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HomeMy WebLinkAboutPC Res 93-39 - 1993-07-21 . RESOLUTION NUMBER 93-39 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH RECOMMENDING APPROVAL TO THE CITY COUNCIL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SEAL BEACH AND BISCHELL 209 MAIN STREET L.P., FOR A RESTAURANT AND OFFICE USE ON A COMMERCIAL LOT (209 MAIN STREET - CUP 92- 23) THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH DOES HEREBY RESOLVE' SectIon I BI~cheIl 209 Mam Street L P (" BlscheIl ") has applied for and been granted CondItional U~e PermIt 92-23 and Vanance 92-3 by the City of Seal Beach The CIty and BlscheIl deSIre to enter mto 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 certam real property commonly known as 209 Mam Street, and more particularly descnbed m the proposed development agreement, attached hereto as ExhIbIt A SectIon 2 Pursuant to 14 Calltornla Code of Reg~ ~ 15025(a) and ~~ II C and III of the City's Local CEQA GUIdelines, staff prepared an InitIal Study and a NegatIve DeclaratIOn, whIch were Circulated for public review and comment from February 17, 1993 to March 15, 1993, and adopted by the City Council on June 28, 1993, m complIance wIth the provISions of the Call forma EnVIronmental Quality Act and the City's Local CEQA GUIdelInes SectIon 3 Pursuant to SectIOn 28-2759 of the Code of the City of Seal Beach, the Planning Comnlls~lOn held a properly noticed public heanng regardmg the proposed development agreement on July 21, 1993 Section 4 Based upon the eVIdence pre~ented, and on the envIronmental documentatIon referenced above, pur~uant to Government Code SectIon 658675, SectIon 28- 2759 of the CIty's Code, and SectIon 15162 of the CEQA GUldelIne~, the Planning CommIsSIon hereby finds and declares a~ follows A The proposed development agreement IS con~lstent With the current General Plan for the CIty of Seal Beach, the objectIves, pollcle~, general land u~es, and programs speCIfied therem, and WIth the Zoning Map for the CIty of Seal Beach, a~ each has been amended to date, m that the General Plan and ZOning Map proVIde for ServIce CommerCial (C-I) uses of the subject property, whIch mclude the restaurant and office u~es contemplated by the proposed development agreement B The reMaurant and oftice uses contemplated by the propo~ed development agreement are compatIble WIth the ServIce CommerCIal u~es authonzed m the C-I DIstrict m whIch the subject property I ~ located ( \WP~I\Rr...'O\<..lIP92.11IJ( D\I w\07 1191 ........ CcmdulOnal U\t' Penm! 92.23, Development Agreement Planning Co"um~')lcm Rt'\o[uflon 93-39 Jllly 21. 1993 C The proposed development agreement IS m conformIty wIth, and will not be detmnental to, the public necessIty, publIc conventence, general welfare, and good land u~e practIce~ m that the re~taurant and office uses proposed are appropnate for a commercIally zoned property, and the proposed development agreement provIdes for balanced and diversIfied land uses m a manner that wIll protect the overall qualIty of lIfe and envIronment m the City. D The proposed development agreement will not adversely affect the orderly development of property, but wIll mstead further the orderly development process by IInposmg appropnate standards and reqUIrements WIth regard to land development on thiS property E The proposed development agreement wIll have a pOSitIve tiscal Impact on the City of Seal Beach m that the agreement encourages economIcally productive use of the property and reqUIres the Developer to pay certam fees to the CIty F The proposed development agreement IS wlthm the scope of the NegatIve Declaration prepared by the CIty and adopted on June 28, 1993, and no substantial change or new ~Igntficant envIronmental Impact ha~ been brought forward WIth re~pect to the clrcumstance~ under whIch the Negative Declaration was prepared whIch would reqUIre revIsIons m or to the Negative DeclaratIon Section 5 The Planning CommIssIon therefore fmds that the adoptIOn of the proposed development agreement, attached hereto as ExhIbIt "A", wIll have no SIgnificant Impact on the envlTonment that WIll not be mItigated to a level of mSlgnlficance as provIded m the NegatIve Declaration prepared for the project and adopted by the CIty on June 28, 1993 SectIon 6 Based upon the foregOing, the Planning Commls~lon of the CIty of Seal Beach does hereby recommend to the CIty Council of the City of Seal Beach that the proposed development agreement between the Clly and BI~chell 209 Mam Street L P., attached hereto as ExhIbit "A", be approved The Planning Comnm~lOn further recommends that the Traffic Impact Fee be adjuMed or waIved by the CIty CouncIl pursuant to Section 22B-9 of the Code of the CIty of Seal Beach PASSED, APPROVED AND ADOPTED by the Planning Commls~lOn of the CIty of Seal Beach at a meetmg held on the 21st day of July, 1993, by the followmg vote AYES Comnlls~lOners Dahlman. Fife. Law. Shall'. Soukup NOES Comml~~lOner~ None ABSENT CommIssIoners ~dd Anton Dahlman, ChalTlllan ( \WI'~1\Rr..~0\(.11P92-211'{ D\I w\(r7 12-91 2 A TIEST Le WhIttenberg Secretary to Planning Comml~~1 ( \WPlljl\RDJ,0\f'1JpcJ2-21 Pt 1)\1 W\lr122-91 C(}Iuilfwnal U\l' Pewut 92-21, DevelopmRnt Agut'nu-nt Planning ClJIlITm i ~UJn Rt'~oJutlon 93-39 July 21, 1993 3 RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO CITY OF SEAL BEACH DEVELOPMENT SERVICES DEPARTMENT 211 EIGHTH STREET SEAL BEACH, CA 90740 ThL undc....lgncd declare that UII'I lD'itrumLDl 1'1 recorded at the rtqUClil and tor the bcnent of IbL (.II Y OF ftl!J\1 8J:A('1I alld 1'1 therefore exempt from pa)mLDt or recordmg fecll pu....uant to GovLrnUlLot (.ode 06103 Mod the paYOIeDt of ducumentary lr.m..r...r 1.a~ pu....ullollo R...Yf..nue & TaxalloD Cod... 119122: (Space Above for Recorder's Use) DEVELOPMENT AGREEMENT (Pursuant to Government Code Sections 65864 - 65869.5) ThIS DEVELOPMENT AGREEMENT ("Agreement") IS entered mto between BIschel! 209 Mam Street L P Developer and Property Owner, (heremafter "Developer")} and the CITY OF SEAL BEACH, a mUnIcIpal corporation orgamzed and eXlstmg under the laws of the State of CalIfornia ("CIty") Developer and CIty are sometimes collectively referred to herem as the "partIes" R E C I TAL S: ThIS Agreement I~ predIcated upon the followmg facts A These ReCItals refer to and utilIze certam capitalIzed terms whIch are defined m thIS Agreement The parties mtend to refer to those defInitions m conjunWon wIth the use thereof m these Recltal~ B Government Code SectIOns 65864 - 65869 5, ("Development Agreement Law") authonze the City to enter mto bmdmg development agreements wIth persons havmg a legal or eqUItable mterest m real property for the development of such property, all for the purpose of strengthening the publIc planning proce~s, encouragmg pnvate partiCIpatIOn m comprehensIve plannIng and reducmg the economIc costs of ~uch development C Pursuant to Government Code Section 65865, CIty has adopted rules and regulations as ArtIcle 275, commencmg WIth Section 28-2751 of the Code of the CIty of Seal Beach, CalIfornia, establI~hmg procedure~ and reqlllrement~ for con~lderal1on of development agreements D Developer IS the proposed developer of the Property as descnbed on ExhIbIt" A." E Developer IS performmg a seismIC retrofIt of the property to e~tablIsh a full servIce restaurant c.ommonly known as BJ's ChIcago Plzzena ("Project" heremafter) requITIng major mvestment m publIc faCIlIties and substantial front-end mve~tment m on-sIte Improvements F Developer has applIed for, and CIty has condItIOnally approved, CondItional Use PermIt 92-23 and Vanance 92-3 m order to protect the mtere~ts of ItS cItIzens and the qualIty (. \WPS1\<...1JP\(.1Jl'92-21 A02\I W\ln~16 91 B/lchell 209 MOIn Street L P Development AgreemRnt July, 1993 of the communIty and envIronment As part of that process of approvmg the Development Plan, CIty has undertaken, pursuant to the CalIfornia Environmental QualIty Act ("CEQA"), the reqUIred analYSIS of the envIronmental effects whIch would be caused by the Project CIty has Imposed a senes of mItIgation measures m connection WIth the development of the Project to elImmate any potentIally adverse Impacts caused by the Project On June 28, 1993, the City CounCIl of City adopted the Negative DeclaratIOn prepared for the proposed project and made the reqUIred envIronmental findmgs G Developer has requested CIty to conSIder entenng mto a development agreement relating to the Project and proceedmgs have been taken m accordance WIth CIty's rules and regulatIOns. H In adoptmg Resolution No 4239, the CIty CounCIl has found that the development permItted by thIS Agreement IS consIstent WIth the Clty'~ Gcneral Plan I The Development Plan Implements the goals and polICIes of the CIty's General Plan, and contnbutes to the balanced and dlveTSlfied land uses of the CIty m order to maIntam the overall qualIty of life and of the envIronment wlthm the CIty and to Impose appropnate standards and reqUIrements With respect to land development and usage J CIty has found and deternuned that the execution of thIS Agreement IS m the best mterest of the publIc health, safety and general welfare of CIty and ItS reSidents and that adoptmg thIS Agreement con~tltutes a present exercIse of ItS pohce power K Pursuant to SectIOn 30106 of the CalIfornia Coa~tal Act, the Coastal CommISSIon has Issued an exemption letter certlfymg that no coastal development permIt IS needed for the Project THE PARTIES AGREE AS FOLLOWS: 1 Defmlllons I I "Agreemcnt" IS thIS Development Agreement I 2 "Agreement Date" I~ the date thl~ Agreement IS executed by CIty I 3 "CIty" IS the CIty of Seal Beach, CalI forma I 4 "Developer" IS Blschell 209 Mam Street L P and ItS assIgnees or successors m mterest to all or any part of Developer's mterest m the Property I 5 "Development Plan" IS all of those ordmances, resolutlon~, codes, rules, regulations and offiCial polICIes of City governmg the development and u~e of the Property as of the Agreement Date, Includmg, without lll11ltatIOn, regulatlon~ regardmg the permitted uses of the Property, the den~lty or mten~lty of use, the provlslon~ for re~erval1on or dedICatIOn of land for public purposes, and the design, 1Olprovemenl and constructIOn standards and specIficatIOns applIcable to the development of the Property, and all of those permIts and approvals which are referenced on ExhIbIt "B," whIch have bcen Issued or granted by CIty 10 connection WIth any of the foregomg SpeCIfically, but WIthout lImItatIOn, such Development Plan mcludes CUP 92-23 and Vanance 92-3 adopted by the CIty CounCIl on June 28, 1993, by ResolutIOn No 4239, allowmg the establIshment of a full servIce restaurant servmg beer and wme To the extent CondItional U~e PermIt 92-23 or Vanance 92-3 are amended from time to time, the Development Plan shall mclude ~uch matters as so amended Notwlthstandmg the ImmedIately precedmg sentence, If thIS Agreement IS reqUIred by law