O1503
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CA:RMM:rmd995/hpca
City Council Meeting 11-28-89
Santa Monica, California
ORDINANCE NUMBER l503 teeS)
(City council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA APPROVING THE DEVELOPMENT
AGREEMENT BETWEEN RELIANCE DEVELOPMENT
GROUP, INC. AND THE CITY OF SANTA MONICA
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS
FOLLOWS:
SECTION 1.
The Development Agreement attached hereto as
Exhibit "An and incorporated herein by reference between Reliance
Development Group, Inc., a Delaware corporation, and the city of
Santa Monica, a municipal corporation, is hereby approved.
SECTION 2.
Each and every term and condition of the
Development Agreement approved in section 1 of this Ordinance
shall be and is made a part of the Santa Monica Municipal Code
and any appendices thereto.
The city Council of the City of
Santa Monica finds that public necessity, public convenience, and
general welfare require that any provision of the Santa Monica
Municipal Code or appendices thereto inconsistent with the
provisions of this Development Agreement, to the extent of such
inconsistencies and no further, is hereby repealed or modified to
that extent necessary to make fully effective the provisions of
this Development Agreement.
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SECTION 3 . Any provision of the Santa Monica Municipal
Code or appendices thereto inconsistent with the provisions of
this Ordinance, to the extent of such inconsistencies and no
further, are hereby repealed or modified to that extent necessary
to affect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause,
or phrase of this Ordinance is for any reason held to be invalid
or unconstitutional by a decision of any court of any competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The city council hereby
declares that it would have passed this Ordinance, and each and
every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared
invalid or unconstitutional.
SECTION 5. The Mayor shall sign and the city Clerk shall
attest to the passage of this Ordinance. The City Clerk shall
cause the same to be publ ished once in the official newspaper
within 15 days after its adoption. This Ordinance shall become
effective after 30 days from its adoption.
SECTION 6. This Ordinance and the attached Development
Agreement between ReI iance Development Group, Inc., a Delaware
corporation, and the City of Santa Monica shall be void and of no
further force or effect if, following a referendum petition: (1)
the City Council repeals Resolution Number 7917 (CCS) in lieu of
submitting it to the voters for their approval as provided for in
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Elections Code Section 4055 or (2) a majority of voters voting on
the Resolution fail to approve Resolution Number 7917 (CCS).
APPROVED AS TO FORM:
~~~
ROBERT M. MYERS
city Attorney
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Adopted and approved this 28th day of November, 1989.
f).sa-, Ma::! ~ ~
I hereby certify that the foregoing Ordinance No. 1503(CCS}
was duly and regularly introduced a t a meeting" of the City
Council on the 14th day of November 1989; that the said Ordinance
was thereafter duly adopted at a meeting of the City Council on
the 28th day of November 1989 by the following council vote:
Ayes: Councilmembers:
Abdo, Jennings, Reed, Mayor Zane
Noes: Councilmembers:
Finkel, Genser, Katz
Abstain: Councilmembers:
None
Absent: Councilmembers:
None
ATTEST:
L~
--- ' City Clerk I
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EXHIBIT A
To Ordinance Approv1ng the Development
Agreement Between Reliance Development
Group, Inc. and the City of Santa Monica
DEVELOPMENT AGREEMENT
between
RELIANCE DEVELOPMENT GROUP, INC.
a Delaware corporation
and
lHE CITY OF SANTA MONICA, CALIFORNIA
a municipal corporation
.
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Recording Requested By:
Richard A Lawrence, Esq.
CONTRACT NO. _ (CCS)
When Recorded Return To:
Richard A Lawrence, Esq.
LAWRENCE & HARDING
1250 6th Street, Suite 300
Santa Monica, CA 90401
DEVELOPMENT AGREEMENT
between
REUANCE DEVEWPMENT GROUP, INC.
a Delaware corporation
and
THE CITY OF SANTA MONICA, CALIFORNIA
a municipal corporation
.
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TABLE OF CONTENTS
1.. Defini tions ... II- . III .. . III . .. . , .. .. . , .. .. I , .. .. .. .. . . .. .. . .. . .. . .. .. .. . .. . .. .. .. .. .. .. . .. 3
Accrued IDM Fee ....,............................... III . .. .. . . . .. . .. .. .. .. .. .. . . 3
ACD Amendments ..................................... 3
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Airport Commercial District .............................. 3
Airport Surplus Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ancillary Commercial ................................... 3
Applicable Phase ...........,........................................................ 4
Application Date ...................................... 4
ARB ....................................................... 4
Arts Commission ...................................... 4
At-Grade Footprint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Average Finished Grade ................................. 4
~ Building Height ....................................... 4
Building Pad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CC&Rs ............................................. 4
Certificate of Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CEQA .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Child Care Facility ..................................... 4
Child Care Facility Sublease .............................. 4
City .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
City Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
City Defaults ......................................... 4
City Manager ................. . . . . . . . . . . . . . . . . . . . . . . . . 4
Contingency Date .............. . . . . . . . . . . . . . . . . . . . . . . . . 5
County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CPI ................................................ 5
DDA .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Designated Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Detention Basins ...................................... 5
Developer ........................................... 5
Developer Art ........................................ 5
Developer Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Effective Date ........................................ 5
Effluent ............................................. 5
EIR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Excess Restaurant Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Existing Regulations .................................... 6
FAA ............. ................................. 6
Fast-Food or Take-Out Restaurant ......................... 6
Floor Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Floor Area Ratio or FAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Foreclosure Date ...................................... 8
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General Commercial Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
General Plan ......................................... 8
Ground !..ease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Homeless Assistance Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Impact Fee .. .. . .. .. . .. .. .. .. .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ,. 8
Institutionall..ender .................................... 8
l..a..w .. .. .. .. 01- .. .. .. II It .. .. .. .. . .. .. .. .. ... ... .. .. .. .. . .. .. .. .. .. .. " .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 8
l..easehold Mortgage .................................... 8
!..easehold Mortgagee ................................... 8
ws Angeles Portion ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
LUCE ....................................................,............ II .. ... .. .. .. .. .. ... .. .. .. .. 9
Net Rentable Floor Area ................................ 9
Off-Site Art .........................,........... II .. .. .. .. .. .. .. ,. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 9
Off-Site Traffic Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Parking Ratio Reduction Application . . . . . . . . . . . . . . . . . . . . . . . . 9
Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Planning Commission ................................... 9
Proj ect .. .. .. .. .. .. .. .. .. .. .. .. .. It " .. .. .. ,.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . II .. .. ... .. .. .. .. .. .. .. .. 9
Proj ect Site Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Projected Traffic Impact ................................. 9
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Public Arts Fee ....................................... 9
Recycling System ...................................... 9
Restaurant ........................................... 9
Santa Monica Airport Residual Land . . . . . . . . . . . . . . . . . . . . . . .. 10
Santa Monica Portion ............. . . . . . . . . . . . . . . . . . . . . .. 10
Second Consultant ..................................... 10
Semi-Subterranean Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Senior Leasehold Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Space Sublessee ....................................... 10
Subdivided Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Subsequent Code Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Subterranean Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Subterranean Parking Area ............................... 10
Tandem Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
1D M Consultant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
TDM Fee . . . . . . . . . . . . . . . . . . . . . . . . . .. ................ 11
1D M Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
TOM Program ........................................ 11
TO M Program Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
Test Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
Test Period .......................................... 11
Test Spaces .......................................... 11
Third Consultant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
Water Feature ........................................ 11
Zoning Administrator ................................... 11
Zoning Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
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Description of PrQPf;rty.
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11
3. Descriotion of Proiect. ....................................... 11
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(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1)
4. Uses
(a)
(b)
(c)
Components of Phases ..................................
