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HomeMy WebLinkAboutFreeway Industrial Park and Gothard Express Partners - 2014-11-17Dept. ID Pw 14-061 Page 1 of 2 Meeting Date: 11/17/2014 CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTION MEETING DATE: 11/17/2014 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Travis K. Hopkins, PE, Director of Public Works SUBJECT: Approve the Execution of a License Agreement with Freeway Industrial Park and Gothard Express Partners, L.P. for Maintenance of Landscaping and Hardscaping Improvements In the Public Right -of -Way Along Edinger Avenue and Gothard Street Frontages (Green 'N' Clean Development) Statement of Issue: The conditions of approval for the Green 'N' Clean Development Project, located at the northwest corner of Gothard Street and Edinger Avenue (Conditional Use Permit No. 11-031), require that the owner/developer (Freeway Industrial Park and Gothard Express Partners, L.P. respectively) execute a License Agreement with the City of Huntington Beach for maintenance of landscaping and hardscaping improvements within the public right-of-way along the project frontage. Financial Impact: No funding is required for this action. Recommended Action: Approve and authorize the Mayor and City Clerk to execute and record the "License Agreement Between the City of Huntington Beach, Freeway Industrial Park, and Gothard Express Partners, L.P. to Provide Installation and Maintenance of Landscaping and Hardscaping Improvements in the Public Right -Of -Way." Alternative Action(s): Do not authorize execution of the License Agreement and direct staff accordingly. This action will prevent Freeway Industrial Park and Gothard Express Partners, L.P. from satisfying the City's conditions of development for this project and will increase the maintenance responsibilities of the City. Analysis: The project site is located at 7311 Edinger Avenue and is known as the "Green 'N' Clean" Development. The development conditions of approval for this project were approved by the City's Planning Commission on July 10, 2012, (Attachment 2). Condition of Approval No. 6(b) requires that the owner/developer execute a Landscape Maintenance License Agreement with the City to address the continuing maintenance and liability for all landscaping, irrigation, furniture and enhanced hardscape that encroaches into the Edinger Avenue and Gothard Street rights -of -way. The Agreement has been prepared, signed by the developer, approved as to form by the City Attorney, and is now ready for final City approval and execution. Item 13. - 1 H B -466- Dept. ID PW 14-061 Page 2 of 2 Meeting Date: 11/17/2014 Environmental Status: The subject request is exempt pursuant to the California Environmental Quality Act. Strategic Plan Goal: Enhance economic development. Attachment(s): 1. "License Agreement Between the City of Huntington Beach, Freeway Industrial Park, and Gothard Express Partners, L.P. to Provide Installation and Maintenance of Landscaping and Hardscaping Improvements in the Public Right -Of -Way." 2. Notice of Action for Conditional Use Permit No. 11-031 (Green `N' Clean Development) 1JB -467- Item 13. - 2 ENmR' � irr This Document was electronically recorded by City of Huntington Beach RECORDING REQUESTED BY: CITY OF HUNTINGTON BEACH WIZEN RECORDED MAIL TO: City Clerk City of Huntington Beach P.O. Box 190 / 2000 Main Street Huntington Beach, CA 92648 Fee exempt per Government Code § 6103 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder Illlllll IIIIIIII 1111111111111111111111111111111111111111111111111 1111NO FEE 2014000508813 02:15pm 11/25/14 276 405 Al 18 0.00 0.00 0.00 0.00 51.00 0.00 0.00 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH, FREEWAY INDUSTRIAL PARK, AND GOTHARD EXPRESS PARTNERS, L.P. TO PROVIDE INSTALLATION AND MAINTENANCE OF LANDSCAPING AND HARDSCAPING IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY This License Agreement (the "Agreement") is made and entered into by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation, hereinafter referred to as "CITY," and FREEWAY INDUSTRIAL PARK, a California corporation, hereinafter referred to as "FREEWAY," and GOTHARD EXPRESS PARTNERS, L.P., a California Limited Partnership hereinafter referred to as "LICENSEE." WHEREAS, LICENSEE is the ground lessee of certain real property located in the City of Huntington Beach, County of Orange, State of California, which is more particularly described in the legal description attached hereto as Exhibit "A" and incorporated by this reference (the "Property"); and FREEWAY is the owner of the Property and is a party to this Agreement in order to consent to the effects of this Agreement with respect to the Property; and LICENSEE is processing approvals with the CITY to construct a carwash facility, restaurant and retail store project on the Property; and CITY is the owner of those certain areas in the immediate vicinity of the Property that are depicted on Exhibit "B" attached hereto and incorporated herein by this reference (the "Improvement Areas"); and In connection with the development of the Property, CITY and LICENSEE desire to assign responsibility for the installation and maintenance of landscaping and hardscaping within the Improvement Areas, as defined below in Section 5, and the costs associated therewith in accordance with plans and specifications submitted by LICENSEE and as reasonably approved by CITY; and 14-4136/105680 By this Agreement, CITY and LICENSEE desire to clarify and specifically delineate their obligations with respect to the installation and maintenance of landscaping within the Improvement Areas, NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, CITY and LICENSEE covenant and agree as follows: 1. GRANT OF LICENSE. Subject to terms and conditions hereinafter set forth, CITY hereby grants to LICENSEE a non-exclusive, revocable license ("License") to install and maintain landscaping and hardscaping within the Improvement Areas pursuant to the terms as set forth in this Agreement. 2. TERM. The term of the License (the "Term") granted herein shall be perpetual, provided that CITY may terminate the License and this Agreement upon thirty (30) days written notice to LICENSEE. 3. TERMINATION. In the event of any such termination, the CITY may, at its option, either: (a) at its sole expense, disconnect existing water and electrical supply sources to the Improvement Areas from the Property (leaving the water and electrical systems serving the Property fully functional and in compliance with law), and construct and reconnect CITY water and electrical supply sources to the Improvement Areas, or (b) continue to use water and electricity from the Property for the Improvement Areas, in which case CITY shall agree in writing, upon terms acceptable to the parties, to reimburse LICENSEE on a monthly basis for the reasonable costs of such water and electricity, and, at its sole expense, to maintain in a good condition and repair the portion of the water and electrical systems located in the Improvement Areas. 4. DESCRIPTION OF IMPROVEMENTS. All improvements installed within the Improvement Areas shall be as depicted on those certain plans and specifications as approved by the CITY relative to the Property and the subject development thereof. The landscaping and other improvements within the Improvement Areas for which LICENSEE, at its sole cost at no expense to the CITY, shall install, repair, maintain, and/or replace in accordance with the terms of this License shall be collectively referred to as the "LICENSEE'S Improvements" and includes the following: (a) Landscaping, Irrigation Systems and Plant Material: Plants and trees in accordance with the Landscaping Plans relative to the Property and the subject development thereof submitted by LICENSEE and approved by the CITY and the irrigation systems serving the same. (b) Hardscaping: Enhanced and concrete paving including sidewalks, driveways, access ramps and stairs in accordance with the precise grading plans relative to the Property and the subject development thereof submitted by LICENSEE and approved by the CITY. 14-4136/105680 2 5. MAINTENANCE RESPONSIBILITIES. At LICENSEE'S sole cost and expense, LICENSEE agrees to perform all maintenance responsibilities for the Improvement Areas, including, but not limited to: sidewalk cleaning; trash disposal; signs; watering; repairing and/or adjusting irrigation systems when failures occur; fertilizing; cultivating; edging; performing general planting and trimming or other corrective