to be amended m order for the "Development Plan" to mclude such amendments, "Development Plan" shall not mclude C \WI''il\llJP\C1JJ>>92-21 A02\1 W\07-16-91 2 B/lcllell 209 Main Sheet L P Development Agreenu-nt July, 1993 such amendments unless and untIl thIs Agreement IS so amended A copy of ResolutIon No. 4239, which mcludes the CondItions of Approval and the MItigatIon MOnltonng and Reporting Program, IS attached hereto as ExhIbIt "C" A copy of the "Floor, Plot and ElevatIOn Plan" for CUP 92-23 and Vanance 92-3 IS attached hereto as ExhibIt "D" A copy of the NegatIve Declaration adopted for the Project, IS attached hereto as ExhibIt "E" I 6 "Effective Date" IS that date upon whIch thiS Agreement IS executed by properly authonzed officers of the CIty. 1 7 "Project" IS the performance of a seismiC retrofit of the property to establish a full service re~taurant commonly known as BJ's ChIcago Plzzena, mcludmg, WIthout lImItation, the on-sIte and off-SIte Improvements contemplated by the Development Plan, as the same may be further defined, enhanced or modified pur~uant to the provIsIons of thIS Agreement 1 8 "Property" IS the real property on whIch the ProJect wIll be located as descnbed on ExhibIt "A" I 9 "Property Owner" IS Blschell 209 Mam Street L P 2 Exhibits The follOWing documents are referred to m thIS Agreement, attached hereto and mcorporated herem by thiS reference ExhIbit Desl!!natlon DescnptIon A Legal DescnptIon of the Property B Development Plan Permits and Approvals C Implementmg Resolution No 4239 D Conditional U~e Pe1ll11t 92-23 and Vanance 92-3, "Floor, Plot and ElevatIon Plan" E NegatIVe DeclaratIon 3 Mutual Benefits ThiS Agreement IS entered mto for the purpose of carrymg out the Development Plan for the Project m a manner that WIll m~ure certam anl1clpated benefits to both City, mcludmg, WIthout lImItatIon, reSIdents of CIty, and Developer as set forth m thIS SectIon. City and Developer agree that, due to the compleXIty of the Project, c.ertam assurances on the part of each party as to the ProJect Will be necessary to achIeve tho~e deSired benefits 3 1 Benefit~ to CIty The benefIts to CIty (including, WIthout ltmltatlon, the reSidents of CIty) under thIS Agreement mclude, but are not lImIted to (a) payment of traffic and parkIng mitIgation Impact fees, (b) the provI~lon of additIOnal restaurant uses, (c) seismiC retrofit of an eXI~tmg vacant buIldmg of locally hlstoncal SIgnIficance, (d) Improvements to roadway~, parkways, and alley~, (e) the payment of m heu tees for the construction of publIc faCIlIties and servlce~, (f) an mcrease m property tax revenue~ and other revenue~ to be denved by CIty, mcludmg sale~ tax, and (g) the payment of a fee to the CIty to proVide addItIOnal parkway trees and a pubhc seatmg area on Mam Street, not to exceed $5,000 l. \WIJ'iI\cUP\CUP92-21 AC12\L\\'\U7-16-91 3 Bllchell 209 Main Sheet L P Development Agreement July, 1993 3 2 Benefits to Developer Developer has expended and wIll contmue to expend substantial amounts of tIme and money on the planning and development of the ProJect In addItIon, Developer Will expend sub~tantIaI amounts of tune and money m contrIbutmg to the provlSlon of public servIces m connection WIth the Project Developer would not make such additIOnal expendItures WIthout the nghb conferred by thIs Agreement and such addItional expendItures Will be made m reliance upon thIs Agreement The benefit to Developer under thIs Agreement consIsts of the assurance that Developer wIll preserve the nght to develop the Property as planned and as set forth m the Development Plan 4 Interest of Developer mtereM m the Property Developer represents that Developer has a legal 5 Bmdme: Effect of A!!ree1l1ent The burdens of thl~ Agreement bmd, and the benefits of thIS Agreement mure to, the ~ucce~sors In mterest to the partle~ hereto 6 Term The term of thIS Agreement shall be twenty years 7. TIme of Performance The terms and proVIsIons of thl~ Agreement shall expIre two (2) years from the EffectIve Date unless all bulldmg permlt~ reqlllred to complete the development of the Project as contemplated by the Development Plan have been ISSUed and the reqUIred certIficates of occupancy Issued 8 Change~ m Prolect Developer shall not be entItled to any change, modIficatIon, revIsIon or alteratIOn m the Development Plan relatmg to the permItted uses of the Property, the denSIty or mtenslty of use, the maxImum heIght and size of proposed bluldmgs or the provIsIon of land for re~ervatIon or dedication for publIc purposes WIthout revIew and approval by those agencies of CIty approvmg the Development Plan m the firM mstance Subject to the foregomg proVISIOns of thIS Section 8, CIty acknowledges that Developer may ~eek amendments to entItlements to use and new entItlements to u~e m connectIon WIth the development of the Project The approval of any such amend1l1ent~ or new entltleI11ent~ to u~e shall be m the sole discretIOn of the CIty 9 Indemm1icatlOn and Legal ChalIenge 9 I IndemnificatIon In addItion to ItS duties under SectIon 9 2, Developer agrees to and shall hold CIty, ItS officers, agents, employees, and representatIves harmless from liabIlIty for damage or clauns for damage for personal mjury mcludmg death and claIms for property damage whIch may ame from the actIVIties of Developer or tho~e of Developer's contractors, subcontractors, agents, employees or other per~on~ actmg on Developer's behalf whIch relate to the Project, whether those act1V1tle~ occur before or after the Effective Date hereof Developer agree~ to and shall mdemnlfy and defend CIty and It~ officers, agents, employees, and representatlve~ WIth coun~el acceptable to CIty from actlOn~ for damages caused or alIeged to have been caused by reason of Developcr's actIVItIes In connection WIth the ProJect, regardles~ of whether the CIty prepared, ~upplIed or approved the plan~ or specIficatIOns for the Project 9 2 Legal ChalIenge In the event of any legal actIOn chalIengmg the valid- Ity, appllc.abllIty, or mterpretatlOn of any proVISIon of thl~ Agreement, any of the entItlement documents pertammg to the PlOject mcludmg, WIthout lllmtatIon, the CIty's General Plan, Zoning Ordmance, CUP 92-23, Vanance 92-3, Negative Dec.laratIon 93-3 or any other (, \Wp'H\C.IJP\t.WIl92-21 A(.2\LW\07 16-91 4 Bllc.hell 209 Main Sheet L P DevelopnU"nr Ag1eemenl July, 1993 envIronmental documentation prepared for the Project, or any other ~upportlng document, the Developer shall mdemmfy, defend and hold harmless the City, Its officers, agents, employees and representatIves from and agaInst all lIabilIty, costs and expenses, mcludmg attorneys' fees, mcurred by CIty or awarded agaInst CIty m relation to such actIOn The CIty shall have the nght to select counsel of Its chOIce subject to the nght of Developer to reasonably reject any partIcular attorney or firm The partIes hereby agree to cooperate m defendmg such action In the event of any htlgatIon challengmg the effectIveness of thIS Agreement, or any portion hereof, thIS Agreement shall remam m full force and effect whIle such litIgation, mcludmg any appellate reView, IS pendmg, unless otherwIse ordered by the court. Absent Issuance of an Injunction, Developer may elect to continue development under thIS Agreement pendmg completIOn of the lItIgatIon but It shall do so at ItS sole Tlsk, and CIty shall not be lIable for any loss suffered as a result thereof 10 Vested RH;~ht By entermg mto thIS Agreement and relymg thereon, Developer IS obtaIning a vested nght to proceed WIth the Project m accordance WIth the Development Plan and CIty IS secunng certam publIc benefits whIch help to alleVIate current or potential problems m CIty and enhance the publIc health, safety and welfare CIty therefore agrees to the followmg 10 I No Confllctmg Enactments Except as otherwl~e proVIded hereIn, neIther the CIty Council of CIty nor any other agency of CIty shall enact an ordmance, policy, rule, regulation or other measure applIcable to the Project whIch relates to the rate, tlmmg or sequencmg of the development or constructIon of all or any part of the ProJect or whIch IS otherwIse m conflIct WIth thIS Agreement ThIS Section shall not restnct the City's abIlIty m the event of a publIc emergency to take such reasonable measures under ItS police powers to protect the public health, safety and welfare as It deems nece~~ary to deal WIth such emergency even If such measure~ are mcompatIble WIth other terms of thiS Development Agreement 10 2 Intent of Partle~ No moratonum or other lImItatIOn (whether relatmg to the rate, tUnIng or sequencmg of the development or construction of all or any part of the ProJect and whether or not enacted by mltIatIve or otherwIse) affectmg subdIVIsIon maps, bUlldmg permlt~, occupancy certificates or other entitlements to use approved, I~SUed or granted wlthm CIty, or portlon~ of CIty, shall apply to the Project to the extent ~uch moratonum or other limItatIOn IS m conflIct WIth thIS Agreement Notwlth~talldl11g the foregomg, should an ordmance, general plan or zomng amendment, measure, moratonum, polIcy, rule, regulation or other lImItatIon enacted by cltIzen~ of City through the mltlatlve proce~s be determmed by a court of competent junsdlctIon to mvalldate or prevaIl over all or any part of thl~ Agreement, Developer shall have no recour~e agamst City pur~uant to thIS Agreement, but shall retam all other nghts, claIms and cau~es of action at law or m eqlllty whIch Developer may have mdependent of thIS Agreement The foregomg ~hall not be deemed to lImIt the Developer's nght to appeal any such determmatlon of ~uch ordmance, general plan or zOning amendment, measure, polIcy, rule, regulation, moratonum or other lImItatIOn whIch purports to mvalIdate or prevail over all or any part of thIS Agreement CIty agrees to make all rea~onable efforts to cooperate with Developer to mamtam thIS Agreement m full force and effect II Public Worh If Developer IS reqUIred by thIS Agreement to construct any publIc works faclllues which will be dedIcated to CIty or any other publIc agency upon completIOn, Developer shall con~tru(.t such works to the specifIcatIOns of the Agency to whIch the works are to be dedIcated C \WP~I\( UP\(..1JP92-21 Afi2\LW\U7-16 91 5 BIIL/1e/l 209 MlUn Street L P De\,'ellJl'ment Ag't't'ment July, 1993 12. General Development of the PrOJect 12 1 Pr01ect While thIs Agreement IS m effect, Developer shall have a vested nght to develop the Project m accordance With the terms and condItions of thiS Agreement, and CIty shall have the nght to control the development of the ProJect m accordance With the terms and condItIOns of thIS Agreement Except as otherWIse specIfied m thIS Agreement, the Development Plan shall control the overall desIgn, development and construction reqUIred m connectIOn WIth the ProJect and all on-sIte and off-slte Improvements and appurtenances m connectIon therewIth, mcludmg, WIthout IllmtatlOn, all mItigation measures