HomeMy WebLinkAboutCC Ord 1391 1995-03-27
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ORDINANCE NUMBER /39/
AN ORDINANCE OF THE CITY OF SEAL BEACH
APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SEAL BEACH AND RON
BENNETT FOR THE 322 MAIN STREET PROJECT
(VARIANCE 94-7)
THE CITY COUNCll.. OF THE CITY OF SEAL BEACH DOES ORDAIN AS
FOLLOWS:
Section L The City and Ron Bennett desire to enter into a development agreement pursuant
to Government Code Sections 65864 through 65869.5, and Article 27.5 "of Chapter 28 of the
Code of the City of Seal Beach, California with respect to that certain real property commonly
known as 322 Main Street, and more particularly described in the proposed development
agreement, attached hereto as Exhibit A.
Section 2. The City Council held a properly noticed public hearing regarding the proposed
development agreement on March 13, 1995.
Section 3. The City Council hereby finds that the proposed development agreement is
consistent with the General Plan of the City of Seal Beach, and that no Specific Plan is
applicable to the subject property.
Section 4. The City Council hereby approves and incorpotates by reference herein Resolution
95-3 of the Planning Commission of the City of Seal Beach, dated February 22, 1995, attached
hereto as Exhibit "B".
Section 5. Based upon the foregoing, the City Council hereby approves the proposed
development agreement, incorporated by reference herein and attached hereto as Exhibit" A " and
authorizes the Mayor to execute said development agreement on behalf of the City.
Section 6. The time within which to challenge the subject development agreement is
governed by Government Code Section 65009.
PASSED, APPROVED AND ~OPTED by the Ci~ncil o~ty of Seal Beach
at a meeting held on the ,.:J 7 - day of '4.A.Jf , 1995, by the
following vote:' )
AYES:
~
Councilmembers
NOES:
Councilmembers
ABSENT: Councilmembers
Ordinance Number ~~
ATTEST
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CERTIFICATION \\\\-....~
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STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Joanne M. Yea, City Clerk of the City of Seal Beach, Ca1ifOmi~ do hereby certify that the
foregoing ordinance is an original copy of Ordinance Numlri.l '" ~ on file ~~
the City Clerk, introduced at a meeting held on the ~- day of
1995, and passed, approved and by the City cU ~ City of Seal Beach at a
meeting thereof held on the,< day of ~ . 1995, by the following
vote:
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AYES: CouncUmem
NOES: CouncUmembers ~~, .
ABSENT: CouncUmembers 'tX"t~
and do hereby certify that Ordinance Noli1L has been published pursuant to the Seal Beach
City Charter and Resolution No. 2836.
J M. Yea
~Clerk
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Ordinance Number Ic!?/
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~ITA
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
CITY OF SEAL BEACH
DEVELOPMENI' SERVICES DEPARTMENT
211 EIGHTH STREET
SEAL BEACH, CA 90740
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_ ...-or__.. .._.. G.._ . c:.dtl'lll....... ...-or__ _.... ......... -. T.......
CedI IlmJ.
(Space Above for Recorder's Use)
DEVELOPMENT AGREEMENT
(Pul'SllaDt to Goyermneat Code
Sec:tiODS 65864 . ~.S)
This DEVELOPMENI' AGREEMENT ("Agreement") is entered into between Ron
Bennett, Developer and Property Owner, (hereinafter "Developer") and the CITY OF SEAL
BEACH, a municipal corporation organized and existing under the laws of the State of
California (hereinafter "City"). Developer and City are sometimes collectively referred to berein
as the "parties."
RECITALS:
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized terms which are defined in
this Agreement. The parties intend to refer to those definitions in conjunction with the use
thereof in these Recitals.
B. Government Code Sections 65864 - 65869.5, ("Development Agreement Law")
authorize the City to enter into binding development agreements with persons having a legal or
equitable interest in real property for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private participation in comprehensive
planning and reducing the economic costs of such development.
C. Pursuant to Government Code Section 65865, City has adopted rules and
ngulations as Article 27.5, commencing with Section 28-2751 of the Code of the City of Seal
Beach, California, establishing procedures and requirements for consideration of development
agreements.
D. Developer is the plOposed developer of the Ploperty as described on Exhibit" A. "
E. Developer has applied for, and City has approved with conditions Variance 94-7,
in order to protect the interests of its citizens and the quality of the community and environment.
As part of that process of approving the Development Plan, City bas determined that the project
is exempt from review under the California Environmental Quality Act ("CEQA G). City bas
imposed a series of conditions on the development of the Project to mitigate any potentially
adverse impacts caused by the Project, and ensure that the project is compatible with
surrounding uses and the community in general and will not be detrimental to the neighborhood.
Ordinance Number /~~I
F. City is in the process of developing a Main Street Specific Plan which may
provide community-wide standards for some or all of the elements covered in this development
agreement. Developer was advised of the pendency of the Specific Plan and offered the
opportunity to delay his application pending the approval of the Specific Plan. Based on
persona1 economic considerations and an uncertain completion date for the Specific Plan,
Developer elected to proceed with his application. ~nsistent with other recent Variance
approvals in the Main Street area, the City's approval of Variance 94-7 was made contingent
upon the execution of this development agreement. Developer and City desire to enter into this I
development agreement to give effect to the City's approval of Variance 94-7. Proceedings have
been taken in accordance with City's rules and regulations.
G. In adopting Resolution No. 95-_, the Planning Commission found that the
development permitted by this Agreement is consistent with the City's General Plan.
H. The Development Plan implements the goals and policies of the City's General
. Plan, and contributes to the balanced and diversified land uses of the City in order to maintain
the overall quality of life and of the environment within the City and to impose appropriate
standards and requirements with respect to land development and usage.
