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HomeMy WebLinkAboutPC Res 95-03 - 1995-02-22 , ' { 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) THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH DOES HEREBY RESOLVE' SectIOn 1 Ron Bennett ("Bennett"), an IndIVidual, has apphed for and been granted Vanance 94-7 by the City of Seal Beach The City and Bennett deSlfe to enter Into a development agreement pursuant to Government Code Secbons 65864 through 65869.5, and Article 27.5 of Chapter 28 of the Code of the CIty of Seal Beach, CalifornIa to Implement the terms and condlllons of VarIance 94-7 with respect to that certain real property commonly known as 322 MaIn Street, and more parbcularly descnbed In the proposed development agreement, attached hereto as ExhIbit A. Secllon 2 Pursuant to 14 Callforma Code of Regs ~ 15025(a) and ~~ II B of the CIty'S Local CEQA GUldehnes, the Planmng Commission has prevIOusly determIned that the proJect, which IS the subJect of Vanance 94-7 and the development agreement under conslderabon herem, IS categoncally exempt from review under the Callforma EnVironmental QualIty Act ("CEQA") pursuant to 14 Cahf. Code of Regs. ~ 15303 (New ConversIOn of Small Structures), because the project Involves the convefSlon of an eXlsbng small structure from one use to another and only mInor modlficabons will be made to the ex tenor of the structure; and pursuant to 14 CalIf Code of Regs ~ 15061(b)(3), because It can be seen With certaInty that there IS no possibility that approval of eIther Vanance 94-7 or the development agreement may have a SIgnificant effect on the envIronment Secllon 3 Pursuant to Secllon 28-2759 of the Code of the City of Seal Beach, the Planning Commission held a properly nobced pubhc hearIng regardIng the proposed development agreement on February 22, 1995. Section 4. Based upon the eVidence presented, and on the environmental conslderabons referenced above, pursuant to Government Code SectIOn 658675, Secbon 28- 2759 of the City'S Code, and Secbons 15303 and 15061 of the CEQA GUldehnes, the Planning Commission hereby finds and declares as follows A. The proposed development agreement IS consistent WIth the current General Plan for the CIty of Seal Beach, the obJectives, pohcles, general land uses, and programs specified thereIn, and WIth the Zoning Map for the City of Seal Beach, as each has been amended to date, In that the General Plan and ZOning Map proVide for Service Commercial (C-!) uses of the subJect property, which Include the restaurant use contemplated by the proposed development agreement. There IS no specIfic plan apphcable to the proposed development agreement B The restaurant use contemplated by the proposed development agreement IS compallble WIth the Service Commercial uses D IWPSIIRE&OIBENNCIT DAO\LW\O~-ll2-9S . . Pla"",ng CommlSlOll ResolutlOn 95-3 February 22, 1995 authonzed In the C-l Dlstnct In whIch the subJect property IS located C. The proposed development agreement IS In conformIty WIth, and wIll not be detnmental to, the publIc necessIty, publIc convemence, general welfare, and good land use practIces In that the restaurant use proposed IS appropnate for a commercIally zoned property, and the proposed development agreement proVIdes for balanced and dIVersified land uses In a manner that wIll protect the overall qualIty of lIfe and envIronment In the CIty. D. The proposed development agreement wIll not adversely affect the orderly development of property, but will Instead further the orderly development process by impOSing appropnate standards and requIrements WIth regard to land development on thIS property. E. The proposed development agreement wIll have a pOSItIve fiscal Impact on the CIty of Seal Beach In that the agreement encourages economIcally productIve use of the property and reqUIres the Developer to pay certain fees to the CIty SectIOn 5 Based upon the foregOing, the Planmng CommIssIon 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 CIty and Bennett, attached hereto as ExhIbIt" A" , be approved. PASSED, APPROVED AND ADOPTED by the Planmng CommISSIon of the CIty of Seal Beach at a meetIng held on the 22nd day of February, 1995, by the following