid by developers who cause new impacts, and so the impacts from triple A, you couldn't charge them the trip fees. The way you would go after impacts generated by old development that really pick up the slack is through assessment districts. Genis: So, were we to adopt the Development Agreement as proposed, and were the impacts to be increased above the level projected herein, we really wouldn't be able to get any additional monies from the Auto Club, but we would have to accordingly get more money elsewhere. Since they're, locked into no assessments, they would be assuming the Development Agreement was locked into no assessment districts and no increases above the 228 plus the CPI or whatever that enaineerina index is. Kathe: That's right. When City Council made the decision to adopt the traffic impact fee of 228, which excludes freeway fees, you impliably decided to pay for impacts through the General Fund. So you're using alternative funding sources. Other than that 228. There are two types of alternative funding sources in this instance, assessment districts and the City paying for it under the General Fund. Assessment districts, as you know, would be a special fund but you have the choice. Genis: But this (inaudible) agreement as proposed would apply to everybody else, but the Auto Club would be exempted from any assessment districts. Kathe: The Auto Club's financial obligations are set by the Development Agreement. Genis: And as (inaudible) proposed, it would be limited to the 228 plus the engineering inflation index. Hornbuckle: There is a motion on the floor. Genis: Yeah, I know that. And I hate to say this but since we have a trip budget that the Auto Club won't commit to, and our City Attorney says that we cannot enforce ... I don't see how I could support this i And I'm real sorry because I would be able to support this -but we have a lack of confidence from the Auto Club in the trip budget, and we have no way to enforce it. And I would love to be able to do this but... I I I Hornbuckle: Your interpretation is somewhat different than mine. I don't believe that the Auto Club has ... that they don't support their trip budget. I think I've heard them rather consistently say that they do believe that they can achieve the trips that we have stipulated in the EIR and in the General Plan. I.think what you heard was an attorney speaking who would be foolish to speak for his client and say absolutely we agree to x, y, or z. And as we know attorneys tend to be rather cautious when making statements. I don't think we've heard the Auto Club say that, however. Genis: Well, the Auto Club's agent perhaps is what I should say. And I'm distressed by that. Its obvious that it's not going to make any difference how I vote here anyway because I can see there are three votes for this, but I just feel that if we don't have a means of being sure that this trip rate is indeed achieved I don't see ... I just can't support it. As a matter of fact, I don't even think I could support certification of the EIR without assurances that the trip rate will be achieved. I don't know. I'm really sorry 'cause I wish I could, and if we even have a condition now, we'll adhere to the trip rates or something, but I don't see a commitment to adhere to the trip rates and therefore will not be supporting the motion. Buffa: Just to clarify the motion then. Y My motion stands as originally stated which reflects the modifications to Conditions 3, 6, 7, 8, and 12, as were discussed in the certification process, and the staff memo with the 29(a) as modified with the applicant's suggestion on the 1603 permit. Klotz: And Mr. Buffa, that's with the .56 FAR. Buffa: With the .56 FAR. Genis: Anything further? Call for the question. Clerk: Carried 3-2, Humphrey and Genis voting no. Buffa: I would move the approval of Rezone Petition R-94-01 to rezone property at 3333 Fairview Road to Planned Development Commercial, and the adjacent 9.7 -acre site from Planned Development Residential Medium Density to Planned Development Commercial. Humphrey: Second. Genis: O.K. Is there any further discussion? I will just say I will support the motion since we now have a General Plan designation and it would be not logical to retain the other zoning. Call for the question. Clerk: Ordinance 94-10, first reading, carried 5-0. Humphrey: Did you call who the motion was by and seconded? Genis: I'm sorry, motion by Buffa, second by Humphrey. Does (d) become mute now? Buffa: Yes. Genis: O.K., (e). Final Development Plan, is there a motion on that. Buffa: Move the approval of Planning Action PA -94-15 with the modification as described in the agenda listing and the four -level parking structure with a Development Agreement for reduction of vehicle trips through a Transportation Demand Management Program. Genis: Excuse me, you combined (e) and (f). Buffa:, No. Genis: Oh, yeah. I'm sorry. Buffa: And as part of that motion to, I'm sorry (inaudible). Genis: Except for that the Development, Agreement doesn't have anything really about TDM's in it. It has two traffic studies, three years (inaudible), there's not commitment to having TDM's in there. There's no commitment to maintaining the trip budget. So how could that be? Kathe: We did do a memo on May 18th where we discussed that the language in the Development Agreement does waive the TDM Program, it simply waives the Conditional Use Permit with what we proposed was an equivalent alternative to the Conditional Use Permit annual review which