Maximum Floor Area ................ . . . . . . . . . . . . . . . . . . .
Building Height. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Minimum Setbacks .....................................
Minimum Distance Between Buildings ... . . . . . . . . . . . . . . . . . . . .
Maximum Site Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Access and Circulation ..................................
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14
14
14
15
15
15
I..andscaping .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
Parking .. 01- ... .. .. . .. .. .. . .. ... ... . ... ... .. .. .. ... I . .. ... .. . .. .. .. ... .. . . .. .. .. . . . ... ... ... . .... 16
Pedestrian Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
Administrative and Technical Construction Codes . . . . . . . . . . . . . .. 20
Prohibition of Construction on Los Angeles Portion ............. 20
.. ... .. .. .. ... ... .. ... ... ... It . .. .. .. ... ... II ... .. .. ... . .. ... ... ... ... ... ... II . ... .. .. . .. . .. .. . .. .. It .. ... .. .. . .... 20
Permitted and Prohibited Uses ............................ 20
Sale and Consumption of Alcoholic Beverages. . . . . . . . . . . . . . . . .. 21
Maximum Floor Area Devoted to Uses ...................... 22
5. Phases of Construction_ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
6. Project Mitigation Measur~s. ....... . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
(a) Housing and Parks Impact Mitigation Fee .................... 24
(b) On-Site Child Care Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
(c) Contaminated Soils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
(d) Air Quality During Construction ........................... 27
(e) Security Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
(f) Water Conservation .................................... 27
(g) Impacts on Traffic During Construction ...................... 28
(h) Traffic Demand Management ......................... ... 28
(i) Off-Site Traffic Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34
Cj) On-Site Traffic Improvements ............................. 34
(k) Energy Conservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34
(I) Accessibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35
(m) On-Site Wastewater Recycling System ....................... 35
(n) Non-Discrimination, Affirmative Action and Job Training . . . . . . . .. 41
(0) Noise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
(p) Art. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
( q) Design Standards ...................................... 44
(r) Storm Water Detention Basins ......... '" . . . . . . . . . . . . .. 44
(s) Emergency Features .................................... 44
(u) No Additional Mitigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
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7. General Services Reauirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
(a) Compliance with Requirements ................. . . . . . . . . . .. 45
(b) Building Moratoria and Public Sewer Capacity Allocation . . . . . . . .. 45
(c) Exemption from Moratorium. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
(d) Priority for Sewer Connection Permit. . . . . . . . . . . . . . . . . . . . . . .. 46
8. Changes to Project and Project Site Phm. . . . . . . . . . . . . . . . . . . . . . . . . .. 46
( a) Minor Changes. ....................................... 46
(b) Moderate Changes. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
(c) Major Changes. ....................................... 47
(d) Limitation on Minor and Moderate Changes .................. 47
(e) Procedure for Approving Moderate Change ................... 48
9. Assignment: Binding: Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 49
10. Effect of Agreement on Land Use Reglll~tiom. ................. ... 50
(a) Application of Existing Regulations ......................... 50
(b) Processing and Permit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 50
(c) Inconsistent Code Provisions .............................. 51
(d) Architectural Review Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 51
(e) Special Assessments .................................... 51
11. Certificates of Occu!Jam;y. ......... . . . . . . . . . . . . . . . . . . . . . . . . . . .. 51
12. Permits and ADorovals. ....................................... 51
(a) Issuance of Necessary Permits and Approvals .. . . . . . . . . . . . . . . .. 51
(b) Proprietary Capacity ......................... . . . . . . . . . .. 52
(c) Agreements with Other Agencies . . . . . . . . . . . . . . . . . . . . . . . . . .. 53
13. Periodic Review of COffioliance with AQreement. .................... 53
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(a) Ci ty Review .......................................... 53
(b) Required Findings ..................................... 53
(c) Evidence of Good Faith Compliance ........................ 54
(d) Public Hearing ............ . . . . . . . . . . . . . . . . . . . . . . . . . . .. 54
14. Enforcement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 55
15. Validity of Agreem~nt. ....................................... 55
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16. Default.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 55
(a) Developer Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 55
(b) City Defaults ......................................... 56
17. Procedure Upon D~fault .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 56
(a) Termination by City .................................... 56
(b) Termination by Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 56
(c) Application of Termination ... . . . . . . . . . . . . . . . . . . . . . . . . . . .. 56
(d) Remedies Cumulative ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 56
(e) Cessation of Rights and Obligations . . . . . . . . . . . . . . . . . . . . . . . .. 57
(f) Completion of Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 57
(g) Survival of Obligations .................................. 57
18. Excusable Delavs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 57
19. Noti<;~ of Termination. ....................................... 58
20. Leasehold Mortgagees. ....................................... 58
(a) Notice to Leasehold Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . .. 58
(b) Cure of Default by Leasehold Mortgagee. . . . . . . . . . . . . . . . . . . .. 58
( c) Extension of Time to Cure ............................... 59
(d) Liability of Leasehold Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . .. 59
(e) Subordination of Accrued TDM Fee ........................ 59
21. Duration of AQreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 60
22. Sunersedure bv Subseauent Laws. ............................... 60
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23. Estoooel Certificate. ......................................... 60
24. Recording of Agre~ment. ..................................... 61
25. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
26. Indemnification.. . . . . . . . . . . . . . . . . . . . . . . .. .................. 62
(a) Exculpation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62
(b) Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 63
27. l..ate Pavrnents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64
28. Restriction of New Commercial Office Develooment on Aimort SumIus Parce164
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Entire Ae:reement.
64
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66
66
66
46. FundinQ for Neh!hl,JQrhood Tr~ffi~ Prot~~tion Plan and for Recreation:!l
Improvements to Airport Surplus Parf;~l . . . . . . . . . . . . . . . . . . . . . . . . . .. 66
47. Redesign of Internal Access to Airport. . . . . . . . . . . . . . . . . . . . . . . . . . .. 66
48.
No Oral Modification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Table of Contents and Section Headinp~. ....... . . . . . . . . . . . . . . . . . . .
Severabilitv: Invaliditv of Particular Provision!\. ......................
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No Partnershio or Joint Venture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorneys' F ee~. ............................................
..... ......... ...... ............ ............. ........................
Construction .. .. .. .. .. . .. . .. .. .. .. .. .. . .. .. .. .. .. . . . .. .. . .. .. .. .. .. .. .. ,. . , .. .. .. .. .. .. .. .. .. .. ..
Governin~ Law. ............................................
CountelJ)arts. ..............................................
Citv's Rie:hts to Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Binding Effect. .............................................
Failure to Develop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A1!:reement to Coooerate. .....................................
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No Third Party Beneficiary ....................................
Constitution of F~es .........................................
Sunset Park Neighborhood Traffic Prot~~tion Plan Ac;lOPtiQn . . . . . . . . . . . .
Reauirement to Execute Document~
.. ......~...................... ...............
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into this
day of . 19 ("Effective Date"). between REliANCE DEVELOPMENT
GROUP, INC., a Delaware corporation ("Developer"), and the CITY OF SANTA
MONICA, a municipal corporation organized and existing pursuant to the laws of the State
of California and the Charter of the City of Santa Monica ("City"), with reference to the
following facts:
R E C I TAL S:
A Pursuant to California Government Code Section 65864 et sea. and Santa
Monica Municipal Code Section 9800 et seq., the City is authorized to enter Into binding
development agreements with persons having legal or equitable interests in real property
for the development of such property.
B. ,The City is the legal owner of certain real property ("Santa Monica Airport
Residual Land") approximately 37 acres of which is located in the City of Santa Monica,
California, and approximately 0.83 acres of which is located in the City of Los Angeles,
California, as more particularly described in Exhibit "AI" attached hereto and incorporated
herein by this reference.