requITed m order to mmllmze or elllmnate any potentIally SIgnificant envIronmental effects The permItted u~s of the Property, the denSIty and mtenslty of use, the maximum heIght and Size of the subJect bUIldmg, the prOVI\IOnS for reservatlOn and dedication of land for pubhc purposes and other terms and condItIOns of development applIcable to the Property shall be those set forth m the Development Plan 12 2 Effect of Agreement on Land Use RegulatIOns The rules, regulations and offiCial poliCIes governmg permItted u~e~ of the Property, the denSIty and mtenslty of use of the Property, the maxImum height and size of proposed buIldmg~ and the deSIgn, Improvement and constructIOn standards and specIficatIOns apphcable to development of the Property are those rules, regulations and offiCIal polICIes m force as of the Agreement Date In connectlOn WIth any approval whIch CIty 1~ permItted or has the rIght to make under thIS Agreement relating to the Project, or otherwl~e under ItS rules, regulatIons and ofhclal pohcles, CIty ~hall exercise ItS dIscretIOn or take action m a reasonably expedltlou~ manner whIch comphe\ and IS consIstent WIth the Development Plan and the standards, terms and condItions con tamed m thIS Agreement, and m a manner which Will not mterfere WIth the development of the ProJect for the uses and to the heIght, denSIty and mtenslty speCIfied m thiS Agreement or WIth the rate of development selected by Developer CIty ~hall accept for proces~mg and tllnely 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 appllcatlOn shall be proces~ed m the normal manner for processmg such matters 123 Traffic and Parkmg MltIl:atlOn ContnbutlOn Developer shall contnbute to CIty the sum of Forty-two thousand fifty-four Dollars and eIghty-three cents ($ 42,054 83) to mItigate traffic and parkmg Impacts ammg from the ProJect ThIS amount 1~ $ 19,05483 m traffic Impact fees due pursuant to Seal Beach CIty Code, Chapter 22B, and an mterun in-lIeu fee of $ 3,50000 per parkmg space (23 spaces), mmus credIts based upon the benefit~ to the CIty and reSIdents of the City ansmg from the proJect 124 Development Fees Except as prOVIded m Section 13 of this Agreement, CIty shall not, WIthout the pnor wntten consent of Developer, Impose or mcrease any fees apphcable to the development of the property or any portIOn thereof, or Impose any such fees as a condItIOn to the IlnplementatlOn of the ProJect or any portion thereof, except those fees m effect on the Effective Date of thiS agreement 12 5 Subsequent ActlOns CIty shall tunely process any applications for entItlements or other dIscretionary approvals or entitlements contemplated by the Development Plan, and any con~tructlon or other permits fIled by Developer m accordance With the substantive development ~tandards set forth m the Development Plan 13 Rules. RegulatIOns and OffiCIal Pohcles 13 1 New Rules ThIS Agreement ~hall not prevent City from applymg the followmg new rule~, regulations and pohcles C \Wplj1\{ Ull\<' UP92 2'\ ACl2\1 WlU7.16.cn 6 8/1<lIell 209 M"'n Street L P Development AgreenIPnt July, 1993 (a) Processmg fees and charges Imposed by City to cover the estimated actual costs to CIty of processmg applIcatIOns for development approvals, for mOnltonng complIance WIth any development approvals, or for momtormg complIance WIth envIronmental Impact mItigation measures (b) Procedural regulatIons relating to heanng bodIes, petItions, applIcatIOns, notices, findmgs, records, heanngs, reports, recommendatIon~, appeals and any other matter of procedure (c) RegulatIOns govermng construction standards and specIfications mcludmg, WIthout lImItatIOn, the CIty's BUlldmg Code, Plumbmg Code, Mechamcal Code, Electncal Code, and FIre Code proVided that such constructIOn ~tandard~ and specificatIOns are applIed on a CIty-wIde baSIS (d) Regulations whIch are not m conflIct with the Development Plan or thIS Agreement. (e) RegulatIons whIch are m conflIct WIth the Development Plan or thiS Agreement to whIch Developer has consented m wntmg 13 2 CIty Parkmg Program Developer hereby agrce~ to partIcIpate m any such m-lIeu parkIng program as has been or shall be establIshed by the CIty CounCIl applIcable to busmes~ tenants and/or property owners m the Old Town-Mam Street area for an amount equal to twenty-three (23) spaces Any changes to the total parkIng reqUIrement for the sIte shall cause the modIficatIon of the rate of partICIpatIOn m the m-lIeu program, subject to Planning CommiSSIOn approval The Developer shall execute and cau~e a covenant to be recorded on the title of the property which stipulates that twenty-one (21) parkmg spaces are reqlllred for the restaurant use of the property, pursuant to the Code of the CIty of Seal Beach ~ 28-1304(4), and two (2) parkmg space~ are reqlllred for the second story office u~e of the property, pursuant to the Code of the CIty of Seal Beach ~ 28-1203, for a total of twenty-three (23) parkmg spaces In the event that future action by the CIty CounCil results In further coMs per space, Developer shall be entItled to a credIt of $ 23,000 00 paId under thl~ Agreement pursuant to Section 12.3. 13 3 Subsequent Acl1on~ and Approvals In accordance WIth Government Code Section 65866, thIS Agreement shall not prevent CIty m subsequent actIOns applIcable to the Property from applymg new rules, regulatIons and polIcle~ which do not conflIct With those eXlstmg rules, regulatIOns and polICies set forth m the Development Plan, nor shall thIS Agreement prevent CIty from denymg or condItionally approvmg any ~ub~equent development project apphcatlOn on the baSIS of such eXI~tmg or new rule~, regulal10ns and pohcle~ 13 4 State 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 provI~lOns of thIS Agreement, such provl~lOn~ of thIS Agreement shall be modIfied or suspended as may be necessary to comply WIth such state or federal laws or regulatIons; proVIded, however, that thiS Agreement ~hall rem am m full force and effect to the extent It IS not mconsl~tent WIth such law~ or regulations and to the extent such laws or regulatIons do not render such remammg prOVISIOns unpractIcal to enforce 14 Amendment or Cancellation of Agreement ThiS Agreement may be amended or canceled m whole or m part only by mutual con~ent of the partle~ m the manner proVided for m Government Code SectIon 65868 C \Wll'iI\(.UP\l.1J1'92-21 A(12\LW\U7-16-91 7 BI\<heU 209 Maln Street L P D~vel()p",ent Agreement July, 1993 15 Remedies (a) Specl fic Performance Due to the nature and scope of the Project, PartIes acknowledge that money damages and remedIes at law generally are Inadequate and that specIfic performance IS appropnate for the enforcement of thIs Agreement Therefore, the remedy of specific performance shall be avaIlable to all PartIes hereto (b) Mandamu~ The Parties hereby stipulate that the CIty's performance of thIs Agreement IS compnsed of Immstenal, non-dIscretionary dutIes whIch the law specIfically enjoms and administrative actions taken as the result of proceedmgs m whIch by law heanngs are reqUIred to be gIven, eVIdence IS reqUIred to be taken and discretion m the determmatlon of fact~ IS vested m the CIty, and that Developer shall be entitled to obtaIn relIef m the form of a wnt of mandate m accordance wIth Code of CIVIl Procedure Section 1085 or Section 1094 5, as appropnate, to remedy any default by CIty of ItS oblIgatIOns and dutIes under thiS Agreement Nothmg m thIS paragraph (b), however, IS mtended 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 Remedle~ ThIS Section 15 shall not lllmt any other nghts, remedIes, or causes of action that any Party may have at law or eqUIty. (d) Any legal actIon shall be brought m the Supenor Court for Orange County, CalIforma 15 I CIty Not Liable For Damages It IS acknowledged by the Parties that CIty would not have entered mto thIS Agreement If It were to be liable m damages under or WIth respect to thIS Agreement or the applicatIOn thereof Consequently, and except for the payment of attorneys fees m a(.cordance With Section 20 below, CIty shall not be liable m damages to Property Owner, Developer, or to any assIgnee, transferee or any other per~on, and Developer and Property Owner covenant on behalf of themselves and theIr \uccessors m mterest not to sue for or claIm any damages (a) for any breach of, or whIch anses out of, thiS Agreement, (b) for the takmg, lI11pamnent or restnctlon of any nght or mterest conveyed or proVIded hereunder or pur~uallt hereto, or (c) ammg out of or connected with any dIspute, controver~y or Issue regardmg the applIcatIOn or Interpretation or effect of the provlslon~ of thl~ Agreement, proVided, however, that the foregomg does not lunlt the lIabIlity of CIty, If any, for damages whIch (I) are not for a breach of thIS Agreement or whIch do not anse under thIS Agreement, (ll) are not with re~pect to any nght or mterest conveyed or proVIded hereunder or pur~uant hereto, and (111) do not ame out of or which are not connected WIth any dIspute, controver\y or I~sue regardIng the application, interpretation or effect of the provIsIons of thIS Agreement to, or the applIcatIOn of, any CIty rules, regulations or offiCial poltcles. 15 2 Breach By ActIon of the Electorate The PartIes hereby warrant that each enters mto thIS Agreement WIth the undentandmg that the Development Agreement Law authonzes thIS Agreement to bmd the CIty even as to actlOll~ taken by the voters of the Clty. If, a court of competent Junsdlctlon enters a final, non-appealable order to the contrary and the (. \WP'iI\<..IIP\<.. UP92~2'1 A02\LW\07.16 91 8 BI\c1reU 209 Main Street L P Dfwwpn~ntAgrfe~nt July, 1993 CIty defaults on Its oblIgatIons under the Agreement wlthm the meaning of Section 15 solely or pnnclpally due to an actIOn taken by the electorate of the City m the exercIse of the reserved powers of InitiatIve and referendum, thIS Agreement shall be modIfied or su~pended to the extent requIred by Government Code SectIOn 658695 and Developer's TIght to seek specific performance, a WTlt of mandate, or other mandatory relIef shall be lImIted by such force as the action taken by the electorate may have m lIght of the Development Agreement Law as determmed by any court of competent junsdlctlon, m whIch case Developer's pnnclpal remedy shall lIe m reformatIon of thiS Agreement 16. PerIodIc ReVIew of ComplIance WIth Agreement 16 I PeTlOdlC ReVIew City and Developer shall review thIS Agreement at least once every SIX (6) month~ from the date thIS Agreement IS executed m accordance wIth the procedures set forth m SectIon 28-2766 of the Code of the CIty of Seal Beach, CalIfornIa City shall notIfy Developer m wntmg of the date for review at least tlllTty (30) days pnor thereto 162 Good FaIth Compliance Dunngeach peTlodlCrevlew, Developer shall be reqUIred to demonstrate good faIth compliance WIth the terms of thiS Agreement 17 Event of Default by Develooer If CIty determines on the bam of substantIal eVidence