is two separate reviews, after each phase is completed. So the TDM Program is not waived, it's the Conditional Use Permit. Genis: Modified. Kathe: That's ri Genis; As opposed to 30 annual reviews we get two reviews. I Kathe: That's correct. And I will note also that one of the reasons why, that we did that was the triple A's position that they are subject to the TDM Program under the AQMD regs, and they felt that our program was duplicative although we disagreed with them. Genis: Although if it were duplicative, all they have to do is give us all their papers, so it wouldn't be any, extra work. So you want it to be...and Mr. Kathe, inasmuch as the posted Agenda said we have al Conditional Use Permit, and Council Member Buffa is saying a Development Agreement; can you address this in terms of the posting of the Agenda and what the motion is and the Brown Act and all that good stuff. Kathe: We've reviewed that in advance, and we're confident that the Agenda had sufficient detail in it to cover this issue. Also, the fact that the documents that were made available as of May 18; 1994, so we've had over 30 days of all the documents clearly referencing the fact that the Conditional Use Permit would potentially be waived, as well as discussions in the Planning Commission on the same point. i Genis: So it's just a glitch in the Agenda that got posted. Kathe: I believe the Agenda's fine, and that it's sufficiently detailed. We've had two separate Agendas, and I believe they were both adequate. i i Genis: Well, my concern is if somebody read this and said Conditional Use Permit for reduction through a TDM, although the Conditional Use Permit might not be approved anyway, I just wanted to verify that it wouldn't lead someone to think that there was a totally different situation than there was. Kathe: Well, the object of reducing vehicle trips is still the same. It's just it's being done with the Development Buffa: To add to also includes adopting R Clerk: 55. Buffa: 55, Genis: O.K. Klotz: Quick poi Condition No. 7, which, on Pages 29 and 30 of th way into the staff report. motion after it was seconded by Member Hornbuckle, the motion .tion 94-56, Madam Clerk? PA -94-15 subject to conditions and findings. by Buffa, second by Hornbuckle, any other discussion? of clarification. We previously discussed the modification to i fact, was recommended by the Planning Commission and appears May 23rd Planning Commission minutes. That just never found its 1 Genis: Could you tell us what that is because we all have like six inches of documents and for anybody at any given time to find any page is probably not an easy task. Klotz: The condition is the condition for the building envelope which restricts the project buildings to a particular envelope, and what it does is it clarifies the reference to the exhibit, and its two exhibits Cl and C2, reflecting the fact that there may or may not be a required setback from the residentially zoned property for that parking structure. That's the only change, and I can read the whole thing for you if you would like. Genis: Please. Klotz: O.K. As revised and approved by the Planning Commission, Condition No. 7 of PA -94-15 would read, "Approval of this final development plan PA -94-15 includes approval to develop, construct, and occupy buildings totalling up to 500,000 square feet of gross floor area for office uses located within the office building envelope defined and depicted on Exhibit Cl to this final development plan. The approval of this final development plan also includes the approval to develop, construct, and occupy a.parking structure with a capacity to park up to 1,840 vehicles located within the parking structure envelope defined and depicted on Exhibit C1 or Exhibit C2. Exhibit C1 shall apply if a 20 -foot setback is required from the northerly property line, and Exhibit C2 shall apply if a 60 -foot setback applies. The office building shall not exceed four stories, or the height limit established by the office building envelope. The parking structure shall not exceed four stories, or the height limit established by the parking structure envelope. Permittee is approved to construct the office buildings in two or more phases in any locations within the office building within the office building envelope. Permittee is approved to construct the parking structure in two or more phases at any location within the parking structure envelope." End of revised conditions. Genis: Do we need to go back and change anything that we've already done in order to have that? Is this part of your motion? Buffa: Its eerie ... those are exactly'the same words I was going to use. Yes. The motion is so modified. Hornbuckle: And the seconder agrees with those changes, or additions. Genis: Further discussion? Call for the question. Clerk: Carried 5-0. Genis: Development Agreement 94-01. I have major problems with this. I would like to make a motion that we adopt the proposed Development Agreement adding on Page 10 where we talk about the things that would cause ... that would be a significant change to the agreement, (f) would be the abandonment of TDM's to reduce traffic impacts, 'cause there's nothing in the agreement that actually says they'll do TDM's. There's just the two counts on two days. Kathe: Point of clarification. That would be under Paragraph 3.7, Subparagraph (f) which is at the top of handwritten Page 24, typewritten Page 10. Genis: Where the different things that would make them subject to further