C. Pursuant to the Disposition and Development Agreement ("DDA") of even
date herewith between the City and Developer, the City has agreed to ground lease that
portion of the Santa Monica Airport Residual Land particularly described in Exhibit "A2"
which is attached hereto and incorporated herein by this reference ("Property") in Phases
to Developer upon and subject to the tenns and conditions described in the DDA, this
Agreement and the form(s) of ground lease attached as an exhibit to the DDA.
Approximately 25.95 acres of the Property is located in the City of Santa Monica and
approximately 0.83 acres of the Property is located in the City of Los Angeles.
D. Required procedures were initiated under Santa Monica Municipal Code
Section 9413 to amend the text of the Land Use and Circulation Elements ("LUCE") of the
General Plan ("General Plant!) and the Land Use Map of the LUCE to create an Airport
Commercial District ("Airport Commercial District") and to establish property development
standards applicable to the Santa Monica Airport Residual Land (collectively, "ACD
Amendments").
E. The Planning Commission held a duly-noticed public hearing on the ACD
Amendments on September 13, 1989 and recommended adoption of the ACD Amendments
to the Santa Monica City Council ("City Councir') on September 21, 1989. Following a
duly-noticed public hearing, the City Council adopted the ACD Amendments on October
10, 1989.
F. On March 30, 1988, Developer filed with the City an Application for
Development Agreement ("Application"), whIch was "deemed complete" by the City on
April 27, 1988. By the express terms of Ordinance No. 1481(CCS), which imposed a
moratorium on non-residential development in the City of Santa Monica, the provisions of
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that Ordinance do not govern development agreement applications which have been filed
on or before May 2t 1989 and therefore do not govern or apply to the Application filed by
Developer.
G. Developer has paid all necessary costs and fees associated with the Citis
processing of the Application and this Agreement.
H. The City has complied with all procedures required by Government Code
Section 65864 ~t seC!. and Santa Monica Municipal Code Section 9800 ~tseC!. regarding the
processing of the Application and this Agreementt including the following:
(1) The Planning Commission held duly-noticed public hearings on the
Application and this Agreement on November 30, 1988t December 7, 1988 and September
13t 1989 and made its written recommendation to the City Council in accordance with
Santa Monica Municipal Code Section 9812; and
(2) The City Council held a duly-noticed public hearing on the Application
and this Agreement on October 3, 1989. Following completion of the public hearing and
consideration of the recommendation of the Planning Commissiont the City Council
adopted an ordinance on t 1989:
(a) approving the Application and this Agreement;
(b) finding that this Agreement is consistent with the General
Plan;
(c) authorizing the City Manager to execute this Agreement;
and
(d) certifying the final Environmental Impact Report ("EIR")
for the Project and the ACD Amendments.
I. The final EIR certified by the City Council analyzes in detail the significant
environmental effects of all aspects of the proposed development of the Property. In
certifying the final EIR:
(1) The City Council determined that the final EIR has been prepared in
compliance with the California Environmental Quality Act (Public Resources Code Section
21000 et seC!.) ["CEQN'], the State CEQA Guidelinest and the City of Santa Monica
Guidelines for Implementation of CEQ^ adopted by City Council Resolution No.
6694(CCS) on May 24, 1983.
(2) The City Council reviewed and considered the information contained
in the final EIR prior to approving the Application and this Agreement.
J. The City Council has determined that a development agreement is
appropriate for the proposed development of the Property. The Property shall be
developed in up to three (3) phases ("Phases"). The proposed development of the Property
("Project") has been designed to create a common architectural style and theme within each
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Phase of the Project and among the Phases and to ensure relative consistency in the size
and scope of the Phases. The Project incorporates a common infrastructure for the Phases
which is designed to accommodate both the size and design of the entire Project. This
Agreement shall eliminate uncertainty in planning for, and securing orderly development
of, the Project, assure progressive installation of necessary improvements, provide for public
services appropriate to each stage of development of the Project, ensure attainment of the
maximum effective utilization of resources within the City at the least economic cost to its
citizens and otherwise achieve the goals and purposes for which Government Code Section
65864 et se<!. and Santa Monica Municipal Code Section 9800 et seq. were enacted. In
exchange for these benefits to the City, the Developer desires to receive the assurance that
it may proceed with the Project in accordance with existing ordinances, resolutions and
regulations applicable to such developments, subject to the terms and conditions contained
in this Agreement.
K. By entering into this Agreement the City acknowledges that it shall receive
substantial benefits conferred as a result of development of the Property in accordance with
the terms, conditions and obligations of this Agreement without interdicting the right of the
City to act in accordance with its powers, duties and obligations.
NOW THEREFORE, in consideration for the covenants and conditions
hereinafter set forth, the parties hereto do hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms and phrases
shall be interpreted as hereinafter defined, unless the context clearly indicates a contrary
intent of the parties:
Accrued TOM Fee: As defined in Section 20(e).
ACD Amendments: The amendments to the text of the LUCE of the
General Plan and the Land Use Map of the LUCE which were adopted by the City Council
on October 10, 1989 to create the Airport Commercial District and to establish property
development standards applicable to the Airport Commercial District.
Agreement: This Development Agreement entered into between the City and
the Developer as of the Effective Date.
Airport Commercial District: The commercial district created by the ACD
Amendments in which the Project is located.
Airport Surplus Parcel: The real property legally described in Exhibit nA3"
which is attached hereto and incorporated herein by this reference. The Airport Surplus
Parcel is comprised of all portions of the Santa Monica Airport Residual Land other than
the Property. The total area of the Airport Surplus Parcel is approximately 11.05 acres or
approximately 481,435 square feet. The Airport Surplus Property is located entirely within
the City of Santa Monica.
. Commercial: Business machine sales, display and services, drafting
and blueprint services, travel, insurance, real estate and brokerage services, the customer
service area of banks and savings and loans, and related uses.
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ADolicable Phase: As defined in Section 3(i)(v) herein.
ADDlication Date: As defined in Section 3(i)(v)(A) herein.
ARB: As defmed in Section lO(d) herein.
Arts Commission: As defined in Section 6(p )(ii)(B) herein.
At-Grade Footprint: The at-grade perimeter outline of a building or parking
structure based upon the perpendicular projection to the ground of all portions of that
building or parking structure.
Avera~e Finished Grade: The average elevation of the ground level of each
Building Pad after finished grading is complete consistent with the Project Site Plan, as
measured from the highest and lowest points of each Building Pad.
Building Height: The vertical distance of each building or parking structure
measured from the Average Finished Grade of the Building Pad for such building or
parking structure to the highest point of the roof. Measurement of Building Height shall
not include those physical features set forth in Section 3(c).
Buildin~ Pad: For each building or parking structure within the Project, that
portion of the Property covered by the At-Grade Footprint of that building or parking
structure.
CC&Rs: The Declaration of Covenants, Conditions and Restrictions and
Reciprocal Easements for the Project to which the City and the Developer are parties.
Certific~te of Occu!,ancy: A temporary or final certificate of occupancy which
is required to be issued by the City as a condition precedent to the occupancy of a building
or parking structure in the Project.
CEOA: The California Environmental Quality Act (Public Resources Code
Section 21000 ~ seq.)
Child Care Facility: As defined in Section 6(b)(i) herein.
Child Care Facility Sublease: As defined in Section 6(b)(ii) herein.
City: The City of Santa Monica., a municipal corporation, organized and
conducting business pursuant to the laws of the State of California and the Charter of the
City of Santa Monica.
City Council: The City Council of the City of Santa Monica.