that Developer has not complied m good faith With the term~ and condItions of thIS Agreement, CIty shall, by wntten notIce to Developer, ~peclfy the manner m whIch Developer has failed to so comply and state the steps Developer mu~t take to bTlng It~elf Into complIance If, wlthm sIxty (60) days after the effective date of notIce from CIty speclfymg the manner m whIch Developer ha~ faIled to so comply, Developer does not commence all ~teps reasonably necessary to bnng It~elf mto complIance as reqlllred and thereafter dilIgently pursue such steps to completIOn, then Developer shall be deemed to be 111 default under the terms of thIS Agreement and CIty may termmate thl~ Agreement, seek speclhc pcrformance as ~et forth m Section 15, or Invoke any other remedle~ afforded by law 18 WaIvers and Delay~ 18 I WaIver FaIlure by a party to mmt upon the stTlct performance of any of the prOVIsions of thIS Agreement by the other party, and faIlure by a party to exercIse ItS TIghts upon a default by the other party hereto, shall not constItute a waIver of such party's TIght to demand stnct complIance by such other party m the future 182 ThIrd Partle~ Nonperformance ~hall not be excu~ed because of a faIlure of a third person except as proVided m Section 183 below 18 3 Force Ma1eure NeIther party ~hall be deemed to be m default where faIlure or delay m performance of any of It~ obhgatIons under thiS Agreement IS caused by floods, earthquakes, other Acts of God, fire~, wars, nOls or sllmlar hostilitIes, stnkes, other labor dIfficulties, federal or ~tate government regulatIons, court actIons, or other causes beyond the party's control 19 Notlce~ All notIces reqUIred or prOVIded for under thIS Agreement shall be m wTltmg and delIvered m per~on or depo~lted In the United States mall, po\tage prepaId and addressed a~ follows l. \WP'iI\UJP\(.lll'92 21 A(12\LW\07-16-91 9 BI\<hell 209 Mam Sfleet L P Development Agret'n~nt July, 1993 TO CITY CIty of Seal Beach 211 EIghth Street Seal Beach, Callfonlla 90740 Attn DlTector of Development ServIces TO DEVELOPER. Blschell 209 Mam L P 1433 Webster Street, SUIte 201 Oakland, CalIfornia 94612 EIther party may change the address stated herem by glvmg notIce, m wntmg, to the other party and thereafter notices shall be addressed and sublmtted to the new address NotIces shall be dcemed receIved upon penonal delIvery or upon the thIrd (3rd) day followmg deposIt m the U Small m the manner ~et forth above 20 Attorneys' Fees If legal actIOn IS brought by any party agamst another for breach of thiS Agreement, or to compel performance under thiS Agreemcnt, the prevaIling party shall be entItled to an award of actual attorney~' fees and co~ts 21 Tran~fers and A~~I!!nment~ 21 I Right to Assign Developer shall have the nght to ~ell, tran~fer or assIgn ItS respectIve mterest m the Property m whole or m part (proVIded that no such partIal transfer shall be permItted to cause a VIolatIon of the SubdiVISIon Map Act, Government Code SectIOn 66410, et seq ) to any person, partner~hlp, jomt venture, firm or corporatIon at any tIme durmg the term ofthl~ Agreement, proVIded, however, that any ~uch sale, transfer or a~slgnment shall mclude the a~\lgnment and assumptIon of the TIghts, dutle~ and obhgatlOns ansmg under or from thIS Agreement 22 Prolect a~ a Pnvate Undertakmg It l~ specIfically under~tood and agreed by and between the partIes hereto that the development of the Project IS a pnvate development, that neIther party IS actmg as the agent of the other m any respect hereunder, and that each party IS an mdependent contractmg entIty with respect to the terms, covenant~ and condItions contamed m thIS Agreement No partnershIp, jOint venture or other aSSOCIatIon ot any kmd IS formed by thIS Agreement The only relatlOn~hlp between CIty, on one hand, and Developer, on the other, IS that of a government entIty regulatmg the development of pnvate property 23 Emment Domam No provIsIon of thIS Agreement shall be construed to lImIt or restnct the exercIse by CIty of ItS power of emment domam 24 Authonty to Execute The persons executIng tlm Agreement on behalf of Developer warrant and repre~ent that cach has the authonty to execute tlll~ Agreement on behaJf of the Developer and to bllld Developer to the performance of ItS re~pectIve oblIgations hereunder 25 RecordatIOn ThIS Agreement and any amendment or cancellation hereto shall be recorded m the Othce of OffiCIal Records of the County of Orange, by the City Clerk wlthm the penod reqUIred by Secl10n 65868 5 of the Government Code t. \WP~1\( Ul>\t.UI-92-21 A02\LW\1I7-16-91 10 Bl\chell 209 Mam Street L P Development Agreement July, 1993 26 Protection of Mortl!age Holders Nothmg con tamed herein shall lImIt or mterfere With the lIen of mortgage holders haVing any mortgage made m good faIth and for value on any portion of the Property "Mortgage holder" mcludes any beneficiary under any deed of trust encumbenng the property, and "mortgage" mcludes any deed of trust 27 SeverabIlity of Terms If any term, proVIsIon, covenant or conditIon of thiS Agreement shall be determmed mvalId, vOId or unenforceable, the remainder of thIS Agreement shall not be affected thereby to the extent such remammg proVIsIons are not rendered ImpractIcal to en force 28 Subsequent Amendment to AuthoTlzml! Statute Thl~ Agreement has been entered mto m relIance upon the provlslon~ of the ~tatute govermng development agreements (Government Code Sec.tlOn 65864 - 65869 5 mclu~lve) m effect a~ of the Agreement Date Accordmgly, subject to Section 133 above, to the extent the suh\equent amendment to the Government Code would affect the provlMons of thIS Agreement, such amendment shall not be applIcable to the Agreement unless necessary for thIS Agreement to be enforceable or unless thIS Agreement IS modIfIed pur~uant to the proVISIons set forth m the Agreement and Government Code SectIOn 65868 29 hereunder CalIfornia Intell'retatlOn and Governlnl! Law ThIS Agreement and any dIspute ansmg shall be governed and mterpreted In accordance With the laws of the State of 30 SectIOn Headml!~ All section headmgs and ~ubheadmg~ are mserted for convemence only and shall not affect any constructIon or mterpretatlOn of thIS Agreement 31 Incorooral1on of Recltah and ExhIbIts ReCitals A through K and attached ExhIbits "A" through "E" are hereby mcorporated herem by thIS reference as though fully set forth m full 32 Rules of ConstructIOn and MI~cellaneous Tenm 32 I Gender The smgular mcludes the plural, the masculIne gender mcludes the femmme, "shall" IS mandatory, "may" IS permissive 32 2 Tune of Essence Tune IS of the essence regardmg each proVISIOn of thiS Agreement m whIch time IS an element 32 3 CooperatIon Each party covenants to take ~uch reasonable actIOns and execute all documents that may be nece~~ary to achlcve the purpo~e~ and obJectives of thIS Agreement Dated , 1993 Bl~chell 209 Mam Street L P By "Developer" l. \WP'il\ClJP\c.1J1J92-21 A02\tW\07-16-93 II SlIellell 2IJ9 Main Street L P Development Agreement July. 1993 Dated . ,1993 CITY OF SEAL BEACH, a mumclpal corporatIOn of the State of California By Mayor "CIty" ATTEST By City Clerk APPROVED AS TO FORM By CIty Attorney C. \WP51\CUP\('UI"92-23 A02\LW\07-16-91 12 BI\<hell 209 Mom Street L P Development Agrt't'ment July, 1993 EXHIBIT "A" LEGAL .DESCRIPTION OF PROPERTY Lot 9 of Block 108 of Bay City Tract, as per Map recorded m Book 3 Page 19 of MIscellaneous Maps, m the Office of the County Recorder of SaId County (Orange County, Cahfornla) '" ~ '" '" C \WI-SI\CUP\CUP92-23 AL2\LW\07-16..93 13 BlIcheU 209 Mmn Sr,..1 L P Developlllt'nt AgI,""men! July. 1993 EXHIBIT "B" DEVELOPMENT PLAN PERMITS AND APPROVALS VARIANCE 92-3 CONDITIONAL USE PERMIT 92-23 (NOTE REQUIRED BUILDING PERMITS AND ALL OTHER APPROPRIATE PERMITS WILL BE ATTACHED UPON ISSUANCE) C \WP'il\l.UP\CUP92-23 AG2\LW\07-16-93 14 BI\</rell 209 Morn Street L P Development Agreement July, 1993 EXHIBIT lie II IMPLEMENTING RESOLUTION NO. 4239 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH ADOPTING NEGATIVE DECLARATION NO 93-3, AND CONDITIONALLY APPROVING CUP NO. 92-23 AND VARIANCE NO. 92-3 TO PERMIT THE ESTABLISHMENT OF A RESTAURANT SELLING BEER AND WINE FOR ON-PREMISES CONSUMPTION AND TO PERFORM A SEISMIC RETROFIT TO THE PROPERTY GENERALLY KNOWN AS 209 MAIN STREET (BJ'S CHICAGO PIZZERIA) THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY FIND, ORDER AND RESOLVE AS FOLLOWS. Section I On November 18, 1992, BJ's Seal Beach, L P filed applIcations for CondItional Use PermIt 92-23 and Vanance 92-3 wIth the Department of Development Services SpecIfIcally, the apphcants are requestmg the followmg 1 CUP 92-23 - A permIt to operate an alcohol-related land use whIch wIll sell beer and wme for on-prelmses consumption and to perform a seIsmIC retrofit of the property generally known as 209 Mam Street (BJ's ChIcago Plzzena) 2 VARIANCE 92-3 - To vary from the commercial parkmg reqUIrements Under current Code reqUIrements, a restaurant IS reqUIred to prOVIde 1 parkIng space per 100 square feet of gros~ floor area (SBMC SectIOn 28-1304(4)) "on the property on whIch the blllldmg IS located or wlthm 300 feet of the bUlldmg" and a loadmg space (SBMC Section 28-1303) Due to phY~lcal constramts, the proposal only proVIdes 3 of the 26 parkmg ~paces reqUIred by the Code on sIte In addItion, the Code reqUIres a loadmg space and landscapmg SectIon 2 Pursuant to 14 CalIf. Code of Regs ~ 15025(a) and ~~ II C and III of the CIty's Local CEQA GUldehne~, ~taff prepared an Initial Study and a Negative DeclaratIOn, whIch were Circulated for publIc revIew and comment from Febnlary 17, 1993 to March 15, 1993, In complIance With the provl~lons of the Callforl11a EnVIronmental QualIty Act and the CIty's Local CEQA GUldelmes Section 3 A duly noticed public heanng wa~ held before the CIty CouncIl on June 14, 1993 to conSider the applIcatIOn Wntten eVlden(,e was subnlltted for and agaInst the project At the publIc heanng, the applIcant and over 20 persons ~poke m favor of the request and 2 persons spoke m opposItion C \WI''iI\t.UP\CUP92.21 AC.2\LW\1I7-16 91 15 B/lchell 209 Mam Street L P Development Agret'~nt July, 1993 SectIOn 4 The record of the hearmg mdlcates the follOWing (a) The subject property IS located on the westerly SIde of Mam Street approximately 130 feet north of the center of the intersectIon of Mam Street and Central Avenue. The property IS slInIlar m SIze and ~hape, bemg flat and rectangular, to ItS neIghbors and to other uses m the zone (b) The subject property IS legally descnbed as Lot 9 of Block 108 of Bay City Tract, as per Map recorded m Book 3 Page 19 of MIscellaneous Maps, m the Office of the County Recorder of SaId County (Orange County, CalIfornia) (c) The subject bUlldmg was bUIlt m approxImately 1925, and IS recognized by the CIty's Planning Comml~SlOn as a locally recognized hlstonc structure State law reqUIres that the buIldmg be retrofitted to comply WIth eXlstmg ~elsmlc safety