gardening; spraying grass and plants with both insecticides and herbicides; and, generally keeping the Improvement Areas in a clean, secure and attractive condition, taking into consideration normal growth of the landscape materials and a continuation of the aesthetic quality of the area. LICENSEE agrees to maintain and keep the Improvement Areas in good condition and repair, free and clear of litter and debris and free from any nuisances and to comply with all health and police regulations, in all respects at all times. LICENSEE agrees to dispose of litter and debris in a sanitary and legal manner and location. All of the responsibilities listed in this Paragraph 5 (including subparts) shall collectively be referred to as "Maintenance Responsibilities." (a) Maintenance of Trees and Plants. LICENSEE's maintenance obligations shall include watering, repairing, maintaining, adjusting and monitoring irrigation systems when failures occur, fertilizing, edging, performing general planting and trimming or other corrective maintenance, spraying with insecticides and herbicides, and generally keeping the Improvement Areas in a clean, secure and attractive condition, taking into consideration normal growth of the landscape materials and a continuation of the aesthetic quality of the Improvement Areas, including but not limited to the following: 1. Provide and apply fertilizer as necessary to sustain healthy growth. 2. Maintain the Improvement Areas to allow access by CITY personnel to CITY facilities and in a condition that is substantially free from weeds, debris and harmful insects at all times. 3. Keep plantings trimmed to eye pleasing appearance. 4. Use only those pesticides and fertilizers approved by the State of California and in a manner consistent with label and legal restrictions. 5. Remove and replace unhealthy, dead, invasive or unplanned plantings as they are observed. 6. Keep the entire area policed and free of litter and deleterious material. LICENSEE shall provide trash pick-up, sweeping, and clean-up as required to ensure no offensive odors, gum, wax, litter, liquids or other materials are allowed to remain on or stain paving, planters, containers, decorative features, artwork or other surfaces. 7. Maintain, repair and operate irrigation system in a manner that prevents water from flooding onto the right-of-ways. 8. All tree trimming shall be done by an I.S.A. Certified Arborist or an I.S.A. Certified tree worker under the direct supervision of an I.S.A. Certified Arborist. Said trimming shall be per the International Society of Arborist, A.N.S.I. 300A standards. Any tree work not 14-4136/105680 3 conforming to these requirements shall be subject to damage assessment by the City of Huntington Beach Tree Supervisor. Damages may potentially lead to penalties which can involve removing and replacing the damaged tree with an approved replacement of the same size that was originally planted, and payment of fines equal to the value of the original (damaged) tree. Any fines shall be payable by LICENSEE to the CITY. 9. If for any reason LICENSEE is unable to maintain the Improvement Areas in a manner satisfactory to the CITY, LICENSEE shall re -landscape the Improvement Areas to a condition acceptable to the CITY at LICENSEE's sole cost and expense. 10. Control and maintain the Improvement Areas such that no landscaping or plant materials growth, or irrigation water spray, obstructs or hinders vehicular or pedestrian traffic, or encroaches across or onto any bicycle path, sidewalk, public access area, the street right-of-way from the edge of the curb/gutter to the center of any street right-of-way. 11. Conform to all applicable Best Management Practices set forth in the CITY'S Local Implementation Plan Section A-9, Existing Development Exhibit A-9.11, BMP Fact Sheet 1 C7 Landscape Maintenance and the Arboricultural and Landscape Standards Specification issued by the Department of Public Works. (b) Maintenance of Hardscape Material. LICENSEE's maintenance obligations shall include all concrete and enhanced hardscaping material including all sidewalks, driveways, access ramps and stairs. Maintenance includes, but is not limited to, linear root barriers, concrete repair and replacement, grinding or patching variations in elevation of sidewalks and driveways for an acceptable riding surface, and the removal of dirt, debris, graffiti, weeds, and any other deleterious items or material on or about the sidewalks or driveways in an expeditious manner. (c) Utilities Serving the Improvement Areas. LICENSEE shall bear the expense of electricity and any other utility necessary to serve the Improvement Areas. LICENSEE shall be responsible for using such utilities in a secure and hazardless manner, complying in all respects with applicable codes and ordinances. (d) Signage. LICENSEE shall repair and maintain during the Term any signage constructed and installed on the Improvement Areas by LICENSEE. 6. PLANS AND SPECIFICATIONS. Throughout the Term, LICENSEE shall perform, at its sole cost and expense, any and all repairs, replacements or refurbishing to the Improvements which LICENSEE constructs in the Improvement Areas as necessary to bring the Improvements into an operating condition, all in accordance with plans and specifications as submitted by LICENSEE to CITY, which plans and specifications shall be subject to the prior written approval of CITY. No changes, modifications, or alterations may be made to the Improvement Areas without the prior written consent of CITY. 7. MATERIAL ALTERATIONS. After the approval of the plans and specifications and the installation of the Improvements in the Improvement Areas in accordance with the plans and specifications, no material changes, modifications or alterations may be made to the Improvement Areas without the prior written consent of CITY. 14-4136/105680 4 8. CITY REQUIREMENTS. LICENSEE, or anyone performing work on behalf of LICENSEE, shall be properly licensed by CITY for any work performed on the Improvement Areas. Furthermore, LICENSEE, or anyone performing work on behalf of LICENSEE, shall acquire the proper encroachment permit and comply with all other CITY requirements prior to performing any work on Improvement Areas in the public right-of-way. 9. CITY RIGHT TO INSPECT. CITY shall have the right to inspect the Improvement Areas at any time to ensure that LICENSEE is performing its obligations hereunder. CITY and LICENSEE shall negotiate in good faith to come to a mutual agreement as to the time and date for such inspections. 10. DAMAGE TO IMPROVEMENT AREAS. In the event any damage is caused to any pathways, sidewalks, curbs, gutters, street furniture, street lights, medians, streets or utilities as a result of the installation of the landscaped material installed on the Improvement Areas and/or the performance of the maintenance responsibilities of the Improvement Areas, LICENSEE agrees to repair same at its own expense. In the event that damage is caused by the acts of any person to any portion of the landscaped area or in the event any equipment is broken or breaks or is destroyed or in the event vegetation rots or dies, said equipment or vegetation shall be replaced or restored within ten (10) calendar days of the date of the breakage or destruction. Stolen items will be considered destroyed for purposes of this Section 10. 11. REPAIR BY CITY. Except as otherwise provided for in this License, in the event any damage is caused to any of the LICENSEE's Improvements within the Improvement Areas as a result of the installation, maintenance and/or repair work performed by the CITY or its contractors, agents or employees within the Improvement Areas, CITY shall promptly repair the same at its own expense. 12. COOPERATION. In the event both LICENSEE and CITY are required to repair damage to the improvements the parties shall cooperate with each other so as to minimize the costs incurred by each of them. 13. MECHANICS' LIENS. LICENSEE agrees not to suffer any mechanics' lien(s) to be filed against the Improvement Areas by reason of any work, labor, services or material performed at or furnished to the Improvement Areas, by or through LICENSEE. LICENSEE shall, at its sole cost and expense, cause any mechanics' lien(s) which may be filed against the Improvement Areas to be released or bonded or affirmatively insured within sixty (60) days after the date of filing.of such mechanics' lien(s). Nothing in this Agreement shall be construed as consent on the part of the CITY to subject the CITY's estate in the Improvement Areas to any mechanics' lien(s) or liability under the mechanics' lien laws of the State of California. 