City Defau1t~: As defined in Section 16(b) herein.
City Man~ger: The City Manager of the City of Santa Monica.
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Contingency Date: As defined in Section 6(n)(xiii) herein.
County: The County of Los Angeles.
CPI: The United States Department of Labor, Bureau of Labor Statistics
Consumer Price Index for the Los Angeles-Anaheim-Riverside area (Urban Wage Earners
and Clerical Workers, All Items) (1982-84=100). If the CPI format should be revised,
such revised CPI shall be modified, if necessary, by making such adjustments as may be
required to produce substantially equivalent financial results as would have been obtained
by application of the current CPI format. If the CPI should be so revised that such adjust-
ment cannot reasonably be made, or if the CPI shall be discontinued, there shall be sub-
stituted for the CPI a reasonably reliable and comparable index or other information
furnished by a government or independent third party source evaluating changes in the cost
of living or purchasing power of the consumer dollar.
DDA: The Disposition and Development Agreement between City and
Developer dated as of the Effective Date of this Agreement.
Desi~ated Area: The area of the Property established for each building and
parking structure of the Project within which the At-Grade Footprint of that building or
parking structure must be fully situated, as shown by the shaded areas on Drawing 10c of
the Project Site Plan.
Detention Basins: As defined in Section 6(r) herein.
Developer: Reliance Development Group, Inc., a Delaware corporation, and
any and all successors and assigns as authorized or approved under the DDA and the
Ground Leases.
Developer Art: As defined in Section 6(p )(ii)(B).
Developer Def31,Ilts: As defined in Section 16(a) herein.
Effective Date: The date listed in the introductory paragraph of this
Agreement as the date as of which this Agreement was entered into by and between the
City and the Developer.
Effluent: As defined in Section 6(m)(ii) herein.
Em.: The Final Environmental Impact Report for the Project and the ACD
Amendments certified by the City Council on October 10, 1989 as being prepared in
compliance with CEQA, the State CEQA Guidelines, and the City of Santa Monica
Guidelines for Implementation of CEQA, adopted by the City Council Resolution No.
6694 (CCS) on May 24, 1983.
Event of Default: As defined in Section 16 herein.
Excess Restaurant Area: As defined in Section 4(c)(i)(A) herein.
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Existin~ Regulations: The General Plan (including, without limitation, the
LUCE) and any and all codes, ordinances, rules, regulations, standards, specifications and
official policies of the City governing or affecting the development, density, height,
permitted uses, intensity of uses and improvements which are in force and effect as of the
Effective Date of this Agreement (specifically including the ACD Amendments to the
LUCE adopted by the Oty Council on October 10, 1989).
FAA: The Federal Aviation Administration.
Fast-Food or Take-Out Restaurant: A restaurant in which customers
purchase food at a walk-up window or counter and either consume the food on the
restaurant premises within a short period of time, or take the food off the restaurant
premises. A restaurant shall not be considered a Fast-Food or Take-Out Restaurant solely
on the basis of incidental or occasional take-out sales.
Floor Area: The total gross horiwntal areas of all floors of a building or
parking structure below the roof and measured from the interior face of exterior walls, or
a wall separating two abutting buildings or structures.
(i) Floor Area shall specifically include, without limitation,
the following areas occupied by:
(A) useable basements and cellars;
(B) restrooms, lounges, lobbies, kitchens, storage areas,
and interior hallways and corridors;
(C) interior courtyards, atria, paseos, walkways and
corridors covered by a roof or skylight;
(D) at-grade parking covered by a building, structure
or roof; and
(E) above grade parking.
(ii) Floor Area shall specifically exclude the following:
(A) stairways and stairwells;
(B) elevators; elevator shafts and elevator equipment
rooms;
(C) ramps to a subterranean or semi-subterranean
parking structure or ramps between floors of a parking structure, provided
that the ramp is not utilized for the parking of vehicles.
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(D) unenclosed decks, ba1conies~ and platforms which
are not used for commercial or restaurant activity, whether or not covered by
a roof;
(E) exterior courtyards~ arcades~ atria, paseos,
walkways, and corridors which are not used for commercial or restaurant
activity, whether or not covered by a roof;
(F) the volume above interior courtyards~ atria, paseos,
walkwa~ and corridors, whether or not covered by a building structure or
roof;
(G) Subterranean Levels and Semi-Subterranean
Levels devoted exclusively for parking, uses associated with that parking, and
loading and unloading;
(H) at-grade parking not covered by a building,
structqre or roof;
(I) loading docks covered by a roof or canopy, but
otherwise open or unenclosed and used primarily for loading and unloading;
and
(J) mechanical equipment rooms, electrical rooms,
telephone rooms and similar space located below grade.
For purposes of subsections (D) and (E) of this subsection (ii),
the active buying and selling of products or food constitutes "commercial
activity" but the use of exterior areas adjacent to General Commercial Office
space for ancillary office purposes such as balconies does not constitute
"commercial activity".
(Hi) For purposes of Section 3(b)(ii), Floor Area devoted to
at-grade parking covered by a building, structure or roof shall be counted as
two-thirds (2/3) of the actual square footage of Floor Area so utilized if the
following conditions are met:
CA) the floor devoted to at.grade parking does not
exceed ten (10) feet in height;
(B) there is at least one (1) level of Subterranean
Parking Area provided on the Property;
(C) the at-grade and above grade parking levels are
screened from view;
(D) there is no at-grade parking within forty (40) feet
of the front property line for the Property along Bundy Drive; and
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(E) the Architectural Review Board determines that
the design of any building, structure or roof which covers the at-grade parking
is compatible with the other buildings and parking structures in the Project
under the Project Site Plan.
Floor Area Ratio or FAR: The Floor Area of all buildings and parking sttuc.
tures within the Project divided by the square foot area of the Santa Monica Portion of the
Property.
Foreclosure Date: As defined in Section 20(e)
General Commercial Qffice: General offices and related uses, including
cafeterias and dining rooms not open to the general public and designed primarily to serve
the employees and guests of a single Space Sublessee.
General Plan: The comprehensive, long-term General Plan for the physical
development of the City of Santa Monica adopted pursuant to California Government Code
Section 65300 et seq. and Santa Monica Municipal Code Section 9400 et seq. including all
elements of the General Plan.
Ground Lease: A ground lease or ground leases pursuant to the nDA of any
Phase of the Property or portion thereof, by and between City, as landlord, and Developer,
as tenant.
Homeless Assistance Fee: As defined in Section 6(t) herein.
Impact Fee: As defined in Section 6(a)(i) herein.
Institution~l Lender: A foreign or domestic savings and loan association, a
savings bank or trust company, an insurance company, a religious, charitable or educational
institution, a state, municipal or private employees' welfare, pension or retirement fund or
system, investment banking firm or other financial institution, provided that such entity is
subject to, or submits to service of process within, the State of California and has total
assets of at least $200,000,000. Notwithstanding the preceding sentence, no entity in which
the Developer has an ownership interest of more than five percent (5%) shall be an
Institutional Lender.
Law: As defined in Section 22 herein.
Leasehold Mortgage: Any mortgage, deed of trust, pledge, encumbrance or
other security interest granted to an Institutional Lender from time to time encumbering
all or any part of Developer's leasehold estate in the Property.
Leasehold Mortgagee: Any Institutional Lender which holds a Leasehold
Mortgage.
Los Angeles Portion: That portion of the Property which is located within
the City of Los Angeles and which, as of the Effective Date, consists of approximately 0.83
acres or approximately 36.155 square feet of land.
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LUCE: The Land Use and Circulation Elements of the General Plan.