vote: AYES' CommIssIonerS Brown. Campbell. Law. ShaI:P. and Chatrman Dahlman NOES CommIssIoners None ABSENT: CommIssIoners None ~dd Anton Dahlman, ChaIrman ATIEST t4~~~~ WhIttenberg Secretary to Planmng CommlSSI n D IWPSllRESOlBBNNI!'IT DAOILWI05-02-9S 2 " Planmng ComnuSlon ResolutIOn 95-3 February 22, 1995 EXIllBIT A, TO RESOLUTION NO. 95-3 RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO. CITY OF SEAL BEACH DEVELOPMENT SERVICES DEPARTMENT 211 EIGHTH STREET SEAL BEACH, CA 90740 1be uadcrslaned dedare that thlllDStrumLDt II reeord..'CI at the request.od for the beoerlt oftbe CITY OF SEAL BEACII, aod IS therefore exempt from ~ment at recorchng rea pIInuanllD GovernmlDt CodL '6103 and the paymeat of doeume.lltary transfer lax punuanl to Revenue & Ta:ubon Cod. tl!lZn (Space Above for Recorder's Use) DEVELOPMENT AGREEMENT (Pursuant to Government Code Sections 65864 - 65869.5) This DEVELOPMENT AGREEMENT ("Agreement") IS entered Into between Ron Bennett, Developer and Property Owner, (herem after "Developer") and the CITY OF SEAL BEACH, a mUnicipal corporal1on organized and eXlsl1ng under the laws of the State of Callfomta (hereInafter "City") Developer and CIty are sometimes collecl1vely referred to herem as the "partIes " R Eel TAL S: ThiS Agreement IS predicated upon the follOWIng facts: A. These RecItals refer to and Ul1hze certatn capitalized terms whIch are defined m thiS Agreement. The partIes Intend to refer to those definitions In conJunction With the use thereof In these Recitals B. Government Code Secl10ns 65864 - 65869 5, ("Development Agreement Law") authonze the City to enter mto bmdIng development agreements With persons havmg a legal or eqUItable interest In real property for the development of such property, all for the purpose of strengthening the pubhc planning process, encouragmg pnvate partIClpal:1on m comprehenSIve planning and reducmg the economIc costs of such development. C. Pursuant to Government Code Secl10n 65865, CIty has adopted rules and regulations as Article 27.5, commencIng WIth Secl10n 28-2751 of the Code of the City of Seal Beach, CalIfornia, establIshmg procedures and reqUirements for conSIderation of development agreements. D. Developer IS the proposed developer of the Property as deSCrIbed on ExhIbit" A " E. Developer has apphed for, and CIty has approved WIth condll1ons Variance 94-7, In order to protect the mterests of Its CItIzens and the quality of the community and enVironment D IWPSI\RESOIBl!NNl!TI DAG\LW\O~9S 3 PlannIng CommlSlon ResolUllon 95-3 Ftbruary 22, 1995 As part of that process of approvmg the Development Plan, CIty has determmed that the proJect IS exempt from revIew under the CalifornIa EnVironmental QualIty Act ("CEQA"). CIty has Imposed a senes 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 surroundmg uses and the community In general and w1l1 not be detnmental to the neIghborhood F. CIty is In the process of developmg a Mwn 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 personal economic conSIderations and an uncertam completIOn date for the SpecIfic Plan, Developer elected to proceed WIth hIS applIcatIOn ConsIstent WIth other recent Vanance approvals In the Mwn Street area, the City's approval of Vanance 94-7 was made contingent upon the execution of thIS development agreement. Developer and CIty desIre to enter Into thIS development agreement to gIVe effect to the CIty's approval of Vanance 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 contnbutes to the balanced and dIversIfied land uses of the CIty In order to mwntaIn 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. I. CIty has found and determIned that the execution of thIS Agreement IS In the best interest of the pubhc health, safety and general welfare of CIty and Its reSIdents and that adopting thIS Agreement constItutes a proper exercIse of ItS polIce power. THE PARTIES AGREE AS FOLLOWS: 1. DefinitIOns 1. I "Agreement" IS thIS Development Agreement. 1.2 "CIty" IS the CIty of Seal Beach, CalIfornIa. 