I. City has found and determined that the execution of this Agreement is in the best
interest of the public health, safety and general welfare of City and its residents and that
adopting this Agreement constitutes a PIOper exercise of its police power.
THE PARTIES AGREE AS FOLLOWS:
1. Definitions.
1;1 "Agreement" is this Development Agreement.
1.2 -City" is the City of Seal Beach, California.
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1.3 "Developer" is Ron Bennett, an individual, and his assignees or successors
in interest to all or any part of Developer's interest in the Property.
1.4 "Development Plan" is all of those ordinances, resolutions, codes, rules,
regulations and official policies of City governing the development and use of the Property as
of the Agreement Date, including, without limitation, regulations regarding the permitted uses
of the Pkoperty, the density or intensity of use, the provisions for reservation or dedication of
land for public purposes, and the design, improvement and construction standards and
specifications applicable to the development of the Pkoperty, and all of those permits and
approvals which are referenced on Exhibit "8," which have been issued or granted by City in
connection with any of the foregoing. Specifically, but without limitation, such Development
Plan includes Variance 94-7 approved by the Planning Commission on February 8, 1995, by
Resolution No. 95-2, permitting with conditions the conversion of a portion of an existing
structure from retail sales (off-premise liquor) to a restaurant use on a commercially zoned lot.
To the extent Variance 94-7 may be amended from time to time, the Development Plan shall
include such matters as so amended. Notwithstanding the immediately preceding sentence, if
this Agreement is requited by law to be amended in order for the "Development Plan" to include
such amendments, "Development Plan" sha1l not include such amendments unless and until this
Agreement is so amended. A copy of Resolution No. 95-2, which includes the Conditions of I
Approval and conditions of approval, is attached hereto as Exhibit "C". A copy of the "Floor, .
Plot and Elevation Plan" filed in connection with the application for Variance 94-7 is attached
hereto as Exhibit "D."
1.5 -Effective Date" is that date upon which this Agreement is executed by
properly authorized officers of the City.
1.6 "Project" is the conversion of a portion of an existing structure from retail
ales (off-premise liquor) to a restaurant use on a commercia1ly zoned lot subject to this
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Ordinance Number
/3til
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Agreement, including, without limitation, the on-site and off-site improvements contemplated
by the Development Plan, as the same may be further defined, enhanced or modified pursuant
to the provisions of this Agreement.
1. 7 -P1c.}ldty- is the real property on which the Project will be located as
clescribed on Exhibit -A-.
1.8 .P1Ujdty Owner- is Ron Bennett.
2. Exhibits. The following documents are referred to in this Agreement,
attached hereto and incorporated herein by this reference:
Exhibit
Des\JTIation
n,."'ription
A
Lega1 Description of the Property
Development Plan Permits and Approvals
B
C
Planning Commission Resolution No. 95-2
D
Variance 94-7, -Floor Plan"
3. Mutual ~efits. This Agreement is entered into for the purpose of carrying
out the Development Plan for the Project in a manner that will insure certain anticipated benefits
to both City, including, without limitation, residents of City, and Developer as set forth in this
Section. City and Developer agree that, due to fully implement the Project and protect the rights
of each party, certain assurances on the part of each party as to the Project will be necessary to
achieve those desired benefits.
3.1 ~nefits to City. The benefits to City (including, without limitation,
the residents of City) under this Agreement include, but are not limited to: (a) the provision of
additional restaurant uses on Main Street; (b) the payment of in lieu fees for the construction of
public facilities and services; (c) an increase in property tax revenues, sales tax revenues, and
other revenues to be derived by City; and (d) certainty and consistency in the development
process on Main Street during the consideration of the Main Street Specific Plan.
3.2 ~efits to DeveIQPCl'. Developer has expended and will continue to
expend substantial amounts of time and money on the planning and development of the Project.
In addition, Developer will expend substantial amounts of time and money in contributing to the
provision of public services in connection willi the Project. Developer would not make such
additional expenditures without the rights conferred by this Agreement and such additional
expenditures will be made in reliance upon this Agreement. The benefit to Developer under this
Agreement consists of the granting of a vested right to the Developer to implement the project
pursuant to Variance 94-' and the assurance that Developer will preserve for a specified term
the right to develop the Property as planned and as set forth in the Development Plan.
4. Interest of Develooer.
interest in the P1ope.ty.
Developer represents that Developer has a legal
S. Bindin~ Effect of Ar:reement. The burdens of this Agreement bind, and the
benefits of this Agreement inure to, the successors in interest to the parties hereto.
6. imn. The term of this Agreement shall be twenty years, subject to the times for
performance specified in Paragraph 7, below.
Ordinance Number ;I~~/
7. Time of Performance. The terms and provisions of this Agreement shall
expire two (2) years from the Effective Date unless all building permits required to complete the
development of the Project as contemplated by the Development Plan have been issued and the
required certificates of occupancy issued.
8. Chanres in Prqject, Developer sha1l not be entitled to any change, modification,
revision or alteration in the Development Plan relating to the permitted uses of the Property, the
density or intensity of use, the maximum height and size of buildings or the provision of land I
for reservation or dedication for public purposes without review and approval by those agencies
of City approving the Development Plan in the first instance. Subject to the foregoing
provisions of this Section 8, City acknowledges that Developer may seek amendments to
entidement to use and new entitlement to use in connection with the development of the Project.
The approva1 of any such amendments or new entitlement to use sha1l be in the sole discretion
of the City.