Neillhborhood Traffic Protection Plan: As defined in Section 45 herein.
Net Rentable Floor Area: Floor Area less (i) load bearing walls; (ii) the
amount of Floor Area attributable to parking and uses necessary to operate and maintain
such parking; and (Hi) equipment rooms.
Off-Site Art: As defined in Section 6(p ) (ii)(C) herein.
Off-Site Traffic Improvements: The traffic system, street and intersection
improvements described in Exhibit "D" to this Agreement and specifically designated
therein as "Off-Site Traffic Improvements" and such other traffic system, street and
intersection improvements which may be required by the final, non-appealable judgment
of a court of competent jurisdiction in connection with the development of the Project.
Parking Ratio Reduction Application: As defined in Section 3(i)(v)(A).
Phase: One of the three (3) parts of the Project, as described in Section 3
of this Agreement and shown on the Project Site Plan. Each Phase may be developed at
a different time from the other Phases of the Project pursuant to provisions of the DDA.
Planning Commission: The Planning Commission of the City of Santa
Monica.
Project: The proposed development of the Santa Monica Portion of the
Property as is more particularly described in Section 3 of this Agreement and in the Project
Site Plan.
Project Site Plan: That certain Project Site Plan dated March 11, 1989
[including Drawings 2d, 8d, 9d, and lOd, inclusive] prepared by Kahn Pederson Fox
Associates, P.c. (as the same may be amended from time to time in accordance with the
terms of this Agreement and the DDA) which is attached hereto as Exhibit "B" and
incorporated herein by this reference and which sets forth the basic guidelines and scope
for the development of the Project.
Projected Traffic Impact: As defined in Section 6(h)(v) herein.
Prooertv: As defined in Section 2 herein.
Public Arts Fee: As defined in Section 6(p)(i) herein.
Recycling System: As defined in Section 6(n) herein.
Restaurant: Any building, room., space, or portion thereof, where food is sold
for consumption on-site. A Restaurant does not include Incidental Food Service, as defined
in the Zoning Ordinance in effect as of the Effective Date.
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Santa Monica Airport Residual Land: The real property which is legally
described in Exhibit "AI" hereto, and which has a total area of approximately 37.83 acres
or approximately 1,647,875 square feet. As of the Effective Date, the City of Santa Monica
is the legal owner of the Santa Monica Airport Residual Land. The Santa Monica Residual
Land is entirely comprised of the Property and the Airport Surplus Parcel.
Santa Monica Portion: That portion of the Property which is located within
the City of Santa Monica and which, as of the Effective Date, consists of approximately
25.95 acres or approximately 1,130,382 square feet of land.
Second Consultant: As defmed in Section 6(b)(viii)(B) herein.
Semi~Sllbterranean Lev~l: Any level in a parking structure in which the
height of the finh;hed floor of the level immediately above does not exceed three (3) feet
above the Average Finished Grade of the Building Pad for the parking structure~ except for
openings for ingress and egress.
Senior Leasehold MortQaQe: As defined in Section 20( e) herein.
Space Sublessee: Any person or entity with an express or implied agreement
with the Developer relating to the use or occupancy by such person or entity of any portion
of the buildings and parking structures within the Project. The Developer shall be deemed
to be a Space Sublessee for purposes of this Agreement to the extent that the Developer
occupies space within buildings and parking structures in the Project.
Subdivided Parc~l: As defined in Section 3(i)(ix) herein.
Subsequent Code Changes: As defined in Section 10(a) herein.
Subterranean Level: Any level in a parking structure in which the height of
the finished floor of the level immediately above does not exceed the Average Finished
Grade of the Building Pad for the parking structure, except for openings for ingress and
egress.
Subterranean Parking Area: The total gross horizontal areas of all
Subterranean Levels and Semi-Subterranean Levels designed or devoted for parking and
uses associated with such parking, measured from the interior face of exterior walls~
excluding:
(i) stairways and stairwells;
(ii) elevators. elevator shafts and elevator equipment rooms;
and
(iii) ramps between levels or floors provided that the ramp
is not utilized for the parking of vehicles.
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Sunset Park: As dermed in Section 45 herein.
Tandem Parking: A group of two or more parking spaces arranged one
behind the other where one space blocks access to the other space.
IDM Consultant: As defined in Section 6(h)(vii) herein.
IDM Fee: As defined in Section 6(h)(vi) herein.
TOM ManaQer: As defined in Section 6(h)(i)(A) herein.
TOM PrOlrram: As defined in Section 6(h)(i) herein.
TDM Program Goal: As defined in Section 6(h)(iv) herein.
Test Area: As defined in Section 3(i)(v)(c)(3) herein.
Test Period: As defined in Section 3(i)(v)(c)(1) herein.
Test Soaces: As defined in Section 3(i)(v)(c)(I) herein.
Third Consultant: As defined in Section 6(h)(viii)(C) herein.
Water Feature: As defined in Section 3(h) herein.
Zoning Administrator: The Director of Planning of the City of Santa Monica.
Zoning Or~inanc;~: The City of Santa Monica Comprehensive Land Use and
Zoning Ordinance (Santa Monica MuniCIpal Code Section 9000.1 et seq.) which was
adopted by the City Council on August 9, 1988.
In addition, other terms and phrases defined in this Agreement shall have the meanings
attributed thereto in this Agreement.
2. Description of Property. The Property described in Exhibit rtA2:' hereto which
has a total area of approximately 26.78 acres or approximately 1,166,458 square feet. The
Property is comprised of the Santa Monica Portion and the Los Angeles Portion.
3. Descriotion of Pro1ect.
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(a) Components of Phases. The Project includes all aspects of the
proposed development of the Property as more particularly described herein and in the
Project Site Plan, including the following components:
(i) Phase 1.
(A) "Building I" shall be in Phase 1 of the Project and
shall not exceed 193,215 square feet of Floor Area. Building 1 shall not
exceed six (6) stories and a Building Height of 84 feet. The At-Grade
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Footprint of Building 1 shall be entirely situated within the Designated Area
for Building 1 shown on Drawing lOd of the Project Site Plan.
(B) "Building 2" shall be in Phase 1 of the Project and
shall not exceed 194,480 square feet of Floor Area. Building 2 shall not
exceed six (6) stories and a Building Height of 84 feet. The At-Grade
Footprint of Building 2 shall be entirely situated within the Designated Area
for Building 2 shown on Drawing 10d of the Project Site Plan.
(e) "Building 3" shall be in Phase 1 of the Project and
shall not exceed 4,165 square feet of Floor Area. Building 3 shall not exceed
one (1) story and a Building Height of 35 feet. The At-Grade Footprint of
Building 3 shall be entirely situated within the Designated Area for Building
3 shown on Drawing lOd of the Project Site Plan.
(D) "Building 4" shall be in Phase 1 of the Project and
shall not exceed 9,000 square feet of Floor Area. Building 4 shall not exceed
a Building Height of 27 feet. The At-Grade Footprint of Building 4 shall be
entirely situated within the Designated Area for Building 4 shown on Draw-
ing lOd of the Project Site Plan.
(E) "Parking Structure r' shall be in Phase 1 of the
Project. The structure shall contain approximately 124,980 square feet of
Subterranean Parking Area and shall not exceed 102,802 square feet of Floor
Area at grade and above grade. Parking Structure 1 shall provide not less
than 690 parking spaces. Parking Structure 1 shall not exceed a Building
Height of 37 feet. Parking Structure 1 shall not exceed six (6) levels, which
shall consist of three (3) Subterranean Levels and Semi-Subterranean Levels
and three (3) levels of at-grade or above-grade parking. Roof~top parking is
expressly permitted for Parking Structure 1 and, if utilized, shall be counted
as a parking level. The At-Grade Footprint of Parking Structure 1 shall be
entirely situated within the Designated Area for Parking Structure 1 shown
on Drawing 10d of the Project SIte Plan.