standards (d) Until 1991, and for 40 years pnor to 1991, the ~ubject bUlldmg was devoted to restaurant use, most recently by the Green Pepper Restaurant Such restaurant use was establIshed pnor to the CIty's current parkmg reqUIrements Under the CIty Code, uses establIshed pnor to changes m the CIty's parkmg reqUIrements are conSIdered legal- nonconformmg and are allowed to continue operations WIthout compliance with new parklng standards adopted subsequently to the e~tablIshment of ~uch use Accordmgly, the subJect property did not have to meet current park11lg standards (e) The Green Pepper Restaurant went out of bu~mes~ m 1991 The sIte has remamed vacant smce that tIme Two ~ubsequent proposed tenants dId not commence operatIons An applIcatIOn for an entertamment use was rejected by the Planning CommiSSIon Another applIcant chose not to deSIgn the ~elsmlc retrofit, apparently for economIc reasons Due to the vacancy In excess of nmety days, the property has lost It~ legal nonconformmg status, and any use proposed tor the sIte must comply WIth eXlst11lg parkmg reqUIrements. (f) The subJect property IS located on Mam Street, whIch IS a commercIal stnp fully developed WIth a vanety of commercial uses The ~urroundlng land uses and zOning are as follows NORTH, EAST & SOUTH A mIxture of commercIal u~e~ m the ServIce CommercIal zone, (C-l) WEST A mIxture of smgle-famlly and multI-famIly reMdentlal dwellIng~ m the Re~ldentJaI HIgh DenSIty zone, (RHD) (g) A parking study performed m conjunctIOn WIth thIS applIcation demonstrates that public parkmg faCIlities wlthm 300 feet of the ~Ite are often fully OCCUpIed, and thIS IS espeCially true of the 100 block of Mam Street and the 200 block which mcludes the subJect property (h) The bUlldmg and property at 209 Mam Street cannot proVIde the on-site parkmg reqUIred for any new use WIthout demohtlOn of the eXlstmg structure Further, no off- site facIlIties wlthm three hundred feet ot the sIte can prOVide adequate parkmg However, a publIc parkmg lot on 8th Street, owned by the CIty, abuts the 300 foot radlU~ and has ample parkIng for the proposed use (I) In connection WIth thIS applIcatIOn and other recent apphcatlons, the CIty has performed certam parkmg ~tudles to, Inter aha analyze present supply and future needs; determme the Impacts ammg from the proposed use, con~lder whcther current Code parkIng c \wpn\<"UP\l.1IP92-2'\ ACJ2\LW\07-16-91 16 BI\<l1ell 209 MlIIn Sf/eel L P Development Agreement July, 1993 requIrements should be modified, and to provIde additIOnal parkmg and other mItIgation measures to alleViate the Impacts ansmg from the proposed use, as well as others To mitIgate any Impacts arISIng from the proposed use and other proposed uses, a reserve fund has been establIshed m the 1993-1994 FIscal Year budget for the acqUIsItion and Implementation of a publIc transit trolley. In additIOn, the City CouncIl has authoTIzed the use of CIty-owned parkIng facIlItIes to satisfy parkIng reqUIrements and the preparatIon of an amendment to the Mam Street SpecIfic Plan to establIsh more fleXIble and appropnate parkmg ~tandards CouncIl has directed staff to conSider whether the cIty-wIde commercial parkIng standards should be modIfied so that uses on MaIn Street, lImited by phYSIcal constramts, may satIsfy parkmg needs by m-lIeu fees, parkIng mitigatIon fees, or off sIte facIlItIes, rather than provldmg parking onslte Section 5 Based upon the eVidence m the record, mcludmg the facts stated m ~ 4 of thiS resolutIOn, and m the envlTonmental documentation prepared m conjunction WIth thIS project, and pursuant to ~~ 28-2403 I and 28-2500 - 28-2504 of the CIty's Code, the CIty Council hereby fmds as follows (a) The record reveals that the re-e~tabhshment of a restaurant use on the subject property, as conditioned and mItIgated herem, Will not have any apprecmble Impact on traffic to and from the use The eXI~tmg roadway~ whIch serve the ~lle are adequate to serve the proposed use and accordmgly the applIcation IS con~lstent WIth the goals, standards, and polICIes of the CirculatIOn Element and Growth Management Element CUP No 92-23 IS consIstent WIth the provlslon~ of the Land U~ Element of the City's General Plan, which proVides a "servIce commercIal" deSIgnation for the subject property and permIts restaurants servmg alcohol subject to the Issuance of a CondItional Use PermIt As COnditIOned, VarIance 92-3 Will not adversely affect the General Plan because reqmTIng the Applicant to mItigate parkmg Impacts IS con~lstent With the polIcy of the General Plan to reqmre new uses to prOVide adequate parkmg for commerCIal uses wlthm the ImmedIate VICInIty of the ~ubject sIte The parkmg demand caused by the propo~ed use can ea~lly be accommodated by the eXIsting CIty parkmg facllttIes on 8th Street, whIch IS just beyond the 300 toot radiUS, and by other avaIlable parkmg Approval of the project allows ItS owner a rcasonable economIc u~e of the property of a type proposed m the Land Use Element The use IS also conmtent With the remaIning elements of the CIty's General Plan as the polICIes of tho~e elements are consIstent With, and reflected m, the Land Use Element Accordmgly, the propo~ed use I~ consistent WIth the General Plan (b) As conditioned herem, the bUIlding and property at 209 Mam Street are adequate m SIze, ~hape, topography and locatIOn to meet the nccd~ created by the proposed use of the property The subJect propcrty has been devoted to the use proposed by applIcant -- restaurant u\e -- for over 40 years The bUIlding, constructed m approxl1nately 1925, has proven to be adequate for re~taurant uses WhIle the proposed use cannot prOVIde parkmg onslte or upon any sIte wlthm 300 feet m ~tnct compliance WIth the Code, the pnor occupant, who enjoyed legal nonconformmg status, lIkewl~e dId not proVIde onslte parkmg As stated above, the property lost ItS legal-nonconfoTnung status due to a dlscontmuatIOn of use based upon a number of factors beyond the control of the applicant Thus, the Code requIres 23 spaces for the proposed use However, the parkmg demand caused by the proposed use can easily be accommodated by the eXlstmg CIty parkmg faCIlItIes on 8th Street, whIch ISjuM beyond the 300 foot radIUS, and by other avaIlable parkmg (c) ReqUIred adherence to apphcable bUlldmg and fire codes en~ures there WIll be adequate water supply and utilIties for the propo~ed u~e (d) As condItIOned hereby, approval of a full service reMaurant that sells beer and wme at the ~Ite WIll be compatible With ~urroundmg uses and the commulllty m general and WIll not be detnmental to the neIghborhood The consumptIOn of beer and wme m connectIOn l \WI';I\l..1JP\t.UP92-21 ^(.2\1 W\1l7-16.Ql 17 B"c/rel/ 209 MOIn Street L P Developnu-nt Agleeltlt'nt Joly, 1993 with food consumed onslte wIll not have an adverse Impact on surroundmg uses, and for the reasons stated m paragraph (a) of thIS SectIon (e) The City CouncIl hereby affirms that It mdependently revIewed and analyzed proposed NegatIve Declaratlon No 93-3 pnor to actmg on the appeal and hereby finds as follows' (I) Negative DeclaratIon No 93-3 was prepared by CIty Staff and therefore reflects the mdependent judgment of the CIty, (2) There IS no substantIal eVIdence m the record which would support a faIr argument that approval of the applIcatIOn nught have a slgmficant envIronmental Impact, (3) Approval of thIS applIcatIOn mvolves no potential for adverse effect, either mdlvldually or cumulatively, on WIldlIfe resources and Will not have an adverse Impact on fi~h and wlldhfe It IS the re-estabhshment of an urban use on an urbanized SIte, and has no Impact on WIldlIfe re~ources, smce thele are no IdentIfied wIIdhfe resources on or adJaccnt to the site The CIty Councll directs the DIrector of Development Services to fIle the appropnate De Mmunts Impact Fmdmg for the Cahfornla Department ofFIsh and Game CertIficate of Fee Exemption (1) Pursuant to Government Code SectIon 659065, the CIty may grant a vanance from parkmg reqUIrements proVIded certam condll1on~ are met Although thIS sectIon applIes to general law CIties, the CIty CounCil hereby finds the legl~latIve policy reflected m thIS statute IS appropnate to the clrcum~tances of the charter city of Seal Beach SectIon 65906 5 prOVIdes, m relevant part "[A] vanance may be granted from the parkmg reqUIrements of a zOning ordmance m order that some or all of the reqUIred parkmg space~ be located off sIte, . ,or that m-heu fees or facllltle~ be proVIded m~tead of the reql/lred parkmg spaces, If both the followmg conditions are met (a) The vanance wIll be an mcentIve to, and a benefit for, the nonreSIdentIal development (b) The varIance WIll faCIlItate acces~ to the nonreSIdential development by patrons of publIc transIt faclhtl~, " The reqUIrements set forth m SectIon 65906 5 are satisfied here AlIowmg the ApplIcant to satI~fy a portIOn of ItS parkmg reql/lrements through m lIeu payments, parking mItIgatIon Impact fees and through the provIsIon of parking at the 8th Street lot proVIdes both an mcentlve and benefit for the proposed nonreSIdential development Further, granting the vanance, subject to certam conditions, would faclhtate acces~ to the propO\ed restaurant by patrons of the proposed public transIt trolley, and would contnbute to a density of commercIal uses necessary to sustain public transit (g) In accordance With Government Code Section 659065, there IS no reqUIrement to show speCIal circumstances to Ju~tJfy the grantmg of a parkmg vanance Nonetheless, there are specIal circumstances whIch warrant the vanan(,e here, mcludmg the SIte'S location, surroundmgs, hl~toric nature and the availabIlity of public parkmg nearby. In order to proVide the Code reqll1red parkmg, It would be necessary to demoll~h the eXlstmg structure As preVIOusly noted, the ~tructure ha~ been de~lgnated by the CIty's Planning ComnusslOn a~ a locally recognized hlstonc ~tructure Further, the sIte IS m close proximity C \WP'iI\CUP\t.lJP92-23 A(.2\LW\U7-16-91 18 Bllchell 20Y MOIn Stuet L P Development Agreettll'nt Jill)'. 