14. ASSIGNMENT. The License herein granted is personal to LICENSEE and any attempt to assign the License to any entity shall require the prior approval of CITY and is subject to the provisions set forth in Section 37 below. Notwithstanding the foregoing, assignment of the License to a LICENSEE affiliated entity shall not require prior approval of CITY. Other than the License granted hereunder, LICENSEE hereby expressly waives any claim to or interest or estate of any kind or extent whatsoever in the Improvement Areas arising out of the License or out of LICENSEE'S use or occupancy of the Improvement Areas, whether now existing or arising at any 14-4136/105680 5 future time. This License is appurtenant to the Property and may not be separately assigned apart from the Property or the interests therein. LICENSEE shall give notice in writing to CITY of any such assignment and delegation; such notice shall include the mailing address of the delegee, and will become the delegee's address for service of notices. LICENSEE hereby covenants for itself and its successors and assigns, that conveyance of any interest in the Property shall constitute an assumption by any successors, assigns or transferees of LICENSEE, of the obligations under this License, and upon such conveyance, the predecessor in interest of such assuming party shall be deemed relieved from any further obligations or responsibilities under this License. 15. WORKERS COMPENSATION INSURANCE. Pursuant to California Labor Code § 1861, LICENSEE and its successors or assigns acknowledges awareness of Section 3700 et seq. of said California Labor Code, which requires every employer to be insured against liability for workers' compensation. LICENSEE covenants that it will comply with such laws and provisions prior to conducting any activity pursuant to this license. LICENSEE shall maintain such Workers' Compensation Insurance in an amount of not less than One Million Dollars ($1,000,000) bodily injury by accident, each occurrence, One Million Dollars ($1,000,000) bodily injury by disease, each employee, and One Million Dollars ($1;000,000) bodily injury by disease, policy limit, at all times incident hereto, in forms and underwritten by insurance companies reasonably satisfactory to CITY. LICENSEE shall require all subcontractors retained by LICENSEE to perform work hereunder to provide such workers' compensation insurance for all of the subcontractors' employees. LICENSEE shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation insurance and LICENSEE shall similarly require all subcontractors to waive subrogation. 16. OTHER INSURANCE. In addition to the workers' compensation insurance in Section 15 above and LICENSEE's covenant to indemnify CITY in Section 18 below, LICENSEE or its successors or assigns shall obtain and furnish to the CITY and carry at all times incident hereto, on all activities to be performed in the Improvement Areas as contemplated herein, general liability insurance including coverage for bodily injury, property damage and motor vehicle coverage. All insurance shall be underwritten by insurance companies reasonably satisfactory to CITY. Said insurance shall name the CITY as Additional Insureds and shall specifically provide that any other insurance which may be applicable to all activities to be undertaken by LICENSEE concerning the Improvement Areas shall be deemed excess coverage and that LICENSEE's insurance shall be primary. Said policy of insurance shall pay on behalf of LICENSEE, its officers, agents, and employees, while acting within the scope of their duties, against any and all claims of liability arising out of or in connection with all activities to be undertaken by LICENSEE concerning the Improvement Areas affected by the license. LICENSEE shall subscribe for and maintain said insurance policies in full force and effect during the life of this Agreement, in an amount not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, such limit shall be not less than One Million Dollars ($1,000,000). In the event of aggregate coverage, LICENSEE shall immediately notify CITY of any known depletion of limits. LICENSEE shall require its insurer to waive its subrogation rights against CITY. 14-4136/105680 6 17. CERTIFICATE OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS. Prior to conducting any activity pursuant to this Agreement, LICENSEE shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; said certificates shall provide the name and policy number of each carrier and policy; and shall state that the policy is currently in force; and shall promise to provide that such policies will not be canceled or modified without providing notice to CITY in accordance with policy provisions. LICENSEE shall maintain the foregoing insurance coverage in force until the Term of this Agreement has expired or this Agreement is terminated. The requirement for carrying the foregoing insurance coverage shall not derogate the obligations of LICENSEE under this Agreement. CITY or its representative shall at all times have the right to demand a copy of all said policies of insurance. LICENSEE shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to LICENSEE's liability policy as required hereunder, naming the CITY as Additional Insureds, shall be provided to the CITY Attorney for approval prior to the commencement of any work by LICENSEE pursuant to this Agreement. 18. INDEMNIFICATION AND HOLD HARMLESS. LICENSEE hereby agrees to protect, defend, indemnify and hold and save harmless CITY, its officers, and employees, and assigns (hereinafter collectively called "Indemnified Parties") against any and all liability, claims, judgments, penalties, damages, expenses, costs and demands, including without limitation reasonable attorneys' fees, however caused, including those resulting from death or injury to any person (including without limitation any Indemnified Party), and damage to any property, real or personal, of any kind wherever located and by whomever owned (including, without limitation, property owned by an Indemnified Party), which injury, death or physical damages arises directly or indirectly out of the grant of license herein contained or the activities to be undertaken by LICENSEE (or LICENSEE's officers, employees, agents, contractors, LICENSEEs, or invitees) concerning the Improvement Areas, caused in whole or in part by any negligent act or omission of the LICENSEE, any of its contractors, subcontractors, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable (collectively, the "LICENSEE Parties"), including but not limited to concurrent active or passive negligence of the LICENSEE Parties, except to the extent caused by the negligence or willful misconduct of CITY or any of its agents, contractors, subcontractors, officers, or employees. City shall provide immediate notice to LICENSEE whereupon LICENSEE shall conduct any defense required hereunder at its sole cost and expense. 19. INDEPENDENT CONTRACTOR. LICENSEE agrees that all work done or undertaken by it on the Improvement Areas shall be for its sole account and not as an agent, servant or contractor for CITY. 20. RULES AND REGULATIONS. LICENSEE agrees to obey and observe (and cause its officers, employees, contractors, invitees and all others doing business with LICENSEE to obey and observe) all rules and regulations of general applicability regarding the Improvement Areas as may be reasonably established by CITY at any time and from time to time during the Term of this Agreement. 14-4136/105680 7 21. DEFAULT. In the event LICENSEE does not perform, or cause to be performed, any of the Maintenance Responsibilities as contemplated by this Agreement, CITY shall first provide written notice to LICENSEE in the manner and at the address for notices provided in Section 23, describing the alleged default by LICENSEE. If LICENSEE fails to cure said default within thirty (30) calendar days following the date of delivery of such notice of default, CITY may thereafter cause such maintenance to be performed, and all actual and reasonable costs incurred shall be assessed to and billed directly to the LICENSEE. Any invoice for such costs incurred shall include copies of paid invoices evidencing the costs incurred. Payment from LICENSEE shall be due within thirty (30) calendar days following the date of receipt of invoice. In addition, one and a half (1-1/2%) interest per month shall be added for each month payment hereunder is due but unpaid. 