1 3 "Developer" is Ron Bennett, an IndIVIdual, and hIS assIgnees or successors In Interest to all or any part of Developer's mterest 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, Includmg, WIthout lImItatIOn, regulations regardmg the permItted uses of the Property, 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 Property, and all of those permIts and approvals whIch are referenced on ExhIbIt "B," whIch have been ISSUed or granted by CIty In connection WIth any of the foregomg. SpecIfically, but WIthout lImItation, such Development Plan Includes Vanance 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 eXlstmg 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 mclude such matters as so amended. NotWIthstandIng the ImmedIately precedmg sentence, If thIS Agreement IS reqUIred by law to be amended In order for the "Development Plan" to Include such amendments, "Development Plan" shall not Include such amendments unless and until thIS Agreement is so amended. A copy of Resolution No. 95-2, whIch Includes the CondItions of D IWPSI\REMlIDENNJ!IT DAOILWlOS-02-9S 4 Planmng Commlllon R~solullOn 95-3 F~bruary 22, 1995 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 Vanance 94-7 IS attached hereto as Exhibit "D " 1.5 "EffectIve Date" IS that date upon which this Agreement IS executed by properly authonzed officers of the City. 1.6 "ProJect" IS the conversIOn ofa portIOn of an eXiStIng structure from retaIl sales (off-premIse lIquor) to a restaurant use on a commercially zoned lot subJect to thIS Agreement, Includmg, 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 "Property" IS the real property on which the PrOject Will be located as descnbed on Exhibit "A". 1 8 "Property Owner" IS Ron Bennett. 2 Exhibits The followmg documents are referred to In thIS Agreement, attached hereto and Incorporated hereIn by thIS reference Exhibit DeSignation DescnptlOn A Legal Descnptlon of the Property B Development Plan Permits and Approvals C PlannIng COmmiSSIon ResolutIon No. 95-2 D Vanance 94-7, "Floor Plan" 3. Mutual Benefits. This Agreement IS entered Into for the purpose of carryIng out the Development Plan for the ProJect In a manner that Will msure certatn 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 nghts of each party, certatn assurances on the part of each party as to the Project Will be necessary to achIeve those deSIred benefits 3 1 Benefits to CIty The benefits to City (mcludIng, WIthout lImitation, the reSidents of City) under thIS Agreement Include, but are not lImIted to (a) the proVISIon of additIonal restaurant uses on Mwn Street; (b) the payment of In lIeu fees for the constructIon of publIc faCIlItIes and services; (c) an mcrease m property tax revenues, sales tax revenues, and other revenues to be denved by City, and (d) certaInty and consistency In the development process on Mwn Street dunng the conSIderation of the MaIn Street Specific Plan. 3.2 Benefits to Developer. 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 contnbutIng to the provlSlOn of publIc services In connection With the ProJect Developer would not make such additIonal expenditures Without the nghts 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 nght to the Developer to Implement the proJect pursuant to Vanance 94-7 and the assurance that Developer will preserve for a specIfied term the nght to develop the Property as planned and as set forth In the Development Plan D IWP51IRESOIBENNB'IT DAffiLWlOS-02-9S 5 Planmng ConumslOn Resolullon 95-3 February 22, 1995 4 Interest of Developer mterest In the Property Developer represents that Developer has a legal 5. Bmdmg Effect of Agreement. The burdens of thiS Agreement bInd, and the benefits of thiS Agreement Inure to, the successors In mterest to the partIes hereto. 6 Term The term of thiS Agreement shall be twenty years, subJect to the times for performance specified In Paragraph 7, below 7. TIme of Performance. The terms and provlSlons of thiS Agreement shall expIre two (2) years from the Effective Date unless all bUlldmg 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. Changes In Project Developer shall not be entitled to any change, mochficatIon, reVlSlOn or alteration In the Development Plan relatmg to the permitted uses of the Property, the denSity or Intensity of use, the maximum heIght and sIze of bUildings or the provlSlOn of land 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 foregomg provlSlonS of thiS Section 8, CIty acknowledges that Developer may seek amendments to entitlement to use and new entitlement to use In connection With the development of the Project The approval of any such amendments or new entitlement to use shall be In the sole discretion of the City. 9. IndemnIficatIOn and Le!!al Challene:e 9.1. 