9. Indemnification and , "V' Cha1len~e.
9.1. Indemnification. In addition to its duties under Section 9.2, Developer
agrees to and sha1l hold City, its officers, agents, employees, and representatives harmless from
liability for damage or claims for damage for persona1 injury including death and claims for
PJoperty damage which may arise from the activities of Developer or those of Developer's
contractors, subcontractors, agents, employees or other persons acting on Developer's behalf
which relate to the Project, whether those activities occur before or after the Effective Date
hereof. Developer agrees to and shall indemnify and defend City and its officers, agents,
employees, and l-rm~tatives with counsel acceptable to City from actions for damages caused
or alleged to have been caused by reason of Developer's activities in connection with the
Project, regardless of whether the City prepared, supplied or approved the plans or specifications
for the Project. .
9.2. , ~,,1lI Challenre. In the event of any legal action cha1lenging the valid-
ity, applicability, or interpretation of any provision of this Agreement, any of the entitlement
documents pertaining to the Project including, without limitation, the City's General Plan,
Zoning Ordinance, Variance 94-7, or any other supporting document relating to the project, the
Developer shall indemnify, defend ~d hold harmless the City, its officers, agents, employees
and representatives from and against all liability , costs and expenses, including attorneys' fees,
incurred by City or awarded against City in relation to such action. The City shall have the
right to select counsel of its choice subject to the right of Developer to reasonably reject any
particular attorney or firm. The parties hereby agree to cooperate in defending such action. In
the event of any litigation cha1lenging the effectiveness of this Agreement, or any portion hereof,
this Agreement sha1l remain in full force and effect while such litigation, including any appellate
review, is pending, unless otherwise ordered by the court. Absent issuance of an injunction,
Developer may elect to continue development under this Agreement pending completion of the
litigation but it sha1l do so at its sole risk, and City sha1l not be liable for any loss suffered as
a result thereof. .
10. Vested Rilrht. By entering into this Agreement and relying thereon, Developer is
obtaining a vested right to proceed with the Project in accordance with the Development Plan
and City is securing certain public benefits which help to alleviate current or potential problems
in City and enhance the public health, safety and welfare. City therefore agrees to the
following:
10.1 No Conflictin, Enactments. Except as otherwise provided herein, neither
the City Council of City nor any other agency of City shall enact an ordinance, policy, rule,
regulation or other measure applicable to the Project which re1ates to the rate, timing or
sequencing of the development or construction of all or any part of the Project or which is
otherwise in conflict with this Agreement. This Section sha1l not restrict the City's ability in
the event of a public emergency to take such reasonable measures under its police powers to
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Ordinance Number /391
protect the public health, safety and welfare as it deems necessary to deal with such emergency
even if such measures are incompatible with other terms of this Development Agreement.
10.2 Intent of Parties, No moratorium or other limitation (whether relating
to the rate, timing or sequencing of the development or construction of all or any part of the
Project and whether or not enacted by initiative or otherwise) affecting subdivision maps,
building permits, occupancy certificates or other entitlement to use approved, issued or granted
within City, or portions of City, sha1l apply to the Project to the extent such moratorium or other
limitation is in conflict with this Agreement. Notwithstanding the foregoing, should an
ordinance, general plan or zoning amendment, measure, moratorium, policy, rule, regulation
or other limitation enacted by citizens of City through the initiative process be determined by
a court of competent jurisdiction to invalidate or prevail over all or any part of this Agreement,
Developer sha1l have no recourse against City pursuant to this Agreement, but shall retain all
other rights, claims and causes of action at law or in equity which Developer may have
independent of this Agreement. The foregoing sha1l not be deemed to limit the Developer's
right to appeal any such determination of such ordinance, general plan or zoning amendment,
measure, policy, rule, regulation, moratorium or other limitation which purports to invalidate
or prevail over all or any part of this Agreement. City agrees to make all reasonable efforts to
c:ooperate with Developer to maintain this Agreement.in full force and effect.
11. General DevelQJ)ment of the Prqjecl.
11.1 Proiect. While this Agreement is in effect, Developer shall have a
vested right to develop the Project in accordance with the terms and conditions of this
Agreement, and City sha1l have the right to control the development of the ~ect in accordance
with the terms and conditions of this Agreement. Except as otherwise specified in this
Agreement, the Development Plan shall control the overall design, development and construction
required in connection with the Project and all on-site and off-site improvements and
appurtenances in connection therewith, including, without limitation, all mitigation measures
required in aider to minimize or eliminate any potentia1ly significant environmental effects. The
permitted uses of the Property, the density and intensity of use, the maximum height and size
of the subject building, the provisions for reservation and dedication of land for public purposes
and other terms and conditions of development applicable to the P10petly sha1l be those set forth
in the Development Plan.
11.2 Effect of Aereement on '.lInd Use Rqulations. The rules, regulations and
official policies governing permitted uses of the P1operty, the density and intensity of use of the
Property, the maximum height and size of proposed buildings and the design, improvement and
construction standards and specifications applicable to development of the Property are those
rules, regulations and official policies in force as of the Effective Date. In connection with any
approval which City is permitted or has the right to make under this Agreement relating to the
Project, or otherwise under its rules, regulations and official policies, City sha1l exercise its
discretion or take action in a reasonably expeditious manner which complies and is consistent
with the Development Plan and the standards, terms and conditions contained in this Agreement,
and in a manner which will not interfere with the development of the Project for the uses and
to the height, density and intensity specified in this Agreement or with the rate of development
seIected by Developer. City sha1l accept for p10ce5Sing and timely review and act on all
applications for further land use entitlement approvals with respect to the Project called for or
required under this Agreement. Such application sha1l be processed in the normal manner for
ptoressing such matters.