review would be ... delete this constitutes, blah, blah, blah ... would be abandon use of TDM's to reduce traffic impact, and then where we talk about the ADT on Pages 11 and 12, and on Page... Kathe: Point of clarification. What are the changes on Pages 11 and 12? Genis: I'm finding where to stick 'em in. I had an arrow here. I believe it was under small letter (i) on Page 11 and under small letter (ii) under 12, although if you have a better place I would certainly defer to your judgement, would be that where we talk about square feet of new buildings ... and the trips that we're going to be generating and then to add, "however, in no case shall the peak hour traffic exceed that analyzed in Section 4(d) of Environmental Impact Report No. 1045, nor the trip budget designated under General Plan Amendment No. GP -94-01A", and that further we change the assignability clause, and I can't find Mr. Hutchin's 0 letter—I hope somebody else has it here ... to read that, "the sale transfer or long term lease of the property prior to issuance of Certificates of Occupancy for new development totalling 450,000 square feet of building area or more or termination pursuant to this paragraph shall not be deemed to occur if all parties agree in writing to the continuation of this agreement. " And that would be 26(e), Kathe: Point of clarification. Because this is a Development Agreement, we recommend that any proposed changes ;to the Development Agreement in advance of the motion be accepted by the developer because this is an agreement. Genis: That's true. Kathe: So we would, as a matter of procedure, request the Mayor inquire of the applicant if... Genis: Do you have a copy of Mr. Hutchin's letter? Buffa: I don't believe there's a second yet to the motion. Genis: Oh, well I'm finished with my motion finally. I Humphrey: I'll second the motion so... Genis: For discussion we can get our answers. Klotz: We just received this proposed language. I think a couple things need to be said with respect to assignment. First, you, of course, already have under the revisions that we've proposed after hearing this concern the right to review any. assignment of rights under the Development Agreement; however, you shall not unreasonably withhold that consent. That's a pretty fair provision. I trust this Council does not want to have the right to unreasonably withhold consent. That's a substantial concession, and it's actually contrary to the statutes respecting Development Agreements. Development Agreement statutes provide explicitly (inaudible) from 65868.5 of the Government Code that the burdens of the agreement shall be binding upon, and the benefits of the agreement shall (inaudible) all successors in the interest to the parties to the agreement. That's what the law generally provides. We have provided for an additional control. There is a serious question perhaps whether the concession that we're making here is not contrary to statute. But we're prepared to make it. But to suggest that you should have a greater right to control assignment I think is inappropriate. You already have that right of reasonable revie under the proposed revision to the assignment clause, and we think that is fully adequate protection. Now if you want a reaction to Mr. Hutchin's language, you're going to have to give me a minute or two to read it further. Genis: O.K. And then also a reaction to those clauses that I had where a change would be considered an abandonment of the TDM since this is supposed to be out, implementation thing for the TDM, and an increase in the traffic above that analyzed in Environmental Impact Report No. 1045. Klotz: O.K. We would need to see that language also, and should this proceed any further, we would like the opportunity to review the precise language proposed. I think one of the factual predicates for at least part of that, however, was that your assumption that the only review you're going to get and the only commitment to a TDM program is in fact through the two reviews occurring after completion of each phase. That's incorrect. You have revised conditions with respect to the TDM program, they're among those that the precise language was revised this evening, 6, 8,1 and 12. But those particular mitigation conditions commit the Auto Club to continuing its pre',sent TDM program and further commit them to providing you with Reg 15 reports, as you suggested might occur. The only language changes that really occur here were that they were going to also comply with the Development Agreement provisions which slightly modify your otherwise applicable TDM program. So those commitments are there to the extent your motivation rests on that; I believe that's erroneous. L 51 Genis: Well, 6 and 8 actually don't, but 12 does indicate that you will submit an annual TDM in accordance with Reg 15; however, if Reg 15 goes away, then you know we're all going to be driving electric cars in 1999 like they all said. And I'm not going to hold my breath waiting for that. But if we do, say, develop some other means of controlling the air pollution, we'll still have the congestion, and so I would be real concerned about abandoning TDM. Klotz: I did fail to cite the real provision that you ought to look at, and that is Mitigation Measure No. 11. Genis: O.K. You're right. O.K. And these shall be incorporated into the ... they are incorporated into the Development Agreement? Klotz: They are indeed. Genis: That's true, you are correct. Those two, that's actually