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 clwms for damage for personal mJury mcludmg death and claims for property 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 representatives 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 Lee:al Challenge. In the event of any legal action challengmg the valid- Ity, applicability, or mterpretatlon of any prOVision of this Agreement, any of the entitlement documents pertaImng to the ProJect includmg, 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 and hold harmless the CIty, Its officers, agents, employees and representalives from and agamst all liability, costs and expenses, IncludIng attorneys' fees, Incurred by City or awarded agwnst 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 In defendmg such aclion In the event of any litigatIOn challengmg the effectiveness of thIS Agreement, or any portion hereof, tins Agreement shall remltln 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 contmue development under thIS Agreement pendmg completJon of the D IWPSIIRESOIBENNB'IT DAOILWlO'i-02-9S 6 Planmng Commlllon Resolution 95-3 February 22, 1995 litigation but It shall do so at Its sole nsk, and City shall not be liable for any loss suffered as a result thereof. 10. Vested RIght. By enterIng mto this Agreement and relymg thereon, Developer IS obtammg a vested nght to proceed With the ProJect in accordance WIth the Development Plan and City IS secunng certam pubhc 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 Confhctmi! Enactments Except as otherwise proVided herem, neIther the City Council of City nor any other agency of City shall enact an ordmance, policy, rule, regulation or other measure apphcable to the ProJect which relates to the rate, timIng or sequenCIng of the development or constructIOn of all or any part of the ProJect or whIch IS othefWIse in conflict With thIS Agreement. This Section shall not restnct the City's ability In 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 necessary to deal WIth such emergency even If such measures are mcompallble With other terms of thiS Development Agreement. 10 2 Intent of Parnes No moratonum or other hmltallon (whether relatmg to the rate, tlmmg or sequencIng of the development or constructIOn of all or any part of the ProJect and whether or not enacted by ImllatIve or otherwise) affecting subdIVISion maps, buildmg permits, occupancy cernficates or other enlltlement to use approved, issued or granted WithIn City, or pornons of City, shall apply to the ProJect to the extent such moratonum or other limitation IS In conflict With thiS Agreement NotwIthstandIng the foregOIng, should an ordinance, general plan or zOning amendment, measure, moratonum, policy, rule, regulation or other limitation enacted by citizens of CIty through the Initiative process be determIned by a court of competent JunsdlctIon to mvahdate or prevail over all or any part of thiS Agreement, Developer shall have no recourse agwnst City pursuant to thIS Agreement, but shall relatn all other nghts, clwms and causes of actIOn at law or In equIty which Developer may have Independent of thiS Agreement The foregomg shall not be deemed to hmlt the Developer's nght to appeal any such determmallon of such ordmance, general plan or zoning amendment, measure, policy, rule, regulation, moratonum or other limitation which purports to mvalldate or prevail over all or any part of thiS Agreement CIty agrees to make all reasonable efforts to cooperate With Developer to maInlatn thiS Agreement m full force and effect 11. General Development of the Pro1ect. 11 1 Pro1ect. Whlle 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 In accordance With the terms and condlllons of thiS Agreement Except as otherwise specIfied In thiS Agreement, the Development Plan shall control the overall design, development and