22. APPLICABLE LAW. LICENSEE shall, at its sole cost and expense, faithfully observe in the use and occupation of the Improvement Areas all municipal ordinances, and all state and federal statutes now in force and which may hereafter be in force, and shall fully comply, at its sole expense, with all regulations, orders, and other requirements issued or made pursuant to any such ordinances and statutes. All building permits, business licenses and other applicable permits and licenses shall be secured and paid for by LICENSEE. 23. NOTICES. Any notice or special instructions required to be given in writing under this Agreement shall be given either by personal delivery to LICENSEE (as designated herein) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope and sent (i) postage prepaid, and depositing the same in the United States Postal Service, via certified or registered mail, or (ii) using nationally recognized overnight courier service, or (iii) via facsimile transmission (with a copy to also be placed in the United States Mail), and addressed as follows: TO CITY: TO LICENSEE: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: Director of Public Works Tel: (714) 536-5431 Facsimile: (714) 374-1573 TO FREEWAY: Freeway Industrial Park c/o Janette Trotter Ditkowsky 2032 La Colina Drive Santa Ana, CA 92705 Tel: (714) 742-4526 GOTHARD EXPRESS PARTNERS, L.P. c/o Green "N" Clean Inc. 26342 Oso Parkway, #201 Mission Viejo, CA 92691 Attn: Brett Blanchard, President Tel: (949) 544-7128 14-4136/105680 Any mailing address or telefacsimile number may be changed at any time by giving written notice of such change in the manner provided above at least ten (10) days prior to the effective date of the change. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal receipt actually occurs or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. A person may not give official or binding notice by facsimile. The effective time of a notice shall not be affected by the receipt, prior to the receipt of the original, of a facsimile copy of the notice. 24. CAPTIONS AND TERMS. The captions and section numbers appearing in the Agreement are for convenience only and are not a part of the Agreement and do not in any way limit, amplify, define, construe or describe the scope of intent of the terms and provisions of this Agreement, or in any way affect this Agreement. 25. RECORDATION. LICENSEE shall record this Agreement in the Official Records of the County of Orange, State of California. 26. NON -EXCLUSIVITY. This License is non-exclusive, and the Improvement Areas shall at all times be open to use by the general public. 27. NONDISCRIMINATION. LICENSEE agrees that in the performance of this Agreement and use of the Improvement Areas it will not engage in, discrimination against any person because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or sex. 28. COOPERATION. LICENSEE shall in good faith cooperate in connection with its respective rights and obligations under this Agreement, including, but not limited to, performing any acts and executing any further documents that may be reasonably necessary to effectuate the purposes of or rights conferred under this Agreement. 29. SEVERABILITY. If any provision of this Agreement shall to any extent be deemed to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. Each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision, shall be valid and enforceable to the fullest extent permitted by law. 30. ENTIRE AGREEMENT. This Agreement, together with any attachments hereto or inclusions by reference, constitutes the entire agreement between the parties hereto relating to the rights herein granted and the obligations herein assumed, and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties hereto with respect to the rights and obligations contained herein. Any oral representations or modifications concerning this instrument shall be of no force or effect except a subsequent modification in writing, approved by the CITY and signed by the parties to be charged. 31. ATTORNEY'S FEES. If any action or proceeding is brought by either parry against the other under this Agreement, whether for interpretation, enforcement or otherwise, each party shall bear its own attorneys' fees. The prevailing party shall not be entitled to recover its attorneys' fees from the nonprevailing parry. 14-4136/105680 9 32. CITY RIGHT TO ENFORCE. Notwithstanding the provisions of Section 31 above, LICENSEE acknowledges and agrees that CITY has the right and standing, but not the obligation, to enforce any of the terms of this Agreement by any appropriate legal or equitable means and shall be entitled to reimbursement for any costs incurred in enforcing this Agreement. LICENSEE shall provide CITY with, and at all times keep current, contact information for LICENSEE and any property manager acting on its behalf. 33. GOVERNING LAW. This Agreement shall be governed, construed, interpreted, and enforced under and in accordance with and governed by the laws of the State of California. 34. AMENDMENTS. This Agreement may be amended, modified, and/or supplemented only by the written agreement of LICENSEE and CITY, or the successors and assigns of each. 35. COVENANTS. Each of the covenants set forth in this Agreement (i) shall run with the land; (ii) shall be binding upon, and shall inure to the benefit of, any person or entity having or acquiring any interest in any portion of any property benefited or burdened thereby, during the period of such person's or entity's ownership, and all of their respective successive owners and assigns; and (iii) shall be binding upon, and shall inure to the benefit of, the property benefited or burdened thereby and every portion thereof and interest therein. The License granted by this Agreement is subject to all matters of record as of the effective date of this Agreement. 36. DELEGATION OF AUTHORITY. CITY hereby delegates to its City Manager or his or her designee the authority to implement all provisions of this Agreement. 37. EXCLUSIVE BENEFIT OF PARTIES. The provisions of this Agreement are for the exclusive benefit of CITY and LICENSEE and their successors and assigns, subject to the provisions hereof, and neither for the benefit of nor give rise to any claim or cause of action by any other person. 38. SURVIVAL. All representations, warranties, waivers, and indemnities given or made hereunder shall survive termination of this Agreement. 39. AUTHORITY TO SIGN. LICENSEE hereby represents that the individual executing this Agreement on behalf of LICENSEE has full authority to do so and to bind LICENSEE to perform pursuant to the terms and conditions of this Agreement. 14-4136/105680 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers on O V&-,y _ /:; 2014. 7 GOTHARD EXPRESS PARTNERS, L.P., a California limited partnership By: t.C:y�er► Cat o, print name ITS: (circle one) Chairman/President/Vice President LICENSEE: FREEWAY INDUSTRIAL PARK, a California corporation print name ITS: (circle one) Chairma <President ' ice President AND By: i v'MCt1 v0ffif/y P141 TW print name ITS: (circle one) SecretaryChief Financial Of� fice sst Secretary - Treasurer 11 13-3832/99136 CITY: CITY OF HUNTINGTON BEACH, a California municipal corporation INITIATED AND APPROVED: 11"CZ irector of Public WcAcs REVI ND APPROVED: /1 CpFailager ROVED AS TO FORM: r ity Attor ey CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ��� State of California County of �� On �o N Z-O f before me, Date Here Insert Name and (Title o he,OOfficer personally appearedr+°"'�� ©� ��� Names) of Signers) ANDREDERRAN Com-m-is-sion720-64-84-3- i , Notary Public - California z Orange County Comm. Ex fires A r 18 -2018 who proved to me on the basis of sat' actory evidence to be the person(s) whose nam is/are subscribed to the with' ' trument and acknowledged to me he/sh /the execut the same in his/her th authori d capacit (ies , and that by his/her i signatur.0 on the instrument the perso or the entity upon behalf of which the persons cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNE S y hand and ff al. Sig re: Place Notary Seal and/or Stamp Above Signature ary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: _ Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) CAalmeA b Si er s ,/� ,,..11 /r ���2 Signer's Name. I �1��wLiar's Name: ice/ $� Corporate Officer — Title(s): i Corporate Officer — V❑'Individual ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Partner — ❑ Limited ❑ Attorney in Fact ❑ Attorney in Fact ❑ Trustee ❑ Trustee Title(s): ❑ General FTop of thumb here ❑ Guardian or Conservator El Guardian or Conservator ❑ Other: ❑ Other: finer Is Represe g: _jgner Is Represen g: Gliti►(l f ©2008 National Notary Association • 9350 De Soto Ave. P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL •. State of California County of V►,�� I,. On'�)'�� � 0\4 before me,y�tGsl�i ��.i1V�21D (W►��. (���1 1� U�. Date )ram Name and Title of the Officer personally appeared �—�\ \►-L1�-� Name(s) of Signer(&) WENDY BLANCHARD EVANS Y Commission * 3074203 LeNotary Public - California Orange County W.rM Comm. Expires Jul 11, 2018 who proved to me on the basis of satisfactory evidence to be the person(&) whose name(s) is/aae subscribed to the within instrument and acknowledged to me that he/s#e/t#ey executed the same in his/her/their authorized capacity(ieo, and that by his/fTer/their signature(&) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS y han and offici�seal. Place Notary Seal Above Signature: '--Signature of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General iJ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2013 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California �J A County of/f �� 6w61E -- On %D1 before me, l- • /, _ Z�T F Date Here Insert Narrik and Titld of the Officer personally appeared O C L .1 4vd O il /—. %_L,.iAW Name(s) of Signer(s) CIVIL CODE § 1189 who proved to me on the basis of satisfactory evidence to be the persort�(s�y' whose names are subscribed to the within instrument and acknowledged to me that ifiefsi executed the same in /the)0 authorized capacityciejsand that by h�ei Y signature on the instrument the persoQn or the entity upon behalf of which the person s) acted, executed the instrument. P L. ESPARZA I certify under PENALTY OF PERJURY under the Commission # 2032750 laws of the State of California that the foregoing Notary Public - California > paragraph is true and correct. Orange Countg MY Comm. E ires Au 4, 2017 WITNESS my hand and official seal. Signature: Place Notary Seal Above OPTIONAL Signature of Notaryblic Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: n 2012 National Notary Association o NationalNotarv.ora • 1-800-US NOTARY (1-800-876-6827) Item EXIIIBIT "A" LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: BEING PARCEL 1, AS SHOWN ON A PARCEL MAP FILED IN BOOK 44, PAGE 11 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, APN: 142-072-09 EXKIBIT "B" SEE ATTACKED LEGEND sg CONC. SIDEWALK PER CITY STD. PLAN 207. 4" THICK COLORED CONCRETE SIDEWALK WITH 2'X2' SAW —CUT GRID, PER ARCHITECTURAL PLANS. ytj �8tv# LF yr SJim t K itl}r PARKWAY OR LANDSCAPING AREA �� kvtrxgua: *x r A s a� ,s t `,... Far- e�1 r a „"is e 4'tzy' r� - r 6" CONCRETE PAVEMENT SECTION WITH #4 BARS AT 18" O.C. EACH WAY. 25?✓3h t S X' jat �,3�� � , � r � :, � � � � � -�-. �- ,t ,q + r ' ; � � . ❑ TREE WELL it r Tw r o TRAFFIC SIGNAL/STREET LIGHT BENCH 0 CATCH BASIN/INLET ;?43f+Trti 41r I PEDESTRIAN/STREET LIGHTS i i� T � A iEof FIRE HYDRANT 1 NO t SCALE BUS BUS SHELTER GREEN 'N' CLEAN MIXED USE CUP 11-031 / EA I1-013 7311 Edinger Avenue, City of Huntington Beach, CA 92647 VICINITY MAP & LEGEND LANDSCAPE HARDSCA.PE MAINI`ENAN CE LICENSE AGREEMENT EXHIBIT'B' SHEET 1 OF 2 CONTROL �'' EQUIPMENT CAR WASH TUNNEL J U =1 it / i � J — I / / RETAIL GREEN 'N' CLEAN MIXED USE CUP 11-031 / EA 11-013 7311 Edinger Avenue, City of Huntington Beach, CA 92647 SITE PLAN i EIFC. 44' Ill.. 6' 32' LEI L'f Z ! 0 rn M ¢ � CK F— U-5 o W _ W F— — d RESTAURANT a j rr0 AN -41 1 °r�e�• a �. N89-32'04"E 186.38' �I J CROSS GUTTER R=30.00' 0 15 30 '6=9011'39 -- EDINGER AVENUE L=47.23' T=30.10' Scale l"=30' _. --- - - - LANDSCAPE HARDSCAPE -- ---- - -- _ _ MANTENANCE LICENSE �-- C/L AGREEMENT EXHIBIT'B' SHEET 2 OF 2 J '— -1 ACC)0REP, CERTIFICATE OF LIABILITY INSURANCE Ill04i30f2014 DATE tMMIDDyn-n THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: if the certificate holder is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Phone: (949) 485-5467 Fax: (888) 394-3836 INSOURCE INSURANCE AGENCY 30011 IVY GLENN DR. SUITE 212 LAGUNA NIGUEL CA 92677 CONInsource Insurance Agency —FAX (888 394-3836 : 949) 485-5467 A C rani. ) EA=Ejcolston@insourceagency.com INSUREWS) AFFORDING COVERAGE NAIL # lNSURERA Essex Insurance Company Agency Lic#:OG50069 _.............._..-- INSURED GOTHARD EXPRESS PARTNERS LP INSURERB Evanston Insurance Company . INSURER C : Navigators Insurance Company 26342 OSO PARKWAY INSURER D: MISSION VIEJO CA 92691 INSURER E INSURERF rnirccnrslI CEIPTIPW TIl: It116MBER• 857 REVISION NUMBER: V THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INTR ( TYPE OF INSURANCE NSR 4WD ` POLICY NUMBER IR,,pPOLICY - _.. EEF f tFlM{DD?YYYYi POLtcY eXQ �MM7ODNYYYi LIMITS A ._.. ..... C,ENERAL LIABILITY X 3DP7097 11f14f13 11/14/14 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY I l DAMAGE TORF,NTEO__5{I,atla PRE#.kISES (Ea uccarence} MED. EXP (Any one person) .._...................._....___._ i S 5,000 ( CLAiNIS-MADE �_ OCCUR f j PERSONAL & ADV INJURY 5 1,000,000 ! APF ! ROVED S TO € GEN'L AGGREGAT E LIMIT APPLIES PER: GENERAL AGGREGATE 2,000,000 DUCTS -GOMPtOPAGG $ Not Included r^ .�..�1,000 }(. �- POLICY Ei.T I ; LCSC € ...redo Deductible claim rlalepar S _. .. -. AUTOMOBILE LIABILITY __.._ �ANYAUTO J ALL OWNED SCHEDULED AUTOS AUTOS HIRED AUTOS NON -OWNED .,_ UTOS j .�� ,. { �; Ja � � .. ... SINGLE LIMIT {Ea accrdsnt} ��.. E ,RY(Pef person) {�.. - --- -- #50DILY INJURY (Per' aacldenk) $ —.— $ liter Imit"soif51 , CityAttom PROPERTYCARi f;E '.(P., ac-lenh is , $ B X �_ ...._........... _. _._ _ UMBRELLA LIAR X OCCUR EXCESS LIAR CLAIMS -MADE ..................... XOAZ323213 11/14113 11114/14 EACH OCCURRENCE $ 1 000,000 ;AGGREGATE $ 1,000,000 - _---- ____- DED ! RETENTION S r—'-- Deductible per Clain: $ 0 ...................... WORKERS COMPENSATION AND EMPLOYERS' LIABtLITY ANY PROPRIETOR PARTNER EXEcuT vE YIN OFFICERJMEMBER EXCLUDED? {Mandatory In NH} ! Q yrs, descd6s undar DESCRIPTION OF OPERATIONS babw N f A I l __-..Y 'ATU- OiH wC B RY_f#:'TS j ER a _ ____{_TO E.L. EACH ACCIDENT a € E,L, DISEASE -EA EMPLOYEE $ _.-........._..._..._ ___ E.L. DISEASE -POLICY LIMIT _ $ C Builders Risk 04-BR005731 11/14/13 11/14/14 2,100,000 $2,500 deductible DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES (Attach ACORD ref, Additional Remarks Schedule, it more space Is required) CERTIFICATE HOLDER ADDED AS ADDITIONAL INSURED ONLY AS THEIR INTERESTS MAY APPEAR. Project address is located at 7311 Edinger Ave. Huntington Beach, Ca. 92647 The Builders Risk Policy includes but not limited to the following coverages: Fire, Vandleism, and Msllsious Mischief With a $2,500.00 deductible r.I=RTIFIr .dTF 1 I nI=R CANCELLATION The City of Huntington Beach, it's elected or appointed SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE officials, agents, officers, employees and volunteers THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 2000 Main Street I ACCORDANCE WITH THE POLICY PROVISIONS. Huntington Beach, Ca. 92648 AUTHORIZED J REPRESENTATIVE Attention: .jOhli CaIStCTI ACORD 25 (2010105) Oc 1988-2010 ACORD CORPORAT 10NV All rights reserved. The ACORD name and Inan arP rnaictered marks of ACORD HB -485- Item 13. - 20 COMMERCIAL GENERAL LIABILITY POLICY NUMBER: 3DP7097 Essex Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE DEAD IT CAREFULLY. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM PRODUCTS/COMPLETED OPERATIONS COVERAGE FORM LIQUOR LIABILITY COVERAGE FORM PROFESSIONAL LIABILITY COVERAGE OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE FORM Please refer to each coverage form to determine which terms are defined. Words shown in quotations on this endorsement may or may not be defined in all coverage forms. SCHEDULE Person or Entity: City of Huntington Beach, its elected or appointed officials, agents, officers, employees, and volunteers 2000 Main Street Huntington Beach CA 92648 Interest of the Above: City Where Development is Occurring Additional Premium: Incl {Check box if fully earned.