unnecessary then. I do have a concern about the trip budget, however. There really isn't a commitment to maintaining that, is there? Klotz: I believe both Mr. Kathe's memo on the subject, as well as earlier comments we offered addressed that concern. As has been suggested, it is not that we don't think those are very good projections, it's that we cannot absolutely guarantee that outcome and the remedy we propose and the staff and the Planning Commission has proposed is a financial burden that would accrue to increase trip fees if we are unable to meet that. Genis: See, my concern is that when I hear what people have paid to comply with Reg 15, $228.00 a trip is a real bargain. There are companies that have paid millions and millions. in fact, you probably have spent a lot of money on your TDM, or the Auto Club has on the incentives for employees and so on and so forth. And since those are ongoing annual costs, $228.00 all at once is probably a pretty good deal considering Reg 15, Klotz: I'm not sure I understand the point because of course we will continue to be subject to Reg 15, we'll fully comply with it and bear its cost. And we're also independently saying that we will continue that program as a condition... Genis: Yeah, its Condition No. 11. And have you had further opportunity to look over Mr. Hutchin's... Klotz: You would have to give me a moment to do that. Buffa: I'm not going to be able to support the motion as stated but what I would object to most strongly is the suggestion that the addition of words that we abandon use of TDM's to reduce traffic impacts. There is a record for this application which in my mind from the start has far outweighed and far outweighs any of the kind of forward looking projections that we normally do in the environmental processing and that is, this isn't a new company coming to town. This company's been here 12 years. Their Traffic Demand Management ... we throw this kind of alphabet soup around at people but what TDM programs mean is an employer that voluntarily does things like flex hour schedules, people come to work at different shifts to reduce the traffic impacts, carpooling, bicycling to work, encouraging all that voluntarily. The Auto Club program is the most successful by far I've ever seen. It is, in my estimation, primarily why there is, at a facility that is large, everything is relative. but its a large facility with about 1,000 employees out there. I have marveled for years how you get people in and out of that facility because you just never see a human being in a car moving in or out. I suspect its either a series of tunnels or whatever but it's amazing. The current impact in terms of traffic impact of the existing project is absolutely zero. There is no one that moves in and out of that facility that I have ever seen. The primary reason for that is the TDM. And in essence by saying, well you're not going to use that as a traffic mitigation measure in the Development Agreement or anywhere in the application, is really a slap in the face to a company that has gone absolutely overboard in enacting that and saying, you may as well not bother with that. You may as well just be prepared to write a big check or whatever because its not going to get you anywhere. We're not grateful for that. We don't appreciate it. You can't spent five years, 10 years, 12 years keeping the maximum number of trips off our streets at peak hours, and when you come in with a request, we're going to ignore that. We're going to say no, we don't like that because we don't trust you that you're going to keep that program in place. I can't support that, and it is not an Auto Club issue. It's an issue to those of us that are king in the trenches of traffic and how to control it, and have it work, and whether you're an infrastructurist or a behaviorist, those are the two schools of traffic control, TDM or the behaviorists. How do you get people to get to work and back and change their habits maybe. It says to a company that sends a strong signal, don't spend a lot of time doing that because when it gets down to the skinny, we're going to say, oh forget that, we're going to ignore that. I just can't do that. I think it's a very bad idea both in terms of the City and in regional terms, as far as what we're all trying to do traffic - wise, this company has proven for over a decade with ... that at least with the current configuration, they will put zero impact on the streets, and that somehow has to be recognized. i Genis: Council Member Buffa, what I'm saying is that whoever would be subject to this agreement in the future, whether it be Auto Club or someone else, could not abandon the TDM's without an alteration to the agreement, and I think that's consistent with what you said, is that the TDM's are indeed very important. They appear to be fairly effective, but because we do have an assignability clause, someone else who took over might not be able to do 'em. Or they might not want to do 'em at all. And, therefore, I don't think it's discouraging anyone from using TDM's, it's just putting something in writing that is being done now, and we have every reason to believe would be done in the future so long as the Auto Club is there; however, what guarantees do we have for the future? Buffa: I understand that Madam Mayor, but I don't think the wording you've chosen said that. Genis: Well, under 3 - 7 if approved, anything in the existing development shall be incorporated as an addendum to Exhibit