1993 to the CIty-owned 8th Street parkmg lot, WhICh, by CouncIl actIOn, has been opened to serve the patrons of the proposed re~taurant. Indeed, such lot abuts the 300 foot radllls of the subJect property. But for the Code reqUIrement that a use provide parkmg wlthm 300 feet, there would be no need for a vanance Accordmgly, an alternatIve ground to grant thIS vanance IS to treat It as a vanance from the 300 foot reqUIrement The propo~ed use WIll meet ItS parking needs through the use of avaIlable parking wlthm 400 feet. Special cIrcumstances also appear because there IS no space on wlthm 300 feet of the site to proVIde the reqUIred parkmg Without destroymg all or part of a structure whIch has a remamlllg useful life and of whIch ItS owner must be allowed a rea~onable economIc use (h) Stnct applIcatIOn of the ZOning Code depnve~ the ~ubject property of pnvlleges enjoyed by other property m the same VICInity and zone Other restaurant uses along Mam Street lIkeWIse cannot, and do not proVIde on-~Ite parkmg Such uses, however, have been m contmuous operation a~ restaurants and have not lost theIr legal-nonconformmg status. The condItional grantmg of the requested vanance Will not con~tltute a grant of ~peclal pnvlleges mconslstent With other lllllltatlOns upon other propertIes m the ~ame vlclmty and zone because, as condItIoned, the propo~ed use WIll meet ItS parkmg demand through the alternatIve means proVIded m the condItions SectIon 6 Based upon the foregomg, the CIty CouncIl hereby adopts Negative DeclaratIOn No 93-3, condItIonally approves ConchtlOnal Use PermIt 92-23, grantmg an a1cohol- related land u~e permIt allowmg the on-preml~e con~umptlon of beer and wme m conjunctIon WIth a proposed restaurant, and conditionally approves Vanance 92-3, a vanance from Code proVISIons requmng a loadmg space, land~capmg, and provl~lOn of 23 parkmg spaces wlthm a 300 foot radIUS of the subject property, subject to the condltlon~ attached hereto as Attachment A SectIon 7 The proposed mItigatIOn momtonng program attached hereto as Attachment "B" IS hereby adopted SectIOn 8 The tllne wlthm whIch JudiCial reVIew, If available, of thIS decISIon must be sought IS governed by Section 1094 6 of the Call forma Code of Civil Procedure and Section 1-13 of the Code of the CIty of Seal Beach, unless a ~horter tIme IS proVIded by other applicable law PASSED, APPROVED AND ADOPTED by the CIty CounCIl of the CIty of Seal Beach at a meetmg thereof held on the 28th day of June ,1993 by the followmg vote. AYES Councllmembers Brown. Doane. Forsythe. and Ha~tmE!s NOES CouncIl members None ABSENT CouncIl members Laszlo MAYOR c \WP'il\CUP\<..UP92-21 Am\1 W\ff1-16-91 19 BII<lIel/ 2IJ9 Mam Street L P Dt'velol'ment Ag,eement July, 1993 ArrEST CITY CLERK STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF SEAL BEACH } } } SS I, Joanne M Yeo, CIty Clerk of Seal Beach, CalIfornia, do hereby certify that the foregomg resolution IS the ongmal copy of Re~olutIon Number 4239 on file In the offIce of the City Clerk, passed, approved, and adopted by the CIty CounCIl of the CIty of Seal Beach, at a regular meetmg thereof held on the 28th day of June ,1993 CIty Clerk (. \WI'~I\CUP\C'llP92.23 A02\LW\07-16-91 20 Bl\tllell 209 Mam Sheet L P Development Ag..ement July, 1993 ATTACHMENT A, RESOLUTION NO. 4239 CONDITIONS OF APPROVAL VARIANCE 92-3 CONDITIONAL USE PERMIT 92-23 I Vanance 92-3 IS approved for the provl~lon of less than the reqUIred on-sIte parkmg, landscapmg and a loadmg ~pace WIth lumted hour~ of exclUSIVe u~e m conjunctIOn WIth the re-establIshment of a re~taurant at 209 Mam Street, Seal Beach 2 CUP # 92-23 IS approved for an on-prel1llse Alcohol Related Land U~e at 209 Mam Street and to permIt a seIsmIC retrofit, and IS ISSUed to B J's Seal Beach, L P 3 The approval of CondItional Use Pcrmlt #92-23 and Vanance #92-3 IS ~ubject to the City's approval of a Development Agreement governlllg the u~e of the subject property and the condItional approval herem ~hall confer no entitlements or nghts upon ApplIcant Nor shall the CIty be oblIgated to Issue any permits or approval~ untIl such tune as the Development Agreement has been approved, WIthout the pnor wnttcn consent of the CIty 4 ThIs Conditional U~e PermIt and Vanance shall not become effective for any purpose unless an "Acceptance of CondItions" form has been ~Igned by the apphcant m the presence of the DIrector of Development ServIces, or notanzed and returned to the Planning Department 5 ApplIcant ha~ agreed to contnbute an amount speCIfied m the Development Agreement to mItIgate traffic and parkmg Impact~ from the project The property owner shall agree to partiCIpate m ~uch m-lIeu parkmg program a~ has been or ~hall be e~tablIshed by the CIty CouncIl for the amount equal to twenty-three (23) spaces Any change~ to the total parkmg reqUIrement for the ~Ite shalJ cau~e the modIfIcatIOn of the rate of partICIpation m the m-lIeu program, ~ubject to Planning Comml~~lon approval The applIcant and/or propcrty owner ~hall sIgn aIld record the m-heu parkmg agreement, or an alternative document acc.eptable to the CIty, pnor to the Issuance of any bUlldmg permits and/or busmess hcen~e The applIcant reallze~ that thIS I~ an mtenm agreement, and a permanent agreement may result m further costs per space A covenant shall be recorded on the title of the property whIch ~tlpulates that twenty-one (21) addltlonal parkmg spaces are reqUIred for the restaurant use of the property, pursuant to the Code of the CIty of Seal Beach * 28-1304(4), and two (2) addltlon,lI are reqUIred for the ~ecol1d story office use of the property, pur~uant to the Code of the City of Seal Beach !l 28-1203, for a total of twenty-three (23) parkmg ~pace~ 6 All reqUIrements of the Orange County Health Department and the Umform BUlldmg Code shall be met pnor to occupancy 7 The restaurant u~e ~halJ not exceed the area de~lgnated on the floor plan as approved by the Planning COImms~lon C \WP'.iJ\( IJP\ClJP92-23 A02\LW\07.16-91 21 B/I<hell 2IJ9 Main Sf/eer L P Development AgreetrU'nt July. 1993 8 All con~tructlOn ~hall be m substantial complIance wIth the plans approved through Vanance 92-3 and CUP 92-23, IdentifIed as "ExhIbIt C, CondItional Use PermIt 92-23 and Vanance 92-3, Floor, Plot and Elevation Plan 9 The rear of the bUlldmg shall be posted as a no parkmg/Joadmg zone between the hours of 8 00 a m and 10 00 a m and ~hall be avaIlable for parkmg or loadmg at all other hours The execution of thl~ condItion IS subject to the revIew and approval of the DIrector of Development ServIces 10 In order to offset the lack of on-~Ite landscapmg, a fee shall be paId to the CIty to purchase a maxImum of SIX (6) street trees for the Mam Street area AddItionally, If deemed feasIble by the CIty's Engmeenng Department, a fee shall be paId to the CIty to eover the co~t of purchasmg and m~talllng an addItional pede~tnan bench on MaIn Street or other hard~cape treatments to the Sidewalk area adjacent to the ~ubject property SaId fee shall not exceed $5,000 and shall be paid as a 'liS ,000 depo~lt pnor to Issuance of a certificate of occupancy II A SIX foot tall bnck trash enclo~ure ~hall be m~talled at the rear of the stru(,ture as shown on ExhIbIt I SaId trash enclosure shall be mcluded on all future con~tructlOn sublmttals and shall be subjec.t to the review and approval of the DIrector of Development ServIces 12 The applicant ~hall furm~h the City a copy of hIs ABC IIcen~e and a copy of any condltlon~ placed on the license by the Department of AlcoholIc Bcverage Control ThIS shall be done as soon a~ the IIcen~e IS received by the applicant from the State of CalIfornia Department of AlcoholIc Beverage Control Applicant shall comply WIth all restnctlOns placed on Its llcen~e from the Department of AlcoholIc Beverage Control 13 The hours of operation shall be (a) II 00 A M to 10 00 PM., Sunday through Thunday, and (b) 11.00 A M. to II 00 PM., Fnday, Saturday, and holIdays 14 No VIdeo games or ~umlar amu\ements shall be permitted on the premlse~ 15 There shall be no extenor advertlsmg of any kmd or type, mcludmg advertlsmg dIrected to the extenor from Wlthm, promotmg or mdKatmg the availabIlity of alcoholIc beverages 16 A modIfication of the CondItional U~e PermIt ~hall be obtamed when (a) The establl~hment propo~es to change It~ type ot liquor hcen~e (b) The establl~hment propo~es to modlty any of It's current condItions of approval (c) There IS a sub\tantlal change m the mode or chdracter of operatlOn~ of the e~tabll~hment 17 The Planning ComnllsslOn re\erves the rIght to levoke or modify thl~ CondItIOnal Use PermIt If any VIolation of the apPlOved condltlon~ o(,curs, any VIolation of the Code of the CIty of Seal Beach, occurs, or for tho~e reason~ ~peclfled by ArtIcle 28, and III the manner ~peclfied m Article 25, of Chapter 28 of the Code of the CIty of Seal Beach 18 Extenor IIghtmg In the parkmg area shall be kept at a level so a~ to proVIde adequate IIghtmg for patrons while not unreasonably dl~turbmg \urrotmdmg reSIdential or commercIal area~ A IIghtmg plan shall be proVIded, subject to review and approval by C \WPSI\( U1"\CUl'92-21 A(,2\) W\07-16 91 22 B,,<lIell 209 Main Sneer L P Development Aguenlt'nt July. 1993 the Director of Development ServIces, whIch promotes nUnlmal dIsturbance to nearby residences 19 In the event staff determmes that secunty problems eXist on the site, the condItIOns of thIS permIt may be amended, under the procedures of the Seal Beach MUnicIpal Code, to reqUIre the provIsIon of addItional secunty mea~ures 20 The establIshment ~hall have a publIc telephone lI~tlng 21 It shall be the responsIbIlIty of the applIcant/licensee to proVIde all employees that sell or serve alcoholic beverages With the knowledge and skIlls that WIll enable them to comply WIth their respon~lbllItle~ under State law The knowledge and ~kllls deemed nece~sary for responsIble alcoholIc beverage ~ervlce shall mclude, but not be 11 mlted to the followmg tOplC~ and skills development (a) State laws relatmg to alcoholIc beverages, particularly ABC and penal provISIons concermng sales to mlnor~ and intoxIcated person~, dnvmg under the mfluence, hours of legal operations and penalties for VIOlatIons of these laws (b) The potentIal legal lIabllItIe~ of owners and employees of bU~lnesses dlspen~mg alcoholIc beverages to patrons who may subsequently mJure, kIll, or harm themselve~ or mnocent vIctims as a re~ult of the exce~~lve consumptIon of alcoholIc beverages (c) Alcohol as a drug and ItS effects on the body and behaVIor, mcludmg the operatIon of motor vehIcles (d) Methods for dealIng WIth mtoxlcated cu~tomers and recognlzmg underage customers The followmg orgamzatlons have been IdentIfIed by the State Department of AlcoholIc Beverage Control as provldmg trammg programs whIch comply WIth the above cntena I) Department of Alwhollc Beverage Control LEA D Program, Telcphone (714) 558-6482 2) Orange County A D E P T PlOgram, for referral to eIther the BAD D or TIP S Program Telephone (714) 568-4187 22 The knowledge and skIlls deemed ne(,es~ary for respon~lble alcoholIc beverage servIce as set forth heremabove, shall IIlclude for on-prenllSe lIcensed locatIOns, but not be lImited to the followmg addItional tOplC~ and skIlls development (a) Methods to appropnately pace customer dnnkmg to reduce the nsk that the cu~tomer WIll not leave the prenmes In an mtoxlcated manner (b) Knowledge of ITIlxology, IIlcludmg marketable alternatIves to alcoholIc beverages 23 LItter and trash I eceptacle~ ~hall be located at convement locatlon~ IIlslde and outSIde the establIshment, and operators of such e~tablIshments ~hall remove tra~h and debns on an appropnate bam so as not to cau~e a health problem There shall be no dumpmg of trash and/or gla~~ bottle~ outSIde the e~tabllshmcnt between the hours of 10 00 P M and 7 00 A M and the