®} WHO IS AN INSURED is amended to include the person or entity shown in the Schedule above as an Additional Insured under this insurance, but only as respects negligent acts or omissions of the Named Insured and only as respects any coverage not otherwise excluded in the policy. Our agreement to accept an Additional Insured provision in a contract is not an acceptance of any other provisions of the contract or the contract in total. When coverage does not apply for the Named Insured, no coverage or defense shall be afforded to the Additional Insured. No coverage shall be afforded to the Additional Insured for injury or damage of any type to any "employee" of the Named Insured or to any obligation of the Additional Insured to indemnify another because of damages arising out of such injury or damage. All other terms and conditions remain unchanged. MEGL 0009 09 11 Includes copyrighted material of Insurance Services Office, Inc. with its Page 1 of 1 permission. Item 13. - 21 HB -486- . . Re*olution Na. 2009-63 I certify that no vehicle(s) will be used or operated in the performance of the task(s) or event(s) for which this permit is granted. I authorize the City of Huntington Beach to immediately and retroact&ely revoke the license or permit issued in connection with or in the perfortnance of said task(s) or event($) if any vehicle(s) is us d. 'c Signature of Permittee, Print COMpany naMC (if applicable Date signed � I - ) 1-� 16407 IJB -487- Item 13. - 22 CITY OF HUNTINGTON BEACH 2000 Main Street, Huntington Beach, CA 92648 The State of California requires every enterprise or business to provide workers compensation insurance coverage. if you have no employees, you may make a declaration to that effect by completing and signing this form and returning to: City of Huntington Beach 2000 Main Street Huntington Beach, CA 9264r I certify that in the performance of the activity or work for which this permit is issued, I shall not employ any person in any manner so as to become subject to California Workers' Compensation Insurance requirements, I authorize the City of Huntington Beach to immediately and retroactively revoke the license or permit issued under this declaration if I hire any employee(s) or become subject to the provision of the laws requiring Workers' Compensation Insurance. Company Name: "I Address: 0-'�) S,1'L,,,1'11 . . ........ Z�� Title: (,'*-' F P, Date Signed: Item 13. - 23 KB -488- i ATTOM%G N YitC i ' I � Ka Huntington Beach Planning Commission 2000 MAIN STREET CALIFORNIA 92648= . . . . . . . . . . . . . . . . . . 11"* #[$]=W July 11, 2012 Jeff Bergsma 221 Main St. H Huntington Beach, CA 92648 SUBJECT: CONDITIONAL USE PERMIT NO. 11-031 (GREEN & CLEAN DEVELOPMENT) =41 PROPERTY #WNER: Freeway Industrial Park, 2032 La Colina Drive, Santa Ana, CA 92705 REQUEST: To permit 1) the construction of an approximately 3.,200 sqpress carwash and 3,400 sq. ft. retail building, and 2) the sales, service, and onsite consumption of alcohol within the proposed 2,650 sq. ft, restaurant and 400 sq, ft. outdoor dining area, LOCATION: 7311 Edinger Ave., 92647 (northwest corner of Edinger Avenue and Gothard Street) DATE OF ACTION: July 10, 2012 On Tuesday, July 10, 2012, the Huntington Beach Planning Commission took action on youl application, and your application was conditionally apl2roved. Attached to this letter are t findings and conditions of approval. i Please be advised that the Planning Commission reviews the conceptual plan as a basic ,M2-j-,#jj&g# iz *row• a 110ma W-am"-w-T I WIN= I Subdivision vroinanceinoraerioexpeaiiL-ineprocer>sing/Gc)Ttipietionoi jour LIN The conceptual plan should not be construed as a precise plan, reflecting conformance to all Zoning and Subdivision Ordinance requirements. Under the provisions of the Huntington Beach Zoning and Subdivision Ordinance, the action taken by the Planning Commission becomes final at the expiration of the appeal period. A person desiring to appeal the decision shall file a written notice of appeal to the City Clerk withir ten (10) calendar days of the date of the Planning Commission's action. The notice of appeal shall include the name and address of the appellant, the decision being appealed, and the grounds for the appeal. Said appeal must be accompanied by a filing fee of One Thousand, HB -489- - Item 13. - 24 Phone 714-536-5271 Fax --)LO WWW.Sljl.-,-j Notice of Action: CUP 11-031 July 11, 2012 Page 2 Seven Hundred Sixty -Three Dollars ($1,763.00) if the appeal is filed by a single family dwelling property owner appealing the decision on his own property and Three Thousand, Three Eighty - Three Dollars ($3,383.00) if the appeal is filed by any other party. In your case, the last day for filing an appeal and paying the filing fee is July 20, 2012 at 5:00 PM. Provisions of the Huntington Beach Zoning and Subdivision Ordinance are such that any application becomes null and void one (1) year after final approval, or at an alternative time specified as a condition of approval, unless actual construction has started. "Excepting those actions commenced pursuant the California Environmental Quality Act., you are hereby notified that you have 90 days to protest the imposition of the fees described in this Notice of Action. If you fail to file a written protest regarding any of the fees contained in this Notice, you will be legally legally barred from later challenging such action pursuant to Government Code §66020." If you have any questions, please contact Jill Arabe, the project planner, at jarabe@surfeity- hb.org or (714) 374-5357 or the Planning Department Zoning Counter at (714) 374-5357. Sincerely, Scott Hess, AICP, Secretary Planning Commission By: 4 Herb Fauland-, Planning Nhnager 64-611111010YA Attachment, Finding and Conditions of Approval — CUP No. 11-031 c: Honorable Mayor and City Council Chair and Planning Commission Fred A. Wilson, City Manager Scott Hess, Director of Planning and Building Bill Reardon, Division Chief/Fire Marshal Mike Vigliotta, Deputy City Attorney III Debbie DeBow, Principal Civil Engineer Mark Carnahan, Inspection Manager Jill Arabe, Assistant Planner Property Owner Project File Item 13. - 25 HB -490- W The Planning Commission finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to section 15303 of the CEQA Guidelines, because the proposed project consists of the construction of two commercial buildings not exceeding 10,000 square feet in floor area on a site zoned for such use. Furthermore, implementation of the project would not result in any new or more severe potentially adverse environmental impacts that were not considered in the Final EIR for the Beach and Edinger Corridors Specific Plan. Compliance with all applicable mitigation measures adopted with the Specific. Plan will be required of the project. I 111�11rii�'' � Ill Conditional Use Permit No. 11-031 to permit: 1) the construction of a 6,600 square feet commercial development consisting of 3,200 square feet express carwash building and 3,400 square feet retail building, and 2) the establishment of alcohol sales and service within 2,650 square feet restaurant space and 400 square feet outdoor dining area will not be *r to the value of the property and improvements in the neighborhood. The project will not significantly impact surrounding commercial uses or the future residential uses to the northeast of the subject property. The proposed commercial uses are similar to those existing uses in the vicinity. Potential impacts related to safety, noise, and traffic., are not anticipated because the site was previously used for commercial purposes and sufficient setbacks are provided from residential uses. The project is located at the corner of two arterial streets with the primary retail building sited near the intersection, which attracts higher visibility of the proposed commercial businesses. Other uses along this corridor are primarily tucked behind parking lots, reducing their visibility. The project is proposed to overall operate between the hours of 6 a.m. and 2 a,m,-, however the express carwash including the vacuums will be limited to between 7 a.m. and 9 p.m. to minimize noise impacts. The carwash building wilt also incorporate sound attenuating materials within its design. Furthermore, the layout of the site improves the visual surroundings by providing safer walkways for pedestrians and minimizing parking lot visibility along the corridor. 4- within a commercial development. The proposed alcohol use will not require additional parking above the requirement for the development. 