11.3 Traffic and Parkinl! Mitiration Contribution. Developer shall
contribute to City the sum of $ 6,362.40 to mitigate traffic and parking impacts arising from the
Project. This amount is $ 17,500.00, based on an interim in-lieu fee of $ 3,500.00 per parking
space (5 Ip"~s), minus credits based upon the benefits to the City and residents of the City
arising from the project. Developer sha1l pay to the City the amount of S 6,362.40 as follows:
S 1,272.50 sha1l be paid to the City prior to the issuance of a certificate of occupancy for the
project; the balance sha1l be paid in four equal installments of $ 1,272.50 on each successive
anniversary date from the date of the issuance of the certificate of occupancy. In addition to
Ordinance Number /3111
these amounts, Developer may be required to pay additional in-lieu parking fees pursuant to
Section 12.2 of this Agreement.
11.4 Develqpment Fees. Except as provided in Section 13 of this Agreement,
City sha1l not, without the prior written consent of Developer, impose or increase any fees
applicable to the deve10pment of the p.ope..ty or any portion thereof, or impose any such fees
as a concIition to the implementation of the Project or any portion thereof, except those fees in I
effect on the Effective Date of this Agreement.
11.5 . Silbseql1ent Actions. City sha1l ,timely process any applications for
entitlement or other discretionary approvals or entitlement contemplated by the Development
Plan, and any construction or other permits filed by Developer in accordance with the
substantive development standards set forth in the Development Plan.
12. Rules. Rqulations and Official Policies.
12.1 New Rules. This Agreement sha1l not prevent City from applying the
following new rules, regulations and policies:
(a) Processing fees and charges imposed by City to cover the estimated
actua1 costs to City of processing applications for development approvals, for monitoring
compliance with any development approvals, or for monitoring compliance with environmental
impact mitigation ~ures.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any
other matter of procedure.
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(c) Regulations governing construction stan.dards and specifications
including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
El~cal Code, and Fire Code provided that such construction standards and specifications are
applied on a City-wide basis.
(d) Regulations which are not in conflict with the Development Plan
or this Agreement.
(e) Regulations which are in conflict with the Development Plan or this
Agreement to which Developer has consented in writing.
12.2 City Parkine Propam. . Developer hereby agrees to participate in any
such in-lieu parking program as has been or sha1l be established by the City Council applicable
to business tenants and/or plopetty owners in the Old Town-Main Street area for an amount
equal to five (5) IIp''.....s. Any changes to the total parking requirement for the site sha1l cause
the modification of the rate of participation in the in-lieu program, subject to Planning
Commission approval. The Developer sha1l execute and cause a covenant to be recorded on the
tide of the plope11f which stipulates that five (5) parking spaces are required for the restaurant
of the propeH)', pursuant to the ("tv!.. of the City of Seal ~"h, I 28-1203 and I 28-1304. In
the event that future action by the City Council results in further costs per space, Developer
sha1l be entitled to a credit of $6,362.40, or that portion pajd thereof, pajd under this Agreement I
pursuant to Section 11.3.
12.3 Subsequent Actions and ~rovals. In aooordance with Government
Code Section 65866, this Agreement sha1l not prevent City in subsequent actions applicable to
the Plup<:rty from applying new rules, regulations and policies which do not conflict with those
existing rules, regulations and policies set forth in the Development Plan, nor shall this
Agreement prevent City from denying or conditionally approving any subsequent development
project application on the basis of such existing or new rules, regulations and policies.
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Ordinance Number /.39/
12.4 ~b1t.. and Federal LAws. In the event that state or federal laws or
regulations, enacted after this Agreement is executed, prevent or preclude compliance with one
or more of the provisions of this Agreement, such provisions of this Agreement shall be
modified or suspended as may be necessary to comply with such state or federal laws or
JegU1ations; provided, however, that this Agreement sha1l remain in full force and effect to the
extent it is not inconsistent with such laws or regulations and to the extent such laws or
regulations do not render such remaining provisions impractical to enforce.
13. Amendment or ("""ncellation of Arreement. This Agreement may be
amended or canceled in whole or in part only by mutual consent of the parties in the manner
provided for in Government Code Section 65868.
14. Rem...t\es.
(a) ~V"'ific Performance. Due to the nature and scope of the
Project, Parties acknowledge that money damages and remedies at law genera1ly are inadequate
and that specific performance is appropriate for the enforcement of this Agreement. Therefore,
the remedy of specific performance sha1l be available to all Parties hereto.
(b) Mandamus. The Parties hereby stipulate that the City's
performance of this Agreement is comprised of ministerial, non-cliscretionary duties which the
law specifically enjoins and administrative actions taken as the result of proceedings in which
by law hearings are required to be given, evidence is required to be taken and discretion in the
determination of facts is vested in the City, and that Developer sha1l be entitled to obtain relief
in the form of a writ of mandate in accordance with 'Code of Civil Procedure Section 1085 or
Section 1094.S, as appropriate, to rem~y any default by City of its obligations and duties under
this Agreement. Nothing in this pamgraph (b), however, is intended to alter the evidentiary
standard or the standard of review applicable to any action of, or approval by, the City pursuant
to this Agreement or with respect to this Project. .
(c) Other Remedies. This Section IS shall not limit any other
rights, remedies, or causes of action that any Party may have at law or equity.
(d) Any legal action sha1l be brought in the Superior Court for Orange
County, California.