C, and unless otherwise required by law, a change to existing development approval shall be (inaudible) and not require an amendment to this agreement provided such) change does not alter permitted uses, increase the density or intensity, increase the maximum height, delete a requirement for reservation of land for public purposes, and I would add to that, abandon use of TDM. I think that we'd all consider a minor change, and we would want to make sure that nobody ever did while they were governed by this Development Agreement, Buffa: Are you adding that as a Section (f), or as an add-on to (e), because my reading of it ... if you read it as an add-on to Section (e) which starts, "Constitute a project..." Genis: No, I was suggesting it as an (f)... do you think it would fit better as an (e)? Buffa: No, I wouldn't... that was the basis of my objection. Klotz: You did ask for further comment with respect to Gene Hutchin's proposed change as set forth in his correspondence. For the reasons we've stated before concerning the existing ability of the City under the proposed language to review assignment, for the reasons stated before, you already have the ability to review proposed assignments. This language goes far beyond that, providing for automatic termination as in a special agreement. That I believe is simply too great a concession to ask at this time. Remember, ordinarily this agreement's going to run with the land automatically by virtue of state law. You're going to have the reasonable right to review any proposed assignment under the proposed language; language that is being suggested here would basically provide for automatic termination and prevent any assignment. That is not a change that, the Auto Club is prepared to accept at this time. Genis: I think that part of the concern as you heard expressed by all the people out there is that we feel the Auto Club has been an asset to the community, and we have confidence in their TDM's and their practices, and the fact that they have so far outshone all the other companies around here in their ability to control their traffic, makes us concerned about other people who might come along, and I think part of the concern is if you go back to, say, the book of Genesis you see Jacob who really loved Rachel, and he worked seven years to get her as his wife, and then when it came down to the wedding, they put a veil on him and their father 1 53 switched, and he ended up with Leah instead. And we want to make sure that we haven't been sitting here with Rachel all this time who we dearly love and then find out we got Leah. Klotz: What I think you ought to take comfort in, aside from your right to review any assignment is the fact that even if someone were to meet your standard for assignability and you were to accept that, they are going to be subject to all the conditions of approval, all the limitations, all the commitments being made through those conditions, including the continuation of the TDM program. It is not going to go away if the landowner changes, even if you consent to the assignment. Erickson: I have a question for Mr. Kathe. Mr. Kathe, we've heard several times this evening about the phrase "unreasonably withheld" and that what is in your memo to us dated June 2, 1994. What would that mean for a future City Council, to look at the reasonableness of an assignment. Kathe: I was the one that proposed that term to Council Member Erickson and which later ended up in the agreement. What we tried to do in answering your question was look at this term as it's used in other agreements; and I, as I explained it to the Council Member, we indicated to him that we would look at the spirit of the agreement—what was the purpose of this agreement, what were we trying to accomplish. So here, we believe it would be reasonable for the City to look at the type of business, what type of traffic that business would generate, whether that business is consistent with the General Plan Amendment that we gave to triple A. All those things can be considered in my opinion to be reasonable. I'm sufficiently comfortable with this provision. I believe that the triple A is giving up a substantial concession. We do have a ... and I have lobbied for this language consistently throughout the negotiations. Normally their entitlements they could transfer them by right without any assignment. The only reason that I felt and recommended that we have an assignment provision such as this is because the agreement is for 30 years. And I'm comfortable that the City is receiving very good protection of its rights with these provisions. Humphrey: Are you therefore saying, Mr. Kathe, that a reasonable denial would be based on the fact that a business could not provide the same traffic controls, no matter what that business might be above and beyond what is already allowed, it would be are reasonable denial premise. Kathe: Yes, in a nutshell, what we're looking at here is the spirit of the agreement. The spirit of this agreement is a triple A type of business with its traffic configurations, the type of good neighbor, you know, all that good stuff. I mean, this is pretty open-ended language to get triple A to even agree to it was quite a concession, so I believe it's very good language for the City. Humphrey: And further, could you defend that in court? Kathe: I wouldn't have approved it as to form and legality if I didn't believe we could defend it. So yes, I believe we can defend this language. Humphrey: So