2. The conditional use permit will be compatible with surrounding uses because the project consists of commercial uses similar to those found in the vicinity. Alcohol service and consumption are ancillary to the restaurant use and will not generate significant impacts related to parking, traffic, or noise. The project integrates sufficient setbacks and sound attenuation within the carwash building is designed for consideration of future residential development northeast of the subject site, The hours of operation for the proposed uses are consistent with surrounding businesses. Project design will incorporate site features such as outdoor seating areas, wider sidewalks, pedestrian scale lighting, and enhanced paving G:\PC\N0A12012�7-1G-2012 CUP 11 -031 Green& C' 1113-491- )meat Attachment 1.1 Item 13. - 26 that promote a pedestrian environment and encourage alternative transportation consistent with the intent of the specific plan. The development provides adequate site circulation for both vehicles and pedestrians by locating vehicular site access and the parking lot behind the building and widening sidewalks along the street frontages. The building's architecture is enhanced with a stone base at the pedestrian scale, variable fagade offsets, maternal changes, and horizontal articulation. 3. The proposed conditional use permit will comply with the provisions of the Beach and Edinger Corridors Specific Plan and other applicable regulations. The project complies with the development standards in terms of minimum onsite parking, height, setbacks, and architectural regulations among others. Adequate vehicular and pedestrian circulation is provided for convenient access throughout the project. 4. The granting of the conditional use permit will not adversely affect the General Plan. It is consistent with the Land Use Element designation of Mixed Use - Specific Plan Overlay - Design Overlay on the subject property. In addition, it is consistent with the following goals, policies, and objectives of the General Plan: A. Land Use Element Goal LUII: Achieve the development of projects that enable residents to live in proximity to theirjobs, commercial services, and entertainment, and reduce the need for automobile use. Goal LU 15: Achieve new development that enhances the City's quality of development and sense of place, goals for community character, and preserves significant historical resources. Policy L U 10. 1. 8: Require that entertainment, drinking establishments, and other similar uses provide adequate safety measures to prevent negative impacts on adjacent properties. The proposed project is a small commercial development located within close proximity of anticipated development of residential uses including the Boardwalk site, Bella Terra, and Huntington Beach Lofts, The site layout is oriented to pedestrians by providing the retail building closer to the street, locating the parking lot behind the building, expanding sidewalk widths, and activating the street corner by including site furniture for outdoor seating areas. Pedestrian walkways are also buffered from the arterial streets by shade trees, landscaped parkways, and the new frontage road. In addition., the proposed restaurant serving alcoholic beverages will market its services to local residents and visitors in the surrounding region. The ancillary use of alcohol service and consumption is appropriate to a restaurant when it is located within a commercial development and is surrounded by similar commercial uses. New residential or mixed use development will be sufficiently buffered by arterial streets and landscaping. B. Urban Design Element Policy UD 1. 2. 1: Require public improvements to enhance the existing setting for all key nodes and pedestrian areas through the consideration of the following: a) provide pedestrian connections and visual continuity between the node and the surrounding neighborhoods; 10AI2012\7-10-2012 CUP 11-031 Green & C'--B- I- 9-2- F --)ment Attachment 1.2 Item 13. - 27 H-4 b) incorporate shade trees to shelter pedestrians; c) incorporate the use of enhanced paving materials at the pedestrian crosswalks; d) widen the sidewalks at intersections, where feasible, to minimize the length of pedestrian crossings; e) enhance the connections, where feasible, between the public sidewalk and private commercial interior open spaces/courtyards. The Edinger Avenue street frontage is activated by the Classic Boulevard improvement which includes the development of a 12 feet wide sidewalk, angled parking spaces, decorative boulevard -scale street lights, and the retail building. The building entrances are oriented to the street to encourage a walkable environment and pedestrians are buffered from traffic by new planting strips between the curb and sidewalk. C. Noise Element Objective N 1.4: Minimize noise spillover or encroachment from commercial and industrial land uses into adjoining residential neighborhoods or "noise -sensitive" uses. Policy N 1.5. 1:Require that commercial and residential mixed -use structures minimize the transfer or transmission of noise and vibration from the commercial land use to the residential land use. The design measures used may include: 1) the use of materials which mitigate sound transmission-, or 2) the configuration of interior spaces to minimize sound amplification and transmission. The project, as conditioned, will contain sound attenuating materials within the drying room of the carwash building as recommended in the submitted noise study. As a result, potential noise generated by the use will not exceed existing noise levels and will comply with the City's noise ordinance. The carwash is conditioned to only operate between 7 a.m. and 9 p.m. daily. Future development of residential uses across Gothard Street (Boardwalk site) will be buffered from potential noise by the street and sound attenuation applied to the building. The site plan, floor plans, and elevations received and dated July 2, 2012 shall be the conceptually approved design. 2. Comply with all applicable mitigation measures adopted for the project in conjunction with Environmental Impact Report No. 08-008. 3. Incorporating sustainable or "green" building practices into the design of the proposed structures and associated site improvements is highly encouraged. Sustainable building practices may include (but are not limited to) those recommended by the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Program certification (http://www.usqbc,org/DisplayPage.aspx?Cate.goryiD=19) or Build It Green's Green Building Guidelines and Rating Systems (http://www,builditgreen,oLgLgreen-bLlilding- guidelines -rating). GAPC\NOA\201217-10-2012 CUP 11-031 Green & C'--- '--`--)rnent Attachment 1.3 HB -49' ) - Item 13. - 28 4. Prior to issuance of grading permits, the following shall be completed: a. A sewer study shall be prepared and submitted to Public Works for review and approval. The project is proposing to sewer to the sanitary sewer system on Gothard Street. This system, which flows southerly to Heil Avenue and westerly to Goldenwest where it connects to a 36 inch OCSD trunk line, has been identified as deficient in the ultimate buildout condition of the Beach and Edinger Corridors Specific Plan (BECSP). If the sewer study shows that the proposed project triggers that deficiency, the developer shall be required to upgrade the system per the recommendations of the BECSP and could be reimbursed proportionally as other future contributing developments within the corridor are developed. If the proposed development does not trigger the anticipated deficiency, the developer shall be required to pay their fair-shre portion for the future upgrade of the sewer system. (PW) b. At least 14 days prior to any grading activity, the applicant/developer shall provide notice in writing to property owners of record and tenants of properties immediately adjacent to and across the street within a 500-foot radius of the project site as noticed for the public hearing. The notice shall include a general description of planned grading activities and an estimated timeline for commencement and completion of work and a contact person name with phone number. Prior to issuance of the grading permit, a copy of the notice and list of recipients shall be submitted to the Planning Division. 5. Prior to submittal for building permits, the following shall be completed: a. Zoning entitlement conditions of approval, code requirements identified herein and code requirements identified in separately transmitted memorandum from the Departments of Fire, Public Works, and Building shall be printed verbatim on one of the first three pages of all the working drawing sets used for issuance of building permits (architectural, structural, electrical, mechanical and plumbing) and shall be referenced in the sheet index. The minimum font size utilized for printed text shall be 12 point. b. A reduced copy of the approved site plan and processing fee shall be submitted to the Planning Division for addressing of the new buildings/suites. 