construction reqUlfed m connection With the Project and all on-sIte and off-SIte Improvements and appurtenances m connection thereWith, Includmg, Without limItation, all mltlgallon measures requtred In order to mInImIze or elimmate any potentially slgmficant enVlfonmental effects The permitted uses of the Property, the denSity and mtenslty 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 condlllons of development applicable to the Property shall be those set forth In the Development Plan. 11 2 Effect of Agreement on Land U se Re~ulatlOns. The rules, regulatIOns and offiCial poliCIes governIng permitted uses of the Property, 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, regulallons and offiCial pohcles In force as of the Effective Date In connectIOn With any D IWPSl\llESO\8J:NNETI DAG\LW\O~-02-9S 7 Planrung ComnuslOn Resolutlon 95-3 F~bruary 22, 1995 approval which CIty is permItted or has the nght to make under thIS Agreement relating to the Project, or otherwIse under Its rules, regulations and officIal pOlICIes, CIty shall 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 mtensIty specIfied In thIS Agreement or WIth the rate of development selected by Developer City shall accept for procesSIng 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 shall be processed In the normal manner for processmg such matters. 11.3 Traffic and ParkIn!! MItigation ContributIon. Developer shall contnbute to CIty the sum of $ 6,362 40 to mItIgate traffic and parlang Impacts ansmg from the ProJect. This atnount IS $ 17,500 00, based on an Intenm In-lIeu fee of $ 3,500 00 per parlang space (5 spaces), mInUS CredItS based upon the benefits to the CIty and reSIdents of the CIty ansmg from the proJect. Developer shall pay to the CIty the amount of $ 6,362 40 as follows $ 1,272 50 shall be pwd to the CIty prior to the Issuance of a certificate of occupancy for the proJect; the balance shall be paId m four equal installments of $ 1,272 50 on each successIve anmversary date from the date of the Issuance of the certificate of occupancy In addItion to these amounts, Developer may be reqUIred to pay addlltonal In-lIeu parlang fees pursuant to SectIon 12 2 of thIS Agreement. 11.4 Development Fees Except as prOVIded in Section 13 of thIS Agreement, CIty shall not, WIthout the pnor wntten consent of Developer, Impose or Increase any fees applIcable to the development of the property or any portIon thereof, or Impose any such fees as a condItIon to the Implementation of the ProJect or any portion thereof, except those fees In effect on the Effective Date of thiS Agreement 11.5 Subsequent ActIOns CIty shall ltmely 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. Regulaltons and OffiCIal PolICIes. 12 1 New Rules. ThIs Agreement shall not prevent CIty from applymg the follOWIng new rules, regulaltons and polICIes (a) Processmg fees and charges Imposed by CIty to cover the estImated actual costs to CIty of processIng applIcatIOns for development approvals, for momtonng complIance WIth any development approvals, or for momtonng complIance WIth envIronmental Impact mltIgalton measures (b) Procedural regulations relatIng to heanng bodIes, petIltons, applIcatIons, nOtIceS, findmgs, records, heanngs, reports, recommendaltons, appeals and any other matter of procedure (c) Regulaltons governmg construction standards and specIficatIons IncludIng, WIthout IImltalton, the CIty's BuIldmg Code, PlumbIng Code, MechanIcal Code, Electncal 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. D IWPSllRESOlBl!NN1!TI DAClILWlO'i-ll2-9S 8 Planmng Comnu lIOn Resolution 95-3 F,bruary 22, 1995 (e) RegulatIons whIch are m conflict wIth the Development Plan or thIS Agreement to whIch Developer has consented In wntmg. 