you're satisfied that the assignability clause is such _that we have adequate protection, even if tomorrow, I want to use this as a premise, I do not think that Auto Club has this in their mind so please don't take it that way, the world is real that tomorrow Brea could come to `you and say ... oh, we've got 55 acres that we're going to give you free of charge because we want your business up there, and we're going to; do that. That's tomorrow after tonight, that's not tomorrow being sometime in the future, and we have done that process, and there has been not one stick of concrete put into the dirt anywhere, and in fact another business ... I could not fault the company who had the opportunity to get a windfall of 50 acres of free land to take that option. I couldn't fault anybody for that kind of a process. Especially if it's real good land. But the process is that we then wind up by not having triple A on this piece of property, and we certainly have the possibility of people that exist there that I want to make sure that our assignability control is such that we are not trapped with somebody who generates a large amount of traffic more than triple A would. Kathe: Suppose triple A wants to sell it to UPS. Yeah, you'd probably have some good rights to say hey, they're going to be generating 30,000 more trips or whatever it is. Again, � y SyA n 54 we're looking at, if you look at any assignment clause in other ... this is a classic case of say, you were a tenant and you wanted to do a sublease or assign, you know the landlord has the right to look at the tenant to see if it's within the nature and scope and spirit of what he intended the use to be. For instance, suppose they came and they wanted to have heavy industry with acid uses or something, I mean, there's so many other kinds of uses at that facility that may be consistent... but right now, it was Industrial Park, but now its Urban Center Commercial, suppose someone came in' and said they wanted to put in a shopping mall, I mean that would be a little different than triple A use. You could probably say hey, we don't want to approve that. Humphrey: I want to make sure ... I hear the word reasonable floating around, and my concern about the word reasonable is how is that enforced. Because the reality is that I can make the argument that if they get a perfectly good offer from a perfectly good ... Dun & Bradstreet, you guys are an example, but; Dun & Bradstreet in all their prior places have demonstrated ... have actually generated 40 percent more traffic than triple A does because of their TDM's and all their benefits and what have you, that if they cannot comply with those kind of restrictions that they in fact will not ... we will not fall out of the envelope of reasonables by denying that. Kathe: Well, again we go to the intent of the party. This is an agreement, you know mutual, everyone has to agree to agree then we get this agreement, the intent of the parties. Your intent, I mean all .this stuff we're doing in the record here shows the intent of City Council. The key here is what's unreasonable for the City Council to deny the assignment. And if you could come up with facts to show that it would be unreasonable to have that type of use, that type of business because it's inconsistent with all these findings that you guys have made, then I think you would have a sound basis to deny the assignment. Genis: Mr. Kathe; one of the things that came up in this discussion is what the assignee would be using the property for. But there's nothing in this Development Agreement, but really limits it to the mix of uses that the Auto Club has now so how could one justifiably... Kathe: It does. This agreement incorporates by reference all the other approvals you have just done. Genis: Although none of the other approvals confine it to this mix of uses either. Kathe: Sure does. You had certified in the EIR. That's incorporated by reference. You did findings... Genis: Except for iwe already found out that the trip budget in the EIR... Kathe: There again, we're talking about usage. You've indicated in all your documentations this is a single user, general office. They have a great TDM program, all these different characteristics. ! You got everything incorporated, this is the icing on the cake. Everything else is put into this agreement, that's why this is last. Genis: So you would feel that the provision... like (e) say that would constitute a project requiring a (inaudible) or; supplemental Environmental Impact Report. Kathe: You've got it, that's exactly right. Genis: That would cover changing to a shopping center even though... what discretionary approvals would they need though, because they would already have a GPA; they would already have their zoning ... oh, they need their plan development approval. Kathe: All this thing that you just did, that's all incorporated by reference in this agreement. This is just a' cover sheet. That's all this is. Genis: Also, under this no sale or transfer or assignment of any rights or interests under this agreement shall be made unless made together with the sale transfer or assignment of all or a part of the property. What happens if they develop everything on the one side of the channel, sell off the other to open another parking structure on the easterly side of the channel... Kathe: You can't do that ... under the development... that was why we did this development envelope. The envelope theory was something that I thought up with