14.1 Ci(y Not Liable For Dam.,es. It is acknowledged by the Parties that
City would not have entered into this Agreement if it were to be liable in damages under or with
respect to this Agreement or the application thereof. Consequently, and except for the payment
of attorneys' fees in accordance with Section 20 below, City shall not be liable in damages to
Property Owner, Developer, or to any assignee, transferee or any other person, and Developer
and Propertj Owner covenant on beha1f of themselves and their successors in interest not to sue
for or claim any damages:
(a) for any breach of, or which arises out of, this Agreement;
(b) for the taking, impairment or restriction of any right or interest
conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or cOnnected with any dispute, controversy or issue
regarding the application or interpretation or effect of the provisions of this Agreement;
provided, however, that the foregoing does not limit the liability of City, if any, for damages
which:
(i) are not for a breach of this Agreement or which do not arise
under this Agreement;
Ordinance Number ~;t~1
(ii) are not with respect to any right or interest conveyed or
provided hereunder or pursuant hereto; and
(ill) do not arise out of or which are not connected with any
dispute, controversy or issue regarding the application, interpretation or effect of the provisions
of this Agmement to, or the appIicati.on of, any City rules, regulations or official policies.
14.2 R_..h B.y Action of the Eectorate. 1be Parties hereby warrant that
each enters into this Agreement with the understanding that the Development Agreement Law I
authorizes this Agreement to bind the City even as to actions taken by the voters of the City.
If, a court of competent jurisdiction enters a fina1, non-appealable order to the contrary and the
City defaults 01\ its obligations under the Agreement within the meaning of Section 15 solely or
principally due to an action taken by the electorate of the City in the exercise of the reserved
powers of initiative and referendum, this Agreement sha1l be modified or suspended to the extent
required by Government Code Section 65869.5 and Developer's right to seek specific
performance, a writ of mandate, or other manclatory relief sha1l be limited by such force as the
action taken by the electorate may have in light of the Development Agreement Law as
determined by any court of competent jurisdiction, in which case Developer's principal remedy
shall lie in reformation of this Agreement.
15. Periodic Review of ColllPliance With Al!I'eemenl.
15.1 Periodic Review. City and Developer shall review this Agreement at
least once every six (6) months from the c1ate this Agreement is executed in accordance with the
p10cedures set forth in Section 28-2766 of the Code of the City of Seal Beach, California. City
sha1l notify Developer in writing of the date for review at least thirty (30) clays prior thereto.
15.2 Good Faith ComDliance. During each periodic review, Developer shall
be required to demonstrate good faith compliance with the terms of this Agreement.
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16. Event of Default b.y DevelOllCr. If City determines on the basis of substantial
evidence that Developer has not complied in good faith with the terms and conditions of this
Agreement, City shall, by written notice to Developer, specify the manner in which Developer
has failed to so comply and state the steps Developer must take to bring itself into compliance.
If, within sixty (60) clays after the effective c1ate of notice from City specifying the manner in
which Developer has failed to so comply, Developer does not commence all steps reasonably
necessary to bring itself into compliance as required and thereafter diligently pursue such steps
to completion, then Developer shall be deemed to be in default under the terms of this
Agreement and City may terminate this Agreement, seek specific performance as set forth in
Section 15, or invoke any other remedies afforded by law.
17. Waivers and Dell\Ys.
17.1 Waiver. Failure by a party to insist upon the strict performance of
any of the provisions of this Agreement by the other party, and failure by a party to exercise
its rights upon a default by the other party hereto, shall not constitute a waiver of such party's
right to demand strict compliance by such other party in the future.
17.2 Third Parties. Nonperformance shall not be excused because of a
failure of a third person except as provided in Section 18.3 below.
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17.3 Force Maieure. Neither party shall be deemed to be in default where
failure or delay in performance of any of its obligations under this Agreement is caused by
floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes, other
labor difficulties, federa1 or state government regulations, court actions, or other causes beyond
the party's control.
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Ordinance Number ;I~~/
18. Notices. All notices required or provided for under this Agreement sha1l be
in writing and delivered in person or deposited in the United States mail, postage prepaid and
addressed as follows:
TO CITY:
City of Seal Beach
Attn: Director of Development Services
211 Eighth Street
Seal Beach, California 90740
TO DEVELOPER:
Ron Bennett .
935 Oat21irul Avenue
Seal Beach, CA 90740
Either PartY may change the address stated herein by giving notice, in writing,
to the other party and thereafter notices sha1l be addressed and submitted to the new address.
Notices sha1l be deemed received upon persona1 delivery or upon the third (3rd) day following
deposit in the U. S. mail in the manner set forth above.
19. Attorneys' J;'"""c, If legal action is brought by any party against another for
breach of this Agreenient, or to compel performance under this Agreement, the prevailing party
sha1l ~ entitled to an award of aCtua1 attorneys' fees and costs.
20. Transfers and Assipments,
20.1 Ril!ht to Assim. Developer sha1l have the right to sell, transfer or
assign its respective interest in the Property in whole or in part (provided that no such partial
transfer shall be permitted to cause a violation of the Subdivision Map Act, Government Code
Section 66410, a BQ.) to any person, partnership, joint venture, firm or corporation at any time
during the term of this Agreement; provided, however, that any such sale, transfer or assignment
sha1l include the assignment and assumption of the rights, duties and obligations arising under
or from this Agreement. .
21. Project as a Private Und"",,lrin~. It is specifically unde!stood and agreed by and
between the parties hereto that the development of the Project is a private development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is
an independent contracting entity with respect to the terms, covenants and conditions contained
in this Agreement. No partnership, joint venture or other association of any kind is formed by
this ~t. The only relationship between City, on one hand, and Developer, on the other,
is that of a government entity regulating the development of private property.
22. Eminent Domain. No provision of this Agreement sha1l be construed to limit
or restrict the exercise by City of its power of emil)ent domain.
23. Authority to Execute. The persons ex~uting this Agreement on behalf of
Developer warrant and represent that each has the authority to execute this Agreement on behalf
of the Developer and to bind Developer to the performance of its respective obligations
hereundec.