12.2 CIty Parkme: Program Developer hereby agrees to partICIpate In any such tn-lieu parlong progrwn as has been or shall be established by the CIty Council applicable to bustness tenants and/or property owners m the Old Town-Mwn Street area for an amount equal to five (5) spaces Any changes to the total parkIng reqUIrement for the SIte shall cause the modIficatIon of the rate of partiCIpation In the In-lIeu progrwn, subJect to Planmng CommIssIon approval The Developer shall execute and cause a covenant to be recorded on the title of the property whIch snpulates that five (5) parlong spaces are reqUIred for the restaurant of the property, pursuant to the Code of the CIty of Seal Beach, ~ 28-1203 and ~ 28-1304. In the event that future actIOn by the CIty CouncIl results m further costs per space, Developer shall be entItled to a CredIt of $17,500 00, or that portion pwd thereof, paId under thIS Agreement pursuant to SectIon 11 3 12 3 Subsequent ActIons and Ap'provals. In accordance WIth Government Code Section 65866, thIS Agreement shall not prevent CIty In subsequent actIOns applIcable to the Property from applYIng new rules, regulations and polICIes whIch do not conflIct WIth those eXIstIng rules, regulatIOns and polICIes set forth m 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 12 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 provlSlons 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 regulatIons; prOVIded, however, that thIS Agreement shall remwn In full force and effect to the extent It IS not mconslstent WIth such laws or regulatIOns and to the extent such laws or regulatIons do not render such remwmng provlSlons ImpractIcal to enforce 13. Amendment or Cancellation of Agreement ThIS Agreement may be amended or canceled m whole or In part only by mutual consent of the partIes In the manner proVIded for In Government Code SectIOn 65868 14 Remedies (a) SpecIfic 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 avatlable to all Parties hereto. (b) Mandamus The PartIes hereby stIpulate that the CIty'S perfonnance of thIS Agreement IS compnsed of mlmstenal, non-dIscretIonary duties whIch the law specIfically enJoms and admInIstrative actIons taken as the result of proceedmgs In whIch by law heanngs are reqUIred to be gIven, eVIdence IS reqUIred to be taken and dIscretIOn m the determInatIon of facts IS vested In the CIty, and that Developer shall be entItled to obtam relief In the form of a wnt of mandate In 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 NothIng in thIS paragraph (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 15 shall not limIt any other nghts, remedIes, or causes of actIon that any Party may have at law or equIty. D IWPSIIRESOIBl!NNC1'T DAaILWI05-02-9~ 9 Plan1lJng ComnUSlOn &solulJOn 95-3 February 22, 1995 (d) Any legal action shall be brought m the Supenor Court for Orange County, California. 14.1 CIty Not Liable For Damages It IS acknowledged by the Parties that City would not have entered Into thiS Agreement if It were to be liable In datnages under or With respect to thiS Agreement or the applicallon thereof Consequently, and except for the payment of attorneys fees In accordance wIth Section 20 below, City shall not be liable m damages to Property Owner, Developer, or to any assIgnee, transferee or any other person, and Developer and Property Owner covenant on behalf of themselves and their successors In Interest not to sue for or clatm any damages: (a) for any breach of, or which anses out of, thiS Agreement; (b) for the takIng, Impairment or restncllon of any nght or Interest conveyed or proVided hereunder or pursuant hereto, or (c) arlSlng out of or connected With any dispute, controversy or Issue regardmg the applicallon or mterpretallon or effect of the provlSlons of thIS Agreement; proVided, however, that the foregomg 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 anse under tins Agreement; (11) are not With respect to any nght or Interest conveyed or proVided hereunder or pursuant hereto; and (lll) do not anse out of or which are not connected With any dispute, controversy or Issue regardmg the applicatIOn, Interpretallon or effect of the provlSlons of thiS Agreement to, or the application of, any CIty rules, regulallons or officJaI poliCies. 