(F) "Parking Structure 2" shall be in Phase 1 of the
Project. The structure shall contain approximately 122,945 square feet of
Subterranean Parking Area and shall not exceed 101,126 square feet of Floor
Area at-grade and above-grade. Parking Structure 2 shall provide not less
than 679 parking spaces. Parking Structure 2 shall not exceed a Building
Height of 42 feet. Parking Structure 2 shall not exceed six (6) levels, which
shall consist of three (3) Subterranean Levels and Semi-Subterranean Levels
and three (3) levels of at-grade and above-grade parking. Roof-top parking
is expressly permitted for Parking Structure 2 and, if utilized, shall be counted
as a parking level. The At-Grade Footprint for the structure shall be entirely
situated within the Designated Area for Parking Structure 2 shown on Draw-
ing 10d of the Project Site Plan.
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(ii) Phase 2.
(A) "Buildings 5,6, and 7" each shall be in Phase 2 of
the Project and shall each not exceed 130,900 square feet of Floor Area per
building. Buildings 5, 6, and 7 shall not exceed six (6) stories and a Building
Height of 84 feet. The At-Grade Footprints of each of these buildings shall
be situated entirely within the Designated Areas for Buildings 5, 6 and 7,
respectively, shown on Drawing 10d of the Project Site Plan. Buildings 5, 6
and 7 shall be designed to be architecturally similar to one another. Buildings
5, 6 and 7 must be aligned with each other on the front of each building (that
side which faces the interior portion of the Property). No alignment is
required on the side of each building which faces the perimeter of the
Property.
(B) "Building 8" shall be in Phase 2 of the Project and
shall not exceed 21,370 square feet of Floor Area. Building 8 shall not
exceed one (1) story and a Building Height of 20 feet. The At-Grade
Footprint of Building 8 shall be entirely situated within the Designated Area
for Building 8 shown on Drawing 10d of the Project Site Plan.
(C) "Parking Structure 4" shall be in Phase 2 of the
Project. Except as otherwise provided in Section 3(i)(v) of this Agreement,
the structure shall contain approximately 201,795 square feet of Subterranean
Parking Area, shall not exceed 251,955 square feet of Floor Area at-grade and
above-grade, and shall provide not less than 1,310 parking spaces. Parking
Structure 4 shall not exceed a Building Height of 37 feet. The parking struc-
ture shall not exceed six (6) levels, which shall consist of three (3) Subter-
ranean Levels and Semi-Subterranean Levels and three (3) levels of at-grade
and above-grade parking. Roof-top parking is expressly permitted for Parking
Structure 4 and, if utilIzed, shall be counted as a parking level. The At-Grade
Footprint of the parking structure shall be entirely situated within the
Designated Area for Parking Structure 4 shown on Drawing 10d of the Project
Si te Plan.
(Hi) Phase 3.
(A) "Building 9" shall be in Phase 3 of the Project
and shall not exceed 164,445 square feet of Floor Area. Building 9 shall not
exceed six (6) stories and a Building Height of 84 feet. The At-Grade
Footprint of Building 9 shall be entirely situated within the Designated Area
for Building 9 shown on Drawing lOd of the Project Site Plan.
(B) "Building 10" shall be in Phase 3 of the Project
and shall not exceed 4,180 square feet of Floor Area. Building 10 shall not
exceed two (2) stories and a Building Height of 46 feet. The At-Grade
Footprint of Building 10 shall be entirely situated within the Designated Area
for Building 10 shown on Drawing lOd of the Project Site Plan.
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(C) "Parking Structure 5" shall be in Phase 3 of the
Project. Parking Structure 5 shall not exceed 196,875 square feet of Floor
Area at grade and above grade. Except as otherwise provided in Section
3(i)(v) of this Agreement, the structure shall provide not less than 597
parking spaces. The parking structure shall not exceed a Building Height of
62 feet. Parking Structure 5 shall not exceed six (6) levels of at-grade or
above-grade parking. Roof-top parking is expressly permitted for Parking
Structure 5 and, if utilized, shall be counted as a parking level. The At-Grade
Footprint of Parking Structure 5 shall be entirely situated within the
Designated Area for Parking Structure 5 shown on Drawing 10d of the Project
Site Plan.
(b) Maximum Floor Area. The total Floor Area of the Project shall
not to exceed:
(i) A Floor Area Ratio of 0.75 times the square foot area of the Santa
Monica Portion (Le., the total Floor Area of the Project shall not exceed 822,000
square feet); and
(ii) an additional Floor Area Ratio of 1.02 times the square
foot area of the Santa Monica Portion only if all of the additional Floor Area
permitted under this subsection (ii) is devoted exclusively to covered at-grade
and above-grade parking and such uses necessary to operate and maintain
such parking (Le., additional aggregate Floor Area attributable to such
parking in the Project shall not exceed 1,256,900 square feet).
(c) Builc;ling Height. The Building Height of each building and parking
structure in the Project shall not exceed the maximum Building Height set forth for each
such building or parking structure in subsection (a). Penthouse or roof structures for the
housing of elevators, stairways, tanks, ventilating fans or similar equipment required to
operate and maintain a building or parking structure, and fire or parapet walls, skylights,
steeples, flagpoles, or other similar structures shall not be included in measuring Building
Height. Such structures shall not exceed fourteen (14) feet above the permitted Building
Height for a building. The Building Heights for any buildings or parking structures in the
Project are subject to approval by the FAA under Federal Aviation Regulations for height
and clearance around the Santa Monica Airport.
(d) Minimum Setbacks. The setbacks of each building or parking structure
listed below from the perimeter of the Property shall not be less than the following
distances:
BuildinQ' Pronertv Boundarv Setback
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1 Bundy Drive 140'
2 Bundy Drive 100 '
3 Bundy Drive 100'
5. 6, 7 North 80'
9 South 100'
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10 South 80'
ParlrinlP Structure 1 North 0'
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Bundy Drive 120'
Parking Structure 2 South 30'
Bundy Drive 35'
Parking Structure 4 South 35'
Parking Structure S North 0'
For the purposes of this subsection (e) the "perimeter- of the Property shall
be based on the legal description of the Property CODtRin~d in Exlnbit 1tA2".
(e) Minimum Distance Between Buildin~s. Notwithstanding the Project
Site PIan, the distances between the buildings listed below shall not be less than the
following distances:
Buildin, to Buildi.Q& Distance
1 2 lOS'
S 6 6f1
6 7 40'
7 8 165'
With respect to Building 9 and Building 10, the distance between such buildings shall not
be less than 40 feet, except at those points in which Building 9 and Building 10 form the
nonhero and southern boundal)' of the Orange Grove Garden, in which case the distance
between such buildings shall be not less than 105 feet.
(f) Maximum Site Covera~e. The aggregate square footage of the
At-Grade Footprints of all buildings and parking structures in the Project shall not exceed
fifty percent (50%) of the total square footage of the Santa Monica Portion.
(g) Access and Circulation. Points of vehicular and
pedestrian ingress and egress to and from the interior of the
Project and the vehicular and pedestrian circulation system within
the Project shall be generally in accordance with the Project Site
Plan. All vehicular ingress and egress to and from the interior
of the project shall be from Bundy Drive, except that emergency
vehicles may points of ingress and egress other than Bundy Drive.