rear trash enclosure ~hall remamed closed and locked at all tImes when not specIfically m use and between the hours of 10 00 P M and 7 00 A M 24 The Plannmg Comml~slOn re~erves the nght to revoke or modIfy thl~ CondItional Use PermIt pursuant to ArtIcles 25 and 28 of the Code of the CIty of Seal Beach If harm or c \WP~l\l.UP\ruP92-2"\ A(.2\LW\U7.16 91 23 BII<lIeIl 209 Mmn Street L P Development AJ:leement Jllly, 1993 retaIl related problem~ are demonstrated to occur as a result of cnmmal or antIsocIal behavIOr, mcludmg but not lumted to the congregation of mmor~, vIOlence, publIc drunkenness, vandalIsm, solICItatIOn and/or lItter 25 All alcoholIc beverages sold m conjunCtion wIth the on-premise lIcensed establIshment must be consumed entirely on the premIses pnor to closmg tune The sale of alcoholIc beverages for consumption off the premIses shall be prohIbIted Con~umptlOn of alcoholIc beverages shall be prohIbited In the establIshment's parkmg area There shall be appropnate postmg of sIgns both mSlde and out~lde the IIcen~ed premIses mdlcatmg that dnnkmg outSIde the lIcensed premIses IS prohIbited by law 26 There ~hall be no lIve entertamment or dancmg permitted on the plen1ISes at any time, unle~s specIfically authonzed by a conditIOnal use permIt Is~ued by the CIty and unless such uses are consIstent With the license condItions Impo~ed by the State of CalIfornIa Department of Alcoholic Beverage Control 27 The propo~ed faCIlity ~hall comply with Chapter 13D, "N01~e Control", of the Code of the CIty of Seal Beach a~ the regulations of that Chapter now eXI~t or may hereafter be amended Should complamt~ be recelvcd regardIng nOlse~ generated by the faCIlIty, the Plannmg Comnm~lOn re~erves the nght to schedule the ~ubjcct permit for reconSIderation and may requIre the appllcant/opcrator to mItigate the n01~e level to comply WIth the proVISIOns of Chapter 13D 28 Whenever the outdoor dmmg area IS bemg utilized for the ~ale, ~ervlce or consumption of alcoholic beverages, a prenme employee shall be m attendance and mamtam contInUOUS supervl~lOn at all tunes to ensure the outdoor dmmg area doe~ not create a publIc nUIsance contrary to publIc welfare and morals 29 All alcoholIc beverages ~crved m the outdoor dmmg area mu~t be ~erved m glass con tamers 30 Intenor remodeling and structural alteration ~hall be m ~ubstantIal compliance WIth the approved plans, and construction actIvIty shall not commence un111 final blllldmg permIts have been obtaIned 31 The applIcant Will prominently dl~play the~e condll1ons of applOval m a locatIOn wlthm the busmess's customer area, m one or more 10catlOn~ ac.ceptable to the DIrector of Development Servlce~ 32 The ApplIcant shallmdemmfy, defend and save harmless CIty, Its offIcers, agents and emp10yee~ from any and all claims and losses whatsoever occurring or re~ultmg to any and all person~, flrm~ or corporatlon~ furmshmg or supplymg work, ~erVlce~, matenal~, or supplIes m connectIOn WIth the performance of the use penmtted hereby or the exercIse of the nghts granted herem, any and all c1aum, laWSUIts or actIOns ansmg from the grantmg of or the exercI~e of the TIghts penmtted by thiS CondItional Use PermIt, and from any and all clauns and losse~ occurnng or resulting to any person, firm, corporatIOn or property for damage, mj ury or death an Sing out of or connected WIth the performance of the use permItted hereby Applicant's obligation to mdemmfy, defend and save harmless the City as stated heremabove ~hdll mclude, but not be lImIted to, paymg all legal fees and co~t~ Incurred by legal coun~el of the CIty's chOIce m representmg the CIty m connectIOn WIth any such c1atm~, losses, lawslllts or actions, and any award of damage~ or attorncys fees m any such law~UIt or ac.tlOn ~ ~ 'i< ~ C \WP'il\CIJP\t.UP92-21 A(.2\1 W\U7-16-91 24 B/I<l1ell 209 Main Srreer L P Dt'vt'lopment Agreement July, 1993 ATTACHMENT B, RESOLUTION NO. 4239 MITIGATION MONITORING and REPORTING PROGRAM NEGATIVE DECLARATION 93-3 CONDITIONAL USE PERMIT 92-23 (B J's CHICAGO PIZZERIA 209 MAIN STREET) I Mitilmtion Measm"e: The Imtlal Study has Identified that the project, WIthout condltlon~, would lmpact~ on tlaffic and palkmg The project has been condItioned upon the applicant agreemg to contnbute an amount ~peclfled m the Development Agreemcnt to mItigate traffic and park1l1g Impact~ from the project The property owner shall agree to partiCipate m such m-IIeu parkmg program as has been or shall be establl~hed by the CIty Council for the amount equal to twenty-three (23) spaces Any changes to the total parkmg reqUIrement for the sIte shall cau~e the modIfication of the rate of particIpation m the m-lIeu program, subject to Plannmg COnl1TI1SSlOn approval The applIcant and/or property owner ~hall sIgn and record the m-IIeu parkmg agreement or an alternative document acceptable to the CIty pnor to the Is\uance of any bUlldmg permIts and/or busmess lIcense The applicant realizes that thl\ IS an mtenm agreement, and a permanent agreement may re~ult In further co~t~ per space A covenant shall be recorded on the title of the property whIch sl1pulate~ that twenty-one (21) addItIOnal parkIng ~pace~ are reqUIred for the re~taurant u~e of the property, pur~uant to the Code of the CIty of Seal Beach !l 28-1304(4), and two (2) additIOnal are requIred for the second story office use of the property, pur~uant to the Code of the CIty of Seal Beach ~ 28-1203, for a total of twenty-three (23) parkmg ~pace~ (City CouncIl CondItIOn of Approval #5, Re~olutlOn No 4239) Method of Verilication: Return of properly executed and lewrded m-lIeu parkmg partICIpatIOn agreement and covenant Tim;"!! of Verification: Upon return of properly executed and rccorded in-lIeu parkmg partiCipatIOn agreement and covenant Resoon\ible Per~o"/ A!!l'ncv: City Attorney - Approval a~ to form of m-heu parkmg partICIpatIOn agreement fOlI11 and covenant, Department of Development ServIces _ DIrector and/or AS~I~tant Planner - venflcatlon of receIpt of recorded m-lIeu parkmg partICIpatIOn agreement and covenant pnor to IS\UanCe of any bUlldmg permIts and/or busmess IIcen~e 2 Miti!!atio" Mca~m"e: All reqUlrcl11ent\ of the Orange County Health Department and the Uniform Blllldmg Code ~hall be met pnor to occupancy (CIty CouncIl Condition of Approval #6, ResolutIOn No 4239) Method of Vel"ifiration: ReceIpt of approved plans by Orange County Health Department and from CIty contract plan chec.k engmcenng flrl11 l. \WI)'il\t.1JP\l.lJP92.21 A02\LW\1I7-16-Q1 25 B,.,hel/ 209 Main Street L P Development Agreement July, 1993 Timinl! of Verification: Upon return of properly approved plans by Orange County Health Department and from CIty contract plan check engmeenng firm Resnonsible Personl Al!encv: Department of Development ServIces - BUlldmg Inspector - venficatIOn of approved plans pnor to Issuance of bUlldmg permIts 3 Mitil!ation Ml'asllre: All construction shall be m substantial complIance With the plans approved through Vanance 92-3 and CUP 92-23, Identlfied as "Attachment C, Conditional Use PermIt 92-23 and Vanance 92-3, Floor, Plot and ElevatIon Plan (CIty CouncIl Condition of Approval #8, Re~olutIon No 4239) Method of Verification: RevIew of approved plans by Department of Development Services pnor to acceptance for Plan Check revIew by CIty contract plan check engmeenng firm Timinl! of Verification: Upon receIpt of reqUIred plans from applIcant ResDon~iblc Perloon/ Al!encv: Department of Development ServIces - DIrector and/or AssIstant Planner - venflcatlon of approved restaurant area pnor to ac.ceptance for Plan Check revIew by CIty contract plan check engmeermg finn 4 Mitil!ation Ml'a~lIre: The rear of the bUlldmg ~hall be posted as a no parkmg/loadmg zone between the hours of 8 00 a m and 10 00 a m and shall be avaIlable for parkmg or loadmg at all other hours The execution of thIS condItion IS subject to the revIew and approval of the DIrector of Development Services (City CouncIl CondItIOn of Approval #9, Resolution No 4239) Method of Verification: VI~ual mspectlOn to venfy proVISIOn of reqlllred ~Igns pnor to final mspec.tIOn and Issuance of certlticate of occupancy Timin2 of Verification: occupancy Pnor to final m~pectlOn and I~~uance of certificate of Resnon~ible Per~on/ Al!encv: Department of Development ServIces - DIrector and/or AS~I~tant Planner - venficatIOn of reqUIred sIgns pnor to final mspectlon and Issuance of certificate of occupancy 5 Mitil!ation Mca~\II'e: In order to off~et the lack of on-site land~capmg, a fee shall be paId to the CIty to purchase a maxImum of SIX (6) street trees for the Mam Street area Additionally, If deemed feaSIble by the CIty's Engmeermg Department, a fee shall be paId to the CIty to cover the cost of purcha~mg and mstallIng an additional pedestnan bench on Mam Street or other hardscape treatments to the SIdewalk area adjacent to the subJect property SaId fee shall not exceed $5,000 and shall be paId as a $5,000 depOSit pnor to Issuance of a certIficate of occupancy (CIty CounCIl ConditIOn of Approval #10, Resolution No 4239) ReceIpt of $5,00000 depOSIt from applicant Method of Verification: Timing of Verification: occupancy Pnor to final mspectIon and Issuanc.e ot certificate of Resnonsible Pcr~onl Al!encv: and/or ASSIstant Planner Department of Development ServIces - DIrector (, \WPlil\CUP\( 1IP92-2J A02\L\H07-16-91 26 Bllcl1ell 209 MtIln Street L P DE"\.It'/opmenl AgreE"~nJ July, 1993 6 Mitie:ation Measure: The applIcant shall furnIsh the CIty a copy of hIS ABC lIcense and a copy of any conditions placed on the lIcense by the Department of AlcoholIc Beverage Control ThIs shall be done as soon as the lIcense IS received by the apphcant from the State of Callforma Department of Alcohohc Beverage Control ApplIcant shall comply WIth all restnctlOns placed on ItS lIcense from the Department of AlcoholIc Beverage Control (CIty CounCIl CondItion of Approval #12, Resolution No. 4239) Method of Verincation: ReceIpt of approved ABC lIcense, WIth a copy of all condItIOns placed on the lIcense Memo to CUP 92-23 file mdlcatmg date of receIpt of ABC lIcense and conditIOns, WIth copy of lIcense and con<.lIt1ons attached Timing of Vel"ification: Upon receIpt of approved ABC hcen~e, With a copy of all condItIOns placed on the hcense ResDonsible PeJ"Sonl Ae:encv: and/or A sSlStan t Planner Department of Development Services - DIrector 7. Mitie:ation Measure: The hours of operatIOn shall be (a) 11 00 A M to 10 00 PM, Sunday through Thur~day, and (b) II 00 A M to II 00 PM, Fnday, Saturday, and holIday~ (CIty CounCIl CondItion of Approval #13, Resolution No 4239) Method of VeJ'ification: FIeld m~pcctlOn Timine: of Verification: Irregular baSIS, as determmed by PolIce Department, Department of Development Servl"c~, and Department of Alcoholic Beverage Control Re~Don~ible Personl Ae:encv: PolI"e Department- Watch Commander, Department of Development ServIces - DIrector and/or ASSIstant Planner, Department of AlcoholIc