24. }l1'tY\1'll..tion. This Agreement and any amendment or cancellation hereto shall
be recorded in the Office of Official Records of the County of Orange, by the City Clerk within
the period required by Section 65868.5 of the Government Code.
Ordinance Number I~~/
.
25. Protection of Mnrtp'a~e Holders. Nothing contained herein shall limit or
interfere with the lien of mortgage holders having any mortgage made in good faith and for
value on any portion of the !>>lopert)'. -Mortgage holder- includes any beneficiary under any
deed of trust encumbering the plOperty, and -mortgage- includes any deed of trust.
26. Severability of Terms. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement
shall not be affected thereby to the extent such remaining provisions are not rendered impractical
to enforce.
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27. SubSollQllent Amendment to Authorizin, Statute. This Agreement has been
entered into in reliance upon the provisions of the statute governing development agreements
(Government Code Section 65864 - 65869.5 inclusive) in effect as of the Agreement Date.
Accordingly, subject to Section 13.3 above, to the extent the subsequent amendment to the
Government Code would affect the provisions of th,is Agreement, such amendment shall not be
applicable to the Agreement unless necessary for this Agreement to be enforceable or unless this
Agreement is modified pursuant to the provisions set forth in the Agreement and Government
Code Section 65868.
28. lnf.elJ)retation and Governin, Law. This Agreement and any dispute arising
heleunder shall be governed and interpreted in accordance with the laws of the State of
California.
29. Section "".'Illinl!s. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
30. IncoqxJI'lltion of R""itals and P.~hibits. Recitals A through K and attached
Exhibits -A- through -D- are hereby incorporated herein by this reference as though fully set
forth in full.
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31. Rules of Construction and Mi""",llaneous Terms.
31.1 Gender. The singular includes the plural; the masculine gender
includes the feminine; -shall- is mandatory, -may- is permissive.
. 31.2 Time of Pc.....ce. Time is of the essence regarding each provision of
this Agreement in which time is an element.
. 31.3 r..r:>peration. Each party covenants to take such reasonable actions and
execute all documents that may be Pece''''''Y to achieve the purposes and objectives of this
Agreement.
Dated:
, 1995
I
By:
Ron Bennett
-Developer-
Dated:
I ATI'EST:
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By:
,1995
Ordinance Number /.3 9/
CITY OF SEAL BEACH, a municipal
corporation of the State of California
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
Mayor
.City"
Ordinance Number ~~~I
EXHIBIT B
RESOLUTION NUMBER 95-3
A RESOLUTION OF THE PLANNING
COMMISSION OF THE CITY OF SEAL BEACH
RECOMMENDING THAT THE CITY COUNCIL
APPROVE A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SEAL BEACH AND RON
BENNETT, FOR A RESTAURANT USE ON A
COMMERCIAL LOT (322 MAIN STREET -
VARIANCE 94-7)
I
THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH DOES
HEREBY RESOLVE:
_nn I Ron IIenneIl ("IIennelI"). In individual, bas applied for IIld been
panted Variance 94-7 by the City of Seal BcII:b. 'Ibe City ....s IlennelI desiJe to enter Into a
deveIopmenllli;leellle/ll pumlllll to Governmenl Code SeclilJ/ls 65864 duou&h 65869.5. Ind
ArticJe 27.5 of ChIpter 28 of the Code of the City of Seal Ileacb. California to imp1emen1 the
_ Ind 1lIlIldi1i0llS of Variance 94-7 with JeSpIICI to IhaI certain RaI properly commonly
IInown u 322 Main SIreeI. Ind more pu1icuIarIy described in the I"UJAA'I'CI deveIopmenl
qreen....1, ~ henoIo u Edlibil A.
s-inn 2 Pursuanlto 14CaliforniaCodeofRegs.11502.5(a)IIld" n.Bof
the City's LacaI CEQA Guidelines. the PIInnin& CommissilJ/l bas previously determined IhaIthe
pnljecl. which is. the IUbjec:l of Variance 94-7 Iftd the deveIopmenl apemenl under
llllIISidcnlion berein. is c:aIeIorically aempI from review under the California Environmenlal
Quality AcI ("CEQA") pumIIIIl to 14 Calif. Code of Regs. 115303 (New ConversilJ/l of Small
StrucIures). because the JIIO.iecl invol_ the c:onversion of In aisIin& smaIJ IIIrUl:Iure from one
use to IIIOIher ....s only minor modiflC8liOllS wiD be made to the exterior of the SlnICIUJe; IIld
pumIIIIl to 14 Calif. Code of Regs. 115061(b)(3). because it can be seen with certainty IhaI
thete is no possibility IhaI approvaJ of eilller Variance'94-7 or the devdopmenl ..-menl may
have a Iipi6can1 effecllJ/lthe environmenl.
. _nn 3. Punulnl to SeclilJ/l 28-2759 of the Code of the City of Seal Beach.
the P1annina CommissilJ/l held a properly ooIiced pubUc bcuina reprdina the JIIIlJlOSed
deveIopmenla&o....._.1 011 Febnwy 22. 1!lIl5.