14.2 Breach By ActIOn of the Electorate TheParlies hereby warrant that each enters into thIS Agreement With the understandIng that the Development Agreement Law authonzes thiS Agreement to bInd the City even as to actions taken by the voters of the City. If, a court of competent Junsdlcllon enters a final, non-appealable order to the contrary and the City defaults on Its obligatIOns under the Agreement WIthIn the meanmg of Section 15 solely or prinCipally due to an aClIon taken by the electorate of the City In the exerCIse of the reserved powers of Initiative and referendum, thiS Agreement shall be modified or suspended to the extent reqUIred by Government Code Section 65869.5 and Developer's nght to seek specific performance, a wnt 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 JUrisdIction, m which case Developer's pnnclpal remedy shall lie In reformation of thIS Agreement. 15 PeriodiC ReView of Compliance WIth Agreement 15 1 Penodlc Review. CIty and Developer shall revIew thIS Agreement at least once every SIX (6) months from the date thIS Agreement IS executed m accordance With the procedures set forth In Section 28-2766 of the Code of the CIty of Seal Beach, California CIty shall notify Developer In wntlng of the date for revIew at least thIrty (30) days pnor thereto 15.2 Good Faith Comnliance. Dunng each penodlcrevlew, Developer shall be reqUIred to demonstrate good faith compliance With the terms of thiS Agreement D IWPSIIRBMlIBI!NNETI DAOILW\O~-02-95 10 . Planmng Comnu lion Resoluhon 95-3 February 22, 1995 16. Event of Default by Developer. If City determmes 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 wntten notice to Developer, specIfy the manner In whIch Developer has failed to so comply and state the steps Developer must take to bnng Itself into compliance. If, WIthin sixty (60) days after the effective date of notice from CIty specifYIng the manner In which Developer has fat led to so comply, Developer does not commence all steps reasonably necessary to bnng Itself Into compliance as requIred and thereafter diligently pursue such steps to completIon, then Developer shall be deemed to be m default under the terms of thiS Agreement and City may termmate thiS Agreement, seek specific performance as set forth In Section 15, or mvoke any other remedies afforded by law 17. WaIvers and Delays 17 1 WaIver Failure by a party to InSist upon the stnct performance of any of the provIsions of thiS Agreement by the other party, and fatlure by a party to exercise ItS nghts upon a default by the other party hereto, shall not constitute a watver of such party's nght to demand stnct compliance by such other party In the future. 17.2 ThIrd Parties. Nonperformance shall not be excused because of a fatlure of a third person except as prOVided m SectIon 18.3 below 17 3 Force Ma1eure Neither party shall be deemed to be In default where faIlure or delay m performance of any of ItS obligations under thIS Agreement IS caused by floods, earthquakes, other Acts of God, fires, wars, nots or SImilar hostilities, strikes, other labor difficulties, federal or state government regulatIOns, court actIOns, or other causes beyond the party's control 18. NotIces. All notIces reqUIred or proVided for under thIS Agreement shall be In wntIng and delivered In person or depOSited In the Umted States mati, postage prepatd and addressed as follows. TO CITY: Cily of Seal Beach Attn: Dlfector of Development Services 211 Eighth Street Seal Beach, Califorma 90740 TO DEVELOPER: Ron Bennett 935 Catalma Avenue Seal Beach, CA 90740 Either party may change the address stated herem by gIVIng notIce, In wntIng, to the other party and thereafter nOtices shall be addressed and submitted to the new address Notices shall be deemed receIved upon personal delivery or upon the third (3rd) day follOWIng depoSit In the U S matI In the manner set forth above 19. Attorneys' Fees. If legal action IS brought by any party against another for breach of this Agreement, or to compel performance under thiS Agreement, the prevaIlIng party shall be entItled to an award of actual attorneys' fees and costs. 20. Transfers and ASSIgnments 20 1 Right to ASSign. Developer shall have the nght to sell, transfer or assign ItS respectIve Interest m the Property m whole or In part (proVided that no such partial D IWP51IRBSOIBI!NN1:TT DAOILW\OI-02-95 11 PlanlUng CommlSlOn Resolution 95-3 February 22, 1995 transfer shall be permitted to cause a Violation of the SubdIvIsion Map Act, Government Code Section 66410, l:! ~.) to any person, partnershIp, JOInt venture, firm or corporation at any time dunng the tenn of thiS Agreement, provIded, however, that any such sale, transfer or assignment shall Include the assignment and assumption of the nghts, duties and obligatIOns ansIng under or from tins Agreement. 