Beverage Control - FIeld Inve~tlgator 8 Mitie:ation Measure: permitted on the premIses 4239) No VIdeo games or ~Ilmlar amusements ~hall be (CIty CounCIl CondItion of Approval #14, Resolution No Method of Verification: FIeld mspectlOn Timine: of Verincation: Irregular baSIS, as determmed by Police Department and the Department of Development Servlce~ ResDon~ible Person/ Ae:encv: PolIce Department - Watch Commander, Department of Development ServIces - Director and/or A~~lstant Planner 9 Mitie:ation Mea~ure: There shall be no extenor advertISIng of any kmd or type, mcludmg advertlsmg dIrected to the extenor from wlthm, promotmg or mdlcatlng the avaIlabIlity of alcoholIc beverage~ (CIty CounCIl ConditIOn of Approval #15, ResolutIon No 4239) Method 01 Verincation: FIeld mspectlon 27 BI\<I"II 209 Mmn Street L P DevelopnlRnt Agreement July, 1993 Timine: of Verification: Development ServIces Irregular basIs, as determmed by the Department of Resoonsible Person/ Ae:encv: and/or AssIstant Planner Department of Development ServIces - DIrector 10 Mitie:ation Mellsure: Exterior IIghtmg m the parkIng area shall be kept at a level so as to provIde adequate IIghtmg for patrons whIle not unrea~onably dlsturbmg surroundmg resIdentIal or commercIal areas A IIghtmg plan shall be provIded, subject to revIew and approval by the DIrector of Development Servlc.es, whIch promotes mInimal disturbance to nearby reSIdences (CIty CouncIl CondItion of Approval #18, ResolutIOn No 4239) Method of VerificlItion: Planning Department revIew of reqUIred plans and field mspectlOn, pnor to project completion Timine: of VerificlItion: proJect completIOn Upon completIOn of reqUIred IIghtmg mstallatlOn, pnor to ResoonsibJe Per~on/ Ae:encv: Inspector Department of Development ServIces - BUlldmg II Mitie:lItion Mell~nre: LItter and trash receptacles shall be located at convenient locatIOns mSlde and outSIde the establIshment, and opcrators of such estabhshments ~hall remove trash and debns on an appropnate basIs so as not to cause a health problem There shall be no dumpmg of trash and/or gla~\ bottle~ outSide the estabhshment between the hours of 10 00 P M and 7 00 A M and the rear trash enclosure shall remamed closed and locked at all tunes when not speCIfically In use and between the hours of 10 00 P M and 7 00 A M (CIty CouncIl CondItion of Approval #23, ResolutIOn No 4239) Method of VerificlItion: Field mspectlOn TimiDe: of Vel'ificlItion: Development ServIces Irregular basl~, as detel mmed by the Department of Resoonsible Personl Ae:encv: and/or ASSIstant Planner Department of Developmcnt ServIces - Director 12 Mitie:lItion Measure: All alcoholIc beverage~ sold m conjunction WIth the on-premIse IIcen~ed establIshment must be consumed entirely on the preml~s pnor to clOSIng tune The sale of a1cohohc beverages for consumptIOn off the premIses shall be prohIbIted Consumption of alcoholic beverages shall be prohIbited m the establIshment's parkIng area There ~hall be appropnate postmg of ~Ign~ both mSlde and outSIde the lIcensed preml~e~ mdlcatmg that drmkmg out~lde the licensed prenme~ 1~ prohIbIted by law (CIty CouncIl CondItion of Approval #25, Re~olutlOn No 4239) Method of VerificlItion: FIeld m~pectlOn Timine: of VerificlItion: Irregular baSIS, a~ determllled by the Department of Alcohohc Beverage Control and the Department of Developmcnt ServIces 28 Bllchell 209 Main Sf/eel L P Deve!opII'lRnt Agleement Joly, 1993 ResDonsible Person! Al!cncv: Department of AlcoholIc Beverage Control - Field Investigator, Department of Development ServIces - DIrector and/or AssIstant Planner 13 Mitil!ation Measure: The proposed faCIlIty shall comply with Chapter 13D, "NOIse Control", of the Code of the CIty of Seal Beach as the regulations of that Chapter now eXI~t or may hereafter be amended Should complamt~ be received regardmg nOIses generated by the faCIlity, the Planning CommlS~lOn re~erves the TIght to schedule the subject permIt for reconsideratIOn and may reqUIre the applicant/operator to mItigate the nOl~e level to comply WIth the proVIsIons of Chapter 13D (CIty CounCIl CondItIon of Approval #27, ResolutIOn No 4239) Method of Verification: FIeld m~pec.tlOn Timinl! of Verification: Irregular baSIS, as determmed by Police Department and the Department of Development Servlce~ Re~Donsible Per~ou/ Al!enev: PolIce Department - Watch Commander, Department of Development ServIces - DIrector and/or AS~l~tant Planner 14. Mitil!ation Measure: Whenever the outdoor dmmg area IS bemg utilIzed for the sale, servIce or consumptIOn of alcoholIc beverages, a prenme employee shall be m attendance and mamtam contmuous supervIsIon at all tunes to ensure the outdoor dmmg area does not create a public nUisance contrary to publIc welfare and morals (City CounCIl CondItion of Approval #28, ResolutIOn No 4219) Method of Vel'ifieation: FIeld Inspection Timinl! of Verification: Irregular ba~ls, as determmed by PolIce Department and the Department of Development ServIces ResDonsible PeI"son! Al!encv: PolIce Department - Watch Commander, Department of Development Servlce~ - Director and/or AsslMant Planner 15 Mitil!ation Mea~lIl"e: All alcoholic beverage~ ~erved m the outdoor dmmg area mu~t be ~erved m glass contamers (City CounCIl CondItIOn of Approval #29, ResolutIon No 4239) Method of Verification: FIeld In~pectlOn Timinl! of Verification: Irregular ba~I~, a\ determmed by Police Department and the Department of Development Servl(.e~ Re~Donslble PeI...on! Al!cncv: PolIce Depalt1nent - Watch Commander, Department of Development ServIces - DIrector and/or AS~I~tant Planner 16 Mitil!ation Mea~Ill-e: Intenor remodeling and structural alteration shall be m substantial compliance WIth the approved plans, and con~tructlon activity shall not commence until fmal bUlldmg permits have been obtamed (CIty CounCIl CondItIon of Approval #30, ResolutIon No 4239) 29 811cl1_11 209 Main Street L P Dt'velopment Agrt'ement July, 1993 Method of Vprifiration: Venficatlon of substantial compliance of construction plans to approved plans by Department of Development ServIces pnor to submIssIon by City for Plan Check revIew by City contract plan check engmeenng firm Timin!!: of Verifiration: Upon receIpt of reqll1red plans from applIcant ResDon~ible Pen.on/ A!!:pnrv: Department of Development ServIces - DIrector and/or AssIstant Planner - venficatlon of substantIal complIance of con~tructlOn plans to approved plans pnor to subnllSSlOn by City for Plan Check review by CIty contract plan check engmeermg firm ~ 1< 1< t 30 Bllchell 2IJ9 Mwn Sneer L P Del'i!/opment Agreement July, 1993 EXHIBIT "D" CONDITIONAL USE PERMIT 92-23 VARIANCE 92-3 APPROVED "FLOOR. PLOT AND ELEV A nON PLAN" ATTACHED t '10 '10 ~ 31 . -~I~..........~ .......-..- "'- ~.-.. ~~ ,. ~I w ...... JIl""...._..r-~1 ow.a, '''"':''.:11'';;'' w .. -. DOlin.. -.'" 'I'J;f S31tlYH:l 'S31't'l'JOSS'I 1l',I.... ; I lJ ~ Ijt f:b t~ f~: If ~ ~ thi~ ~ ~~ it ~?.11 ,t;y~ ,\: .: ~ -;~ - " , .Ii ---~i -I" r a .J.~o;;.t'h:iW " , ",,- , ttH; ~ -l~ ~ I 'N1r" if }~ J ~; ai ~ ~ j @1 ~ -, ;. r w 1 a: ::) '- UJ I- 0 j ....I 0 Q.L Z I W w I UJ '. 0 ~ j. D. UJ r ..L'!r''''V ...,..~~ 0 < a: a: D. ... 1 ~ ',! . I r ' ~ t;:I I!:. J . ,! -'lor- fit I ~ . t ~;1 fl' Is! r. ~.I!ldl ! l!'l r/ f ~i~:.~r 1 d ~ ~ lIt t" i ~l , , !~ . /' ; ,j · i .1 .; i ~ ~ 1 . . I JqqL i j !, II' ~ "!, " '- i] t ~: ] " f ! iJ ~ t: .:' ~ ~ , I :l- l , . , Ii 't ~ ! ~ tlllr Bmh~1I 209 Mam Sf/eel L P Dt'vt'lopment Agreement July. 1993 EXHIBIT "E" CONDITIONAL USE ffiRMIT 92-23 VARIANCE 92-3 "NEGATIVE DECLARATION" ATTACHED ~ ~ t ... 32 APPENDIX H NEGATIVE DECLARATION FOR CondItional Use Permit 92-23 and Vanance 92-3 (Projecl) Application has been filed with the City of Seal Beach for approval of the proJect known as be CondItional Use Permit 92-23 and Vanance 92-3 located at 209 Main Street. Seal Beach. CA 90740 and to be Implemented by CIty of Seal Beach The proJect IS bnefly descnbed as A reauest to reopen a restaurant In a locallv recognized hlstonc structure The prooosed restaurant. as was the case wIth the prevIous restaurant which closed m Julv 1991. WIll have a parking deficlencv of 21 on-site parking soaces Pursuant to the authonty and critena contained m the California Envlronmental Quality Act (CEQA) anu the CEQA GUidelines of the City of Seal Beach, the Lead Agency has analyzed the project and determined that the proJect WIll not have a SIgnificant Impact on the environment Based on tlus finding, the Lead Agency prepared thiS NEGATIVE DECLARATION A copy ofth~ Irutlal Study, documenting reasons to support the finding, IS attached MItIgation measures, If any, mcluded In the proJect to aVOId potentially SIgnificant effects are Attached as "ExhibIt A" (Page 37 oflnltlal Study) A penod of at least 21 days from the date of publlcatton of the notice of tlus NEGATIVE DECLARATION wdl be proVIded to enable public reVIew of the project speCificatIOns, the Imtlal Study aIld tlus document prior to the final adoption of the NEGATIVE DECLARATION by the Lead Agency A copy of the proJect specIfications IS on file In the offices of the Department of Development SeTVIces, 211 Eighth Street, Seal Beach, CA, 90740 Date February 17. 1993 e Whittenberg Irector of Development Se Attachment A Proposed Mitigation Measures I In order for a restaurant to be reestablished on the property which has histoncally housed a restaurant, the property owner must record a covenant on the title of the property mdlcatlng the followmg A The property shall participate m the City's interim parkIng mitigation program until such time as a permanent parkIng program IS established Upon the establishment of a permanent parkIng program the property shall particIpate m such program for the 21 defiCient parkIng spaces B The hours of operation shall be 11 00 a m to 10 00 P m Sunday through Thursday 11 00 a m to 11 00 P m Fnday and Saturday C The last call for ordenng alcoholic beverages shall be no later than ten (10) rmnutes pnor to closing (9 50 P m (10 50 P m on Fnday and Saturday)), a complete menu offood shall be available for purchase up to at least one-half hour pnor to c10smg (930 P m (I0 30 pm)) and all patrons shall be out of the restaurant Within one-half hour ofclosmg (10 30 P m (II 30 pm)) 2 Applicants shall mdemnlfY, defend and save harmless the City of Seal Beach, Its officers, agents and employees (collectIvely, "the CIty") from and agamst any and all liabIlity or expense, whatsoever occumng or resultmg to persons or property for damage, bodily inJury or death ansmg out of or m connection With the issuance oftlus approval or the exercise of the nghts accruing from thiS approval, and shall speCifically mclude, without limitatIOn, all challenges to, or claims, laWSUIts or actions ansmg from, the Issuance of thIS approval Applicants' obligation to mdemnlfY, defend and save harmless the CIty shall mclude, but not be limited to, defense costs and fees mcurred by legal counsel of the City's chOice * * *