I
_... 4. Based upon the evidence ~ted. ....s 011 the enviranmenlal
ClOIISideIaIion nl'erenced above. pursuanl to Governmenl Code SeclilJ/l 65867.5. SeclilJ/l 28-
2759 of the City's QIlk. Ind SeclilJ/ls 15303 IIld 15061 of the CEQA Guidelines. the PIInnin&
Commission hereby finds Ind decIarcs u follows:
A. The ,..........,d deve1opmenll8reellletll is c:onsislenl with the cumnl
GencraI Plan for the City of Seal Ileacb. the objec:li_. policies.
aenmJ land uses, IIld JII'OIranIs specified Ihaein. IIld with the
Zonina Map for the City of Seal BcII:b. u eII:h bas been amended
to dale, in IhaI the ClenenI Plan IIld Zonin& Map pmvide for
Service Commen:ial (C-I) uses of the IUbjecl 1".......1,. which
include the _rul use OOIIleIIlpIated by the l"uj'Oaed
devdopmenl ..-menl. 'I1Iere is 110 IpllCific plan applicable to
the I"UjNSod devcIopmenl apemenL
B. The _IIDIII use ClIIIIIeIIIJIIa by the JIIIlJlOSed developmenl
qrcemenl is compalible with the Service Commercial uses
uIhorized in the CoI DisIric:I In wbich the IUbjec:l property is
1oc:aIed.
C. 'Ibe I"........,d devdopmenll6o-.....1 is in c:onformity with. Ind
will DOl be delrimenlal to. the public necessily. public
OOIIvenience. a-aJ welfare, ....s aood land use pnICIices in IhaI
the _urul use I"UJAA'I'CI is 1w."",iaIe for a commercially
__ p.0j0e017.1nd the I"u~ deveIopmenlapemenl provides
far bIIanced ....s diversified land uses in a IIlIIIneI' IhaI wiD proIecI
the DVeIlIIIlIua1ity of life ....s environmenlln the City.
D. 'Ibe I"........,d deveIopmenI apeeldenl will 110I advenely afl'ec1 the
orderly deve10pmenl or propeny, but wiD instead fiuther the
orderly devdopmenl process by imposina Ipl""",iale standards
Ind NlluUemenls with nprd to land devdopment 011 Ibis
properly.
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E. 'Ibe I"...,o.ed devdopmenll6o_..n1 will have. posilive fiscal
imJllCl 011 the City of Seal Beach in IhaIthe apemenl enc:ounaes
economically pnxIuclive use of the properly ....s NIIUires the
Developer to pay certain fees to the City.
. _on ~ Based upon the foIeaoina. the PIInnin& CommissiOll of the City of
Seal Beach does hereby recommend to the City Council of the Cily of Seal Beach thai the
I"UJAA'I'CI cIeveIopmenl.......mcn1 between the City IIld Bennel\. IllaCbed henoIo u Edlibil "A",
be.......v.J'Cd.
.,
. Ordinance Number J':l1 J
PASSED. APPROVED AND ADOPTED by the Planning CommiJsilJ/l of the City of
Seal BcII:b II a meeIing held lllI the 22nd day of FdmIary, 1995. by the following W1e:
AYES: Commissioners Brown Ca~11 Law Sham and nmirman I>.ahlman
NOES: Commissioners None
ABSENT: eam",;__ None
I 4~d//
AIllllll IlIhIman, Chairman
,
ATI'EST
~aJM'
ft:~::=-~
I
I
Ordinance Number ;I~/
PROOF OF PUBLICATION
(2015.5 C.C.P.)
STATE OF CALIFORNIA,
County of Orange.
I am a citizen of the United States
and a resident of the County afore-
said; I am over the age of eighteen
years, and not a party to or inter-
ested In the above-entitled matter.
I am the principal clerk of the printer
of the SEAL BEACH SUN, a newspaper
of general circulation, printed and
published weekly in the City of SUI
Beach, County of Orange and which
newspaper has been adjudged a
newspaper of general circulation by
the Superior Court of the County of
Orange, State of California, under the
date of 2/24n5. Case Number A82583;
that the notice of which the annexed
is a printed copy (set In type not
smaller than nonpareil), has been
published In each regular and entire
issue of said ne'wspaper and not In
any supplement thereof on the
following dates, to-wit:
all In the year 19J1.5...
I certify (or declare) under penalty of
perjury that the foregoing Is true and
correct.
Dated at Seal Beach, California,
this ~ day of~ ,19Jl.5..,
~r"'" "t. ~, ,
Slgnatu~
PUBLICATION, PROCESSED BY:
THE SUN NEWSPAPERS
216 Main Street
Seal Beach, CA 90740
(310)430-7555
,
This space for for the County Clerk's
Filing Stamp
I
, Proof of Publication of
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
._ _ ~ ~".4:' p ...-::--
NOnCE OF.
:: . PUBLIC HEARING
I-..-mc:E. IERE8Y GIVEN _
.,.. ~ Coun.1I 01 .. CI:r, 01
...1 I..ch will hold. pu lie
.....rln. on lIonda,. "arch 11,
.'"1 .1-7:.. p.lft. I. tho Clt,
Co..... Cto..........~, EIJlhlh
'.-'_-"'-.ta
t.-"-"-:
, ~:'A IlEVE1.DPIIENT ADREEMENT
." FQR VARWICE 84,7
.,. 322I1A1N STIIEET
j,. A reque,. 10 approve a
D8\l181apinelll ~ ......,
'::::: ..d Ih.
. applicant, Ron Bennan. .. .
~ _oI~oIV._
P 14-7.
~~ .I!I..L__...._
TIll. proj..' .. ..t....rIo.II'
,-,_CEClA_.
--
Article 27.1 Development
E. Ag...m..... S.OII.. 21.27iil
, 211-2770.
'. A - ~
ti.RiIiI-
~ "'-tr- .
~'-. ..
AI .. __ limo .IId p.... .11
~__ _11I_"1
... d..... II rou _II.... Ill.
__~oourI,,.._
~H -lImfted 10 railing onf, Iholl
_,..or_____
.. ..,... Iud.. _dbtld In
11I11 : notlcl. Dr In written
corrHDOnClencl delivered to the
ca, __ ..... ... or prior 10,
, ,........ IIooIlng.