Airport Avenue shall be closed to through traffic following the
date on which the building permit for Building 1 or Building 2 in
Phase 1 is issued, whichever occurs first. As used in this
subsection (9), "through traffic" shall mean (1) any traffic
travelling between Bundy Drive and Walgrove/23rd street whose
destination is not Santa Monica Airport or the Airport Surplus
Parcel ~ (2) any traffic travelling from Walgrove/23rd Street whose
destination is the Airport Residual Landi (3) any traffic
travelling from the Airport Residual Land whose exiting destination
is Walgrove/23rd street. As used in this subsection (g), "through
traffic" shall not include emergency vehicular traffic or traffic
using Airport Avenue to access or exit the Project via Bundy Drive.
All Project-related traffic (including construction-related
traffic) shall access and exit the Project from roads (including
Airport Avenue) leading directly to Bundy Drive.
(h) IAn~s~il\I. The Project shall be fully landscaped in a park-like
manner which shall be substantially in accordance with the landscape plan included as part
of the Project Site Plan and in conformance with the design criteria attached as ExIn"bit "C"
to this Agreement. Landscaping for the Project shall include the use of mature trees and
other landscaping in open space areas within the Project and on the perimeter of the
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Property. Substantial open space shall be provided which shall include courtyards, gardens
and, subject to Section 6(f)(ii). a large. terraced pool of water to be generally situated in
the interior portion of the Property ("Water Feature"). The public shall be afforded access
to the courtyards, gardens and other open areas of the Project subject to reasonable
conditions imposed by the Developer related to maintenance and security. as approved by
the City. which approval shall not be unreasonably withheld or delayed. For the purposes
of this subsection (h), "mature trees" shall mean: (i) for palm trees, trees with between 15
feet and 22 feet of brown trunk:, and (ll) for all other trees, trees with a box size of not
less than 36 inches.2
(i) Parking. Parking for the Project shall be provided as follows:
(i) Except as provided in subsection (v) below, subterranean;
semi-subterranean. at-grade and above-grade parking shall provide a minimum
of 3.3 parking spaces (including standard, compact and tandem spaces) for
each 1,000 square feet of Floor Area developed in the Project pursuant to
this Agreement (exclusive of Floor Area devoted to parking and uses
necessary to operate and maintain such parking).
(ii) Standard size parking spaces shall be at least eight and
one-half (8.5) feet wide by eighteen (18) feet deep. Compact size parking
spaces shall be at least seven and one-half (7.5) feet wide by fifteen (15) feet
deep. Tandem parking spaces shall be at least eight and one-half (8.5) feet
wide by thirty-two (32) feet deep.
(Hi) No more than forty percent (40%) of the parking spaces
provided in any parking structure under this Agreement shall be striped for
compact cars. No more than twenty percent (20%) of the parking spaces
provided in any parking structure under this Agreement shall be tandem
spaces. An attendant shall monitor all areas of a parking structure in which
tandem parking is used from the hours of 8:00 a.m. to 6:00 p.m.
(iv) In the construction of Phase 1 of the Project, Developer
shall be required to construct not less than 3.3 parking spaces per 1,000
square feet of Floor Area developed in Phase 1 (exclusive of Floor Area
devoted to parking and uses necessary to operate and maintain such parking).
(v) With respect to each Phase after Phase 1 (respectively.
the "Applicable Phase"):
(A) Prior to the date that the Developer applies for
a building permit from the City for the construction of the initial buildings
and parking structures to be constructed within the Applicable Phase
("Application Datel1), Developer may elect to apply to the Zoning
Administrator to utilize the parking ratio standard set forth in subsection (B)
rather than the standard set forth in subsection (i) ["Parking Ratio Reduction
Application"].
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(B) Upon approval by the Zoning Administrator of the
Parking Ratio Reduction Application, the Developer shall be required to
construct in the Applicable Phase the number of parking spaces which, when
combined with the number of parking spaces constructed in the Project as of
the Application Date, shall result in an aggregate number of parking spaces
in the Applicable Phase and in all prior developed Phases which is not less
than the ratio of 2.9 parking spaces per 1,000 square feet of Floor Area in
such Phases (exclusive of Floor Area devoted to parking and uses necessary
to operate and maintain such parking).
(C) The Zoning Administrator shall approve the
Parking Ratio Reduction Application of the Developer under subsection (A)
if all of the following conditions are met:
(1) In any Phase of the Project prior to
the Applicable Phase in which the Developer was required to
provide parking at a ratio of not less than 3.3 parking spaces
for each 1,000 square feet of Floor Area in the Phase, the
Developer has, on its own election, withheld from use by
employees or guests of space sublessees or other visitors to the
Project any parking spaces which were constructed in that Phase
in excess of the ratio of 2.9 parking spaces for each 1,000 square
feet of Floor Area in the Phase ('Test Spacesl1). All such spaces
must be withheld from such use for a period of at least one (1)
year prior to the preparation of the parking adequacy analysis
pursuant to subsection (3) (I1Test Period"). The Test Period
shall be deemed to commence upon delivery by the Developer
to the City of a written notice designating the Test Spaces and
advising the City that the Developer has commenced the
withholding of the Test Spaces pursuant to this subsection (1).
The requirement in this subsection (1) shall not apply, however,
to any prior Phase in WhICh certain parking spaces are not
required to be withheld as Test Spaces pursuant to another
Ratio Reduction Application which was approved by the Zoning
Administrator prior to the Application Date.
(2) The Project has met the TOM Goal
under Section 6(h)(iv) for every measured period prior to the
Application Date, based upon the written reports submitted to
the City pursuant to Section 6(h)(vii).
(3) A parking adequacy analysis,
prepared by a consultant selected and employed by the City at
the Developer's request and expense, within ninety (90) days
prior to the Application Date, certifies that the Project has
adequate parking during the Test Period for full occupancy,
assuming that full occupancy of the Project is 95% of Net
Rentable Floor Area constructed in the Project as of the
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Application Date and making appropriate adjustments to the
analysis to the extent that the actual occupancy is less than
95%. The parking adequacy analysis shall contain a
neighborhood parking intrusion analysis which must conclude
that there is no significant problem during the Test Period with
Space Sublessees of the Project and their employees, visitors
and guests parking their vehicles on the adjacent Santa Monica
Airport or in the residential neighborhood south of the Project
bounded by Centinela Avenue on the east, Rose Avenue on the
south, Walgrove Avenue on the west and the Project boundary
on the north ("Test Area").
(4) If the Property has been divided into
one or more legal parcels pursuant to Section 12(a) prior to the
Application Date and the aggregate number of parking spaces
constructed or to be constructed within the boundaries of the
Applicable Phase is less than the ratio of 2.9 parking spaces for
each 1,000 square feet of Floor Area in the Applicable Phase
(exclusive of Floor Area devoted to parking and uses necessary
to operate and maintain such parking), Developer shall execute
and record covenants in form and content reasonably
satisfactory to the City to make permanently available during
the term of this Agreement a sufficient number of reasonably
accessible parking spaces in prior developed Phases which,
when combined with the parking spaces constructed or to be
constructed within the Applicable Phase, results in an aggregate
number of parking spaces which is not less than 2.9 spaces for
each 1,000 square feet of Floor Area in the Applicable Phase
(exclusive of Floor Area devoted to parking and uses necessary
to operate and maintain such parking).
Upon approval of the Parking Ratio Reduction Application for
the Applicable Phase, the Developer shall thereafter have no obligation under
subsection (1) to withhold any parking spaces in the Applicable Phase or any prior
Phase during any Test Period related to a Parking Ratio Reduction ApplIcation
which is filed by the Developer for a subsequent Phase. During any Test Period, the
Developer may offer any of the Test Spaces for use by persons other than employees
or guests of Space Sublessees or other visitors to the Project, provided that such use
shall produce only intermittent traffic and shall not measurably increase peak hour
trips to and from the Project.