the attorneys for triple A to give certain teeth to City Council that when you say parking structures over there, it's there, and when you say building is over here, its here. You can't shift it around. Genis: Then why is this thing about, or a part of the property? Drop that? Kathe: Well, no. No I want that in there because I don't want them... suppose they want to get rid of the open space or suppose they want to sell off an acre or two acres and yet still be able to get their parking in there and need their envelope. And they sell off acreage to someone else. That's what that's in there for. That protects the City. Genis: But this says ... no all it does, it says that the Development Agreement goes with any property that's there. How does it protect... Kathe: I don't want to ... the reason we have that language in there is so they don't piece meal the project away by transferring it away:;;, That is there for the City's protection. That language I would insist on. I mean it protects us, trust me, it protects us. Genis: My concern is that we're even talking about selling off part of the property. would say no part of the property shall be sold unless you have the whole kit and caboodle. Kathe: Well, but we have many scenarios, and I hate to speculate on them. I mean, in essence, triple A may be acquired by another insurance company. -Suppose they do mergers and acquisitions ... I mean there are so many variables in this agreement, we're attempting to project it out for 30 years. Given the development envelope, all the conditions, all this other stack of stuff that's been incorporated by reference, there is no way somebody is going to buy this property in parts. They're going to take it together but I insisted on the part language because I wanted to make sure that we kept it together. And that's why it's in there. Hornbuckle: I think we have a motion on the floor but I've forgotten what it is. Genis: Actually, I believe I made the motion. It included the assignability language suggested by Mr. Hutchins in his letter of June 20th, 1994; it also included No. f under 3.7 as one of the things that would not be considered minor would be abandoning the TDM, and it had something else. Under these two clauses where we talked about paying the extra ... paying $228.00 per trip for any trips over to add that; however, in no case would the peak hour traffic examined in EIR 1045, Section 4(d) be exceeded. Humphrey: We have approved a Urban Center Commercial with an FAR of .56. Because in our General Plan we have it as, listed as .60, and a potential future owner realizing that triple A is only going to use .56, but can a potential future owner in fact push that to .60 so it would be absolutely consistent by court function. Kathe: No. They could not do that. This agreement binds them to .56. Any minor modification that exceeds the development envelope which is based on the .56 would cause a need for discretionary approval and another review by City Council. Buffa: I need clarification ... maybe I missed it, but the last modification you mentioned this time, I didn't hear when you made the motion, and I'm not sure about the 1045 requirement, and I... Genis: I had some reference to that, I'm not sure if I worded it just that way. Buffa: I'm not sure if we ever heard from the applicant about whether or not that would work. Klotz:. It would not. May I also offer a clarification because I'm not sure you solicited our comments on the earlier provision with respect to adding a subparagraph (f) to Section 3.7. Genis: About the TDM's, yes. Klotz: That also would not be a desirable change but it also is one that you do not. need. The reason for that listing, those 5 items (a) through (e), is those are the mandatory requirements for Development Agreements. And what we're saying here is if we're not increasing the effects under a Development Agreement and its statutory terms, that you don't have to come in for a Development Agreement amendment. That's quite a different thing from saying we don't have to come in to get your approval. And we absolutely would. Under the other provisions of this agreement, it is very clear that we remain subject to all normal requirements for subsequent development approval. And that's a defined term. If we were going to delete the TDM program which right now is a Condition of Approval, we would have to return for that. The only difference is, we wouldn't have to get a Development Agreement and go through this special; and very cumbersome process instead the TDM program is part, to use your example, of the Conditions of Approval for the final development plan and we would have to seek a modified final development plan in accordance with all the City procedures in order to do that. i Buffa: I would offer a substitute motion because we're essentially stuck in a circular argument. If the applicant doesn't agree to the Development Agreement, we're essentially making a Development Agreement with ourselves, that the Development Agreement with your modifications excepting the references to termination in Mr. Hutchin's letter and the issue of banning the use of TDM although noted that the applicant has stated that he believes that requirement is covered elsewhere. Genis: So what is your motion? To do it as proposed here, or which modification? Kathe: Point of clarification. I have to... Council Member Buffa, there is more to her motion than that. She has proposed changes to Page 11, Page 12, with reference to