I . DAlEO lID lI41II ell, 01 -rr,
, '1186 .
.,.......i Y.o.a, CIorIl
,.CI701_ '
_ Pub. 8..1 .each 8un JDurnal
-
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I
PROOF OF PUBLICATION
(2015.5 C.C.P.)
STATE OF CALIFORNIA,
,
County of Orange
I am a citizen of the United States
and a resident of the County afore-
said; I am over the age of eighteen
years, and not a party to or inter-
ested in the above-entitled matter.
I am the principal 'clerk of the printer
of the SEAL BEACH SUN. a newspaper
of general circulation, printed and
published weekly in the City of ~
Beach, County of Orange and which
newspaper has been adjudged a
newspaper of general circulation by
the Superior Court of the County of
Orange, State of California, under the
date of 2/24n5. Case Number A82583:
that the notice of which the annexed
is a printed copy (set in type not
smaller than nonpareil), has been
published in each regular and entire
issue of said newspaper and not in
any supplement thereof on thE1
following dates, to-wit:
.3/~3
,
all in the year 19A.
I certify (or declare) under penalty of
perjury that the foregoina is true and
correct.
Dated at Seal Beach, California,
this ..a day of ~ , 19J!.5.
t!fa ~
Signature
PUBLICATION t'ROf"'cI';I';FC BY:
THE SUN NEWSPAPt:RS
216 Main Street
P,O. Box 755
Seal Beach, CA 90740
(310)430-7555
Ordinance Number
/J11
This space for for the County Clerk's
Filing Stamp
Proof of Publication of
....................... ..........
~.<<~.~.1';;:1!.
SUMMARY-
ORDINANCE NUMBER 1381
I DEVELOPMENT
I AGREEMENT -
. :.'D2 MAIN STREET
Ordinance Number 1391 of the
City of S.I' Buch. approves a
deYelopment agreement between
the City of S8.1 Saach and Ron
BeM811 for P.....nv _od ., 322
Main Street. the conversIon of a
por1Jon of an IXllbng struCtUre from
...... .... (ofI-preml&e liquor) 10 a
......urent use on 8 convnercl8lly
zoned 101. Ordinance Number 139'
was II'Itroduced at the regula, City
Counc" milling of March ,3th.
1885 and In..f reading was
appl1Mld by Iho fllIlo~ng _.
AYES: Brown. Doane, Forsythe.
~= Motion
carried
Ordinance Number , 391 will
receive .econd readtng and be
considered for adopllon al the
regular City Council meeting ot
March 13th, 1995. Caple. 01
Ordlnence Number 1391 are
awltabte from the ottlce ot the City
Clark. Crt): Hall. 211 . 8111 811861.
Saal Beaoh: lalaphona (310) 431.
2527.
DATED THIS 14111 dOy 01 Uan:h.
1995
Joanna M. Yoo. Cny Clark
CoIy 01 S88l Beach
Pub. ".1 Beach Sun Journ..
OI/23/IS
Ordinance Number ~-'~/
PROOF OF PUBLICATION
(2015.5 C.C.P.)
STATE OF CALIFORNIA,
,
County of Orange
I am a citizen of the United States
and a resident of the County afore-
said; I am over the age of eighteen
years, and not a party to or inter-
ested in the above-entitled matter.
I am the principal clerk of the printer
of the SEAL BEACH SUN. a newspaper
of general circulation, printed and
published weeklv in the City of ~
Beach, County of Orange and which
newspaper has been adjudged a
newspaper of general circulation by
the Superior Court of the County of
Orange, State of California. under the
date of 2124175. Case Number A82583;
that the notice of which the annexed
is a printed copy (set in type not
smaller. than nonpareil), has been
published in each regular and entire
issue of said newspaper and not in
any supplement thereof on the
following dates, to-wit:
1..1.A.
.
all in the year 19~.
"
I certify (or declare) under penalty of
perjllry that the foregoing is true and
correct.
Dated at Seal Beach, California,
this ... day of V)...oIL..... , 19~.
~--='L-' ,~CJ Q,'_~'C' c.~
Srgnature__ <-
PUBLICATION PROCESSED BY:
THE SUN NEWSPAPERS
216 Main Street
P.O. Box 755
Seal Beach, CA 90740
(310)430-7555
This space for for the County Clerk's
Filing Stamp
Proof of Publication of
I
. , . . Q Vl.t)'~ r,:..,~.c.ji. . ,~. \ ?';\.\. . . .
............................ .
Paste Clipping
of Notice
SECURELY
In This Space
SUMMARY -
ORDINANCE NUMBER 1391
~
S22 II&IM STREET
Ordln.nce Numb,r 1391 of the
City 0( Seal e.ach, approving .
development agr..ment for the
converaion of . portion of an
uIItmg Bl_ 110m ___
(011 pre.... IoqUD~ ID . reol8Wanl
UH on I commlrdelly zoned lot
lOCated at 322 Maln Stre.t,
received second reading and was
.dopled by the City Council al a
"'aular meeting thereot held on
21th day of March, 1995 by the
foIlow01g _
AYES' _, FDI5yUle, HoBl1ngs.
1.1I_
NOES: None
ABSENT: Doane _.._
Cop'e' of Ordtnance Numbl"
1381 are avadable lrom the office
oIlhl Coty CllrIc, Coty Hell, 211 -
8lI\ -. Seol_,-...
(310) 031-2521.
DATED TIlIo 28Ih day of Man:h.
11195
.-..oM Y...ao,CIOrIc
Cotycl __
Pub. S.a' Seach Sun Journal
CI4IOpI85
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