21. Project as a Pnvate UndertakIng. It is specifically understood and agreed by and between the parlies hereto that the development of the ProJect is a pnvate 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 aSSOCIRtlon of any kInd IS fonned by this Agreement. The only relationship between CIty, on one hand, and Developer, on the other, IS that of a government entity regulatIng the development of pnvate property. 22. Emment DomaIn No provIsIon of thIS Agreement shall be construed to limit or restnct the exercIse by CIty of ItS power of emInent domam 23. Authont;y to Execute The persons executing thiS Agreement on behalf of Developer warrant and represent that each has the authonty to execute thiS Agreement on behalf of the Developer and to bInd Developer to the performance of ItS respective obligations hereunder. 24. Recordation. 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 penod reqUired by SectIOn 65868 5 of the Government Code. 25 ProtectIOn of Mortgage Holders. Nothmg contained hereIn shall limit or Interfere With the lien of mortgage holders havmg 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" Includes any deed of trust 26. SeverabilIty of Terms Ifany term, proVISIon, covenant or condition of thiS Agreement shall be determIned InvalId, VOId or unenforceable, the rematnder of thiS Agreement shall not be affected thereby to the extent such rematmng provISIons are not rendered Impractical to enforce. 27. Subsequent Amendment to AuthonzIng 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) m 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 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 pursuant to the prOVISIOns set forth m the Agreement and Government Code Section 65868. 28 IntelllretatIon and GovernIng Law ThiS Agreement and any dIspute ansIng hereunder shall be governed and Interpreted In accordance With the laws of the State of Callforma. D IWP5I\RESOIBENNB1T DAOILWIO'i-02-9S 12 . Planmng ComnUSlOn Resolunon 95-3 F~bruary 22, 1995 29. Secllon HeadIn~s All secllon headmgs and subheadmgs are Inserted for convenience only and shall not affect any construCllon or Interpretallon of thiS Agreement. 30. IncOl:poratlOn of RecItals and ExhIbits. RecItals A through K and attached Exhibits "A" through "D" are hereby Incorporated herem by thiS reference as though fully set forth in full 31. Rules of Construction and Miscellaneous Terms 31.1 Gender The smgular mcludes the plural, the masculine gender mcludes the femInIne, "shall" IS mandatory, "may" IS permIssIve 31.2 Time of Essence Time IS of the essence regardIng each proVISiOn of this Agreement m which lime IS an element 31.3 CoooeratlOn. Each party covenants to take such reasonable acllons and execute all documents that may be necessary to achieve the purposes and obJectives of thIS Agreement. Dated: , 1995 By: Ron Bennett "Developer" Dated: ,1995 CITY OF SEAL BEACH, a mUniCIpal corporation of the State of CalifornIa By. Mayor "City" ATIEST: By' City Clerk APPROVED AS TO FORM' By. CIty Attorney D IWPSIIRESO\BI:NNBIT DAO\LWI05-02.9~ 13 . PlannIng ConrnuslOn Resolullon 95-3 February 22, 1995 EXHIDIT "A" LEGAL DESCRIPTION OF PROPERTY Lots 22, 24 and 26 m Block 209 of Bay VIew Tract, In the CIty of Seal Beach, County of Orange, State of Cahforma, as shown a map thereof recorded m Book 8 Page 91, Miscellaneous Maps, records of satd Orange County * * * * D IWPSI\RESOIBI!NNI!IT DAOILWlOS-02-9S 14 t . Planmng ComnuslOn ResolutIOn 95-3 February 22, 1995 EXHIBIT "B" DEVELOPMENT PLAN PERMITS AND APPROVALS VARIANCE 94-7 (NOTE' REQUIRED BUILDING PERMITS AND ALL OTHER APPROPRIATE PERMITS WILL BE ATIACHED UPON ISSUANCE) D IWPSllRESOIDI:NNJ:1T DAO\LW\O~-02-9~ 15 . Plannmg Comnu "on ResolUllon 95-3 Feb,uary 22, 1995 EXHIBIT "e" IMPLEMENTING RESOLUTION NO. 95-2 D IWPSIIRBSOIBI!NNI!IT DAGlLWlO'i 02-95 16 '" . Planmng ConwuSlon Resolution 95-3 February 22, 1995 EXHIBIT "D" VARIANCE 94-7 APPROVED "FLOOR PLAN" ATTACHED * * * * D IWPSIIRESOIIlENNITf DAOILWlOS-02-9S 17