trips; however, in no case shalt trips exceed the trip budget in the EIR. There's a lot of other language that she's proposed. Just wanted to make sure that you understand that. Buffa: I need you to restate those, Madam, Mayor. Genis: I think he already said (inaudible). I'll restate what they were. It was ... actually, I'm not quite sure what your motion was. Buffa: I believe the applicant just said that he was not agreeing to the 1045 references, and to be perfectly honest'I don't remember your other amendments. Klotz To make this as brief as I can, none of the proposed changes are acceptable to the applicant. I tried to provide explanations for that. Buffa: Then Madam Mayor, I will withdraw that motion and offer a substitute to the substitute motion with the Development Agreement as it stands. Genis: There hasn't been a second yet. 1 Hornbuckle: I'll second for clarification. Genis: Motion by Buffa, second by Hornbuckle. Hornbuckle: May I clarify something. Mr. Buffa, we had a memo from Tom Kathe dated June the 6th which was a suggested revision suggested by the Auto Club which had to do with assignability. I presume your motion included that assignability, the new clause. I Buffa: Right. It is the revisions... are we looking at the same thing? It has these grey crossouts. Yes. I Kathe: Well, in anticipation of this moment, I did at the suggestion of one of the Council Members draft up a proposed motion that would accomplish that, and I believe Council Member Joe Erickson had my handwritten notes that I did a few minutes ago. And I think as Council Member Hornbuckle indicated that would be correct. The motion would be something to the effect, not to approve the Development Agreement, it would be adopt the ordinance approving 1 the Development Agreement as designated ,in Report 94-46 of the City Attorney's with two changes. The first change being the change as to assignment indicated in our memorandum of June 2nd and the language as contained therein, i.e., Paragraph 2.4, the reasonable assignment clause. And I believe there was a second, small change that I indicated. Buffa: Mr. Kathe, you make a reference to deleting Paragraph 5 which the applicant stated they're not agreeable. Kathe: O.K. Then the only change would be as to Paragraph 2.4. Buffa: And also, there's mention of after adopting the ordinance, oh, we did this already. That's folded in with the EIR. So that's acceptable to the maker. Hornbuckle: Mr. Kathe, this isn't an ordinance is it? It's just ... it's not listed as an ordinance on the agenda. Kathe: We have the proper notations, all the documentation. The Development Agreement in and of itself has to be adopted via an ordinance. So you are approving, and if you take a look at the packet, it would be page ... if you take a look at the Report 94-46, there is an ordinance attached, and the ordinance does adopt ... if you take a look at the end of that you will see there is an ordinance, or a resolution whatever you want to call it, I'm looking for it ... its attachment.. Exhibit 2, circled Page 8, on my report which—and the Clerk should have a copy, Ordinance No. 94 --An ordinance of the City Council of the City of Costa Mesa, California, approving Development Agreement between the City of Costa Mesa and the Inter Insurance Exchange of the Automobile Club of Southern California. Now, this was provided to the City Clerk's office on May 18, 1994, and to City Council. It was also attached to the cover memo, at least to the Planning Commission, on May 18, 1994. We do ... it meets all the requirements of the Brown Act. It has been properly noticed, and you can approve it tonight. Hornbuckle: Mr. Kathe, I think it was attached to our Agenda materials for the meeting two weeks ago, and we didn't get that part reduplicated. Kathe: Our efforts to save money on the paper and stuff. Buffa: That's acceptable to the maker, Madam, Mayor. Hornbuckle: And the seconder. Genis: O.K. We have a motion by Buffa, a second by Hornbuckle. Humphrey: I'm not going to beat a dead horse any longer. I will be supporting this motion because, bottom line, I've been assured by Council of the City that we do have adequate ways to control the assignability, and that the reasonableness factor will not in fact interfere with our ability to deal with that property fairly and equitably for all concerned, understanding that things do change in the business community in the long run. I will be perfectly happy and look forward to a long and healthy and happy life with the triple A in Costa Mesa. Genis: I will not be supporting the motion because one of the findings to be made is that the Development Agreement is consistent with the objective policies (inaudible) and programs specified in the General Plan and with the General Plan as a whole. The General Plan does specify a trip budget; however, the agreement actually provides for exceedance of that trip budget upon payment of fees, and therefore, I cannot consider it to be consistent with the General Plan, and therefore, I will not be supporting the Development Agreement. Call for the question. Clerk: Carried 4-1, Genis voting no. And its first reading to ordinance 94-11. Buffa: I'd like the record to show that I'll be abstaining from the consideration of the Tentative Parcel Map. Hornbuckle; I'd like to move approval of the Tentative Parcel Map S-94-120 subject to conditions. Genis: Second. Motion by Hornbuckle, second by Genis. Discussion? Call for the question. Clerk: Carried 4-0. Buffa abstaining.