6. Prior to issuance of building permits, the following shall be completed: a. The plans shall demonstrate 100% coverage of acoustical treatment (noise abatement) on the interior surfaces of the dryer room of the carwash building pursuant to the noise study submitted June 26, 2012. b. A Landscape Maintenance License Agreement shall be submitted to the Public Works Department to address the continuing maintenance and liability for all landscaping, irrigation, furniture and enhanced hardscape that encroaches into the Edinger Avenue and Gothard Street Rights -of -Way. The agreement shall describe all aspects of maintenance such as enhanced sidewalk cleaning, trash cans, disposal of trash, signs, tree or palm replacement and any other aspect of maintenance that is warranted by the development plan improvements proposed. Item 13. - 29 10A12111W-10-2012 CUP 11-031 Green & Cf IJB -494- Iment Attachment 1.4 The agreement shall state that the property ownership shall be responsible for all costs associated with maintenance, repair, replacement, liability and fees. (PW) c. The property owner/developer shall provide an irrevocable offer to dedicate a reciprocal accessway between the subject site and adjacent westerly property. The design, location, and width of the accessway(s) shall be reviewed and approved by the Planning Division and Public Works Department. Accessway design shall consist of vehicular, pedestrian and bicycle access and landscaping consistent with the Classic Boulevard improvement. In the event the adjacent property west of the subject site develops, pursuant to the development, zoning and design standards of the Beach and Edinger Corridors Specific Plan, the developer and future developer of the adjacent property (if the developer entity is different from the subject property) shall be responsible for making the necessary improvements to implement the reciprocal accessway. The cost of such improvements shall be shared between the developer and future developer as negotiated between the two parties. The legal instrument shall be submitted to the Planning Division a minimum of 30 days prior to building permit issuance. The document shall be approved by the Planning Division and City Attorney as to form and content and, when approved, shall be recorded with the County Recorder prior to final building permit approval. A copy of the recorded document shall be filed with the Planning Division for inclusion in the entitlement file prior to final building permit approval. The recorded agreement shall remain in effect in perpetuity, except as modified or rescinded pursuant to the expressed written approval of the City of Huntington Beach. d. Detailed landscaping plans complying with the Beach and Edinger Corridors Specific Plan shall be submitted to the Planning Division for review and approval, e. The landscaping and ADA access improvements between the westerly property and subject property and between the northerly property and subject property may be allowed, provided that all City regulations are met and the property owner submits a written agreement to remove said improvements when each adjacent property develops. The written agreement shall be approved by the Planning Division and City Attorney as to form and content and, when approved, shall be recorded with the County Recorded prior to final building permit approval. A copy of the recorded agreement shall be filed with the Planning Division for inclusion in the entitlement file prior to final building permit approval. The recorded agreement shall remain in effect in perpetuity, except as modified or rescinded pursuant to the expressed written approval of the City of Huntington Beach. 7. The structure(s) cannot be occupied, the final building permit(s) cannot be approved, and issuance of a Certificate of Occupancy until the following has been completed: a. All improvements are completed in accordance with approved plans, except as provided for by conditions of approval. b. The applicant shall obtain the necessary permits from the South Coast Air Quality Management District and submit a copy to the Planning Division. c. Compliance with all conditions of approval specified herein shall be verified by the Planning Division. G:1PC\NOA\2012\7-10-2012 CUP 11-031 Green & C' HB -4 95- ')ment Attachment 1.5 Item 13. - 30 d. All building spoils, such as unusable lumber, wire, pipe, and other surplus or unusable material, shall be disposed of at an off -site facility equipped to handle them. e. A Certificate of Occupancy must be approved and issued by the Planning and Building Department. 8. Signage shall be reviewed under separate permits and applicable processing. 9. The use shall comply with the following: a. The daily hours of operation shall be limited as follows'. i, Express Carwash: 7.00 a.m. to 9:00 p.m. (including vacuums) ii. Restaurant: 7: 00 a.m. to 2: 00 a.m. Outdoor dining: 7:00 a.m. to 10:00 p.m. iii. Retail: 6:00 a.m. to 12:00 a.m. b. The carwash operators shall require that patrons turn off car radios while in the carwash entrance queue line pursuant to noise study submitted June 26, 2012. c. Signage shall be posted requesting patron cooperation in minimizing car door slams, loud talking, car radios and consideration for residential neighbors, d. Prior to the sale of alcoholic beverages for the restaurant, a copy of the Alcoholic Beverage Control Board (ABC) license, along with any special conditions imposed by the ABC, shall be submitted to the Planning & Building Department for the entitlement file. Any conditions that are more restrictive than those set forth in this approval shall be adhered to. e. The restaurant shall employ a video surveillance security system and a one -month video library. (PD) f. All alcoholic beverages shall be limited to within the interior of the restaurant and the fenced outdoor dining area. (PD) g. The outdoor dining area shall not exceed 400 square feet. h. A protective barrier along the perimeter of the outdoor dining area shall be maintained at all times. (PD) i. A sign shall be clearly posted prohibiting alcoholic beverages outside of the outdoor dining area. (PD) j. Service of alcoholic beverages for off -site consumption shall be prohibited. (PD) k. Dancing and entertainment shall be prohibited unless approved by a conditional use permit. I. The restaurant's use conditions listed herein shall be clearly posted on the premises at all times. 10. The Development Services Departments (Building & Safety, Fire, Planning and Public Works) shall be responsible for ensuring compliance with all applicable code requirements and conditions of approval. The Director of Planning & Building may approve minor amendments to plans and/or conditions of approval as appropriate based on changed 111112\7.10.2012 CUP 11-031 Green & C1--- r)--l-nment Attachment 1.6 Item 13. - 31 HB -496- circumstances, new information or other relevant factors. Any proposed plan/project revisions shall be called out on the plan sets submitted for building permits. Permits shall not be issued until the Development Services Departments have reviewed and approved the proposed changes for conformance with the intent of the Planning Commission's action. If the proposed changes are of a substantial nature, an amendment to the original entitlement reviewed by the Planning Commission may be required pursuant to the provisions of HBZSO Section 241.18. 11. Conditional Use Permit No. 11 -031 shall become null and void unless exercised within two years of the date of final approval by the Planning Commission, or such extension of time as may be granted by the Director pursuant to a written request submitted to the Planning Division a minimum 30 days prior to the expiration date. The owner of the property which is the subject of this project and the project applicant if different from the property owner, and each of their heirs, successors and assigns, shall defend, indemnify and hold harmless the City of Huntington Beach and its agents, officers, and employees from any claim, action or proceedings, liability cost, including attorney's fees and costs against the City or its agents, officers or employees, to attack, set aside, void or annul any approval of the City, including but not limited to any approval granted by the City Council, Planning Commission, or Design Review Board concerning this project. The City shall promptly notify the applicant of any claim, action or proceeding and should cooperate fully in the defense thereof. GAPC\NOA\201217-10-2012 CUP 11 -031 Green& V 1IB -4 , 97- �ment Attachment 1.7 Item 13. - 32