(D) If the Developer does not timely file the Parking
Ratio Reduction Application with the Zoning Administrator under subsection
(A) or if all of the conditions set forth in subsection (C) are not satisfied as
of the Application Date, Developer shall be required to construct, in and for
the Applicable Phase, not less than 3.3 parking spaces per 1,000 square feet
of Floor Area developed in the applicable Phase (exclusive of Floor Area
devoted to parking and uses necessary to operate and maintain such parking).
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(E) If the ratio of required parking spaces in an
Applicable Phase is reduced pursuant to this subsection (v), the number of
parking spaces required to be provided in each parking structure to be
constructed in the Applicable Phase under Section 3(a) shall be reduced by
the same percentage as the percentage reduction in that ratio.
(vi) Final layout of, and specifications for, the parking
structures shall be submitted for review and approval of the City's Parking
and Traffic Engineer, which shall not be unreasonably withheld or delayed.
(vii) No at-grade parking area not covered by a roof or
structure shall be permitted on the Property.
(viii) Not less than 12 months nor more than 15 months after
95% of the Net Rentable Floor Area in each Phase of the Project is first
occupied, the Developer shall conduct a survey of the Test Area to determine
the number of Space Sublessees of the Project, and their employees, visitors
and guests who park their vehicles in the Test Area. The Developer shall
provide the City with a written report of the survey within one (1) month
following completion of the survey. If the total number of vehicles parked in
the Test Area by Space Sublessees of the Project and their employees, visitors
and guests exceeds 50% of the total number of vehicles parked in the Test
Area, Developer shall prepare a Parking Intrusion Reduction Plan for
submission to the City Manager for his approval, which shall not be
unreasonably withheld or delayed. The Parking Intrusion Reduction Plan
shall recommend proposals to reduce the number of vehicles parked in the
Test Area by Space Sublessees of the Project and their employees, visitors
and guests to below 50% of the vehicles parked in the Test Area, which
proposals may include Developer working with representatives of the City of
Los Angeles to implement either of the following programs:
(A) Posted time limits for on-street parking in the Test Area.
(B) A preferential parking district in the Test Area
implemented by the standard process of the City of Los Angeles.
(ix) If the Developer applies to divide the Property into one or more
legal parcels pursuant to Section 12(a), the City shall condition the approval of such
application(s) upon either of the following:
(A) the construction within the boundaries of each proposed
subdivided parcel ("SubdIvided Parcel") of an aggregate number of parking spaces
at a ratio which is not less than the parking ratio standard established pursuant to
subsections (i) or (v), as applicable. of each 1,000 square feet of Floor Area 10 the
Subdivided Parcel (exclusive of Floor Area devoted to parking and uses necessary
to operate and maintain such parking); or
(B) if the aggregate number of parking spaces constructed
within the boundaries of the Subdivided Parcel does not meet the condition set forth
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in subsection (A), the Developer shall execute and record covenants in form and
content reasonably satisfactory to the City to make permanently available during the
term of this Agreement a sufficient number of reasonably accessible parking spaces
in parking structures located on portions of the Property other than the Subdivided
Parcel which, when combined with the parking spaces constructed within the
boundaries of the Subdivided Parcel, results in an aggregate number of parking
spaces in a ratio which is not less than the parking ratio established pursuant to
subsections (i) or (v), as applicable, for each 1,000 square feet of Floor Area in the
Subdivided Parcel (exclusive of Floor Area devoted to parking and uses necessary
to operate and maintain such parking).
(j) Pedestrian Acc~SS. The Developer shall provide safe and attractive
pedestrian access between the parking structures and adjacent commercial buildings. The
Project Site Plan may include subterranean connections between any of the buildings and
parking structures and at-grade and above-grade bridge connections between Building 5 and
Building 6 and Building 6 and Buildmg 7, subject to review and approval by the Zoning
Administrator of the height and placement of such bridge connections. which approval shall
not be unreasonably withheld or delayed.
(k) Administrative and Technical Constf\lction Codes. Except as otherwise
specifically provided herein, the Project shall be designed and constructed in compliance
with the Administrative and Technical Construction Codes of the City (Article vrn,
Chapter 1 of the Santa Monica Municipal Code) in effect in the City at the time of any
application by Developer for issuance by the City of a building permit for construction of
any building. parking structure or other improvement in the Project.
(1) Prohibition of Construction on Los Angeles Portion. No portion of the
Project shall be constructed on any part of the Los Angeles Portion, except for access
roadways and landscape/hardscape.
4. Uses.
(a) Permitted and Prohibited Uses.
(i) By the execution of this Agreement, the City specifically
approves, as permitted uses, the use of the Property and Project for General
Commercial Office use, Ancillary Commercial use, child care facilities, retail
use (including, without limitation, art galleries) and Restaurant use (including
Fast Food and Take-Out Restaurants, but excluding Drive-Through or Drive-
In Restaurants, as defined in the Zoning Ordinance), parking and uses
necessary to operate and maintain such parking, other uses associated with
and related to parking which may be approved by the Zoning Administrator,
and any other use permitted under the General Plan for the Airport
Commercial District which the Zoning Administrator deems acceptable for
the District. Such permitted uses shall be consistent with the Existing Regula-
tions, except as modified by this Agreement. Except as otherwise provided
in this Agreement, no City permits or approvals are required to use the
Property and Project for these permitted uses. including without limitation,
a use permit. conditional use permit, performance standard permit, zone
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variance, zone change or any other permit or approval, whether ministerial
or discretionary; provided that conditional use permits shall be required in
connection with the dispensing of alcoholic beverages on the Property
pursuant to subsection (b). Nothing in this subsection (i) is intended, nor
should be construed, to obviate any requirements under codes, ordinances,
rules, regulations or official policies of the City to obtain licenses and permits
in connection with, and as a condition of, the operation of businesses within
the City.
(ii) Prohibited Uses. The use of the Property and the Project for
the following uses is expressly prohibited:
(A) Medical, dental and optometrist offices.
(B) Drive-Through or Drive-In Restaurants as defined in the
Zoning Ordinance.
(C) Any sale of alcoholic beverages, except as expressly
provided under subsection (b).
(D) Liquor stores.
(E) Movie theaters.
(F) Any use not authorized in, or pursuant to, this
Agreement.
(b)
Sale and Consumotion of Alcoholic BeveraQes.
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(i) The City hereby agrees that sale and consumption of
alcoholic beverages is a conditionally permitted use in subleased premises
devoted to Restaurant use in the Project, provided that the sale and
consumption of aIcohohc beverages in such subleased premises is incidental
to the sale and consumption of food. The City agrees to expeditiously review
applications for any conditional use permit(s) authorizing such use upon the
filing by the Developer or a Space Sublessee of an application for such
permits. Such review by the City shall be based upon the rules and
procedures then uniformly in effect in the City. The parties agree that the
sale and consumption of alcoholic beverages in subleased premises devoted
to Restaurant use in the Project is an appropriate use. The purpose of
requiring a conditional use permit for such use is to determine reasonable
conditions as to operations and location which should be applied in
connection with such use.
(ii) The City and the Developer further agree that the
Developer or any Space Sublessee of subleased premises devoted to retail use
in the Project may apply for a conditional use permit for the sale of alcoholic
beverages for consumption either on or off the subleased premises, including
without limitation, containers of beverages, provided that the sale of such
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beverages is incidental to the sale of other food and retail products in those
subleased premises. The City agrees to expeditiously and reasonably review
any such applications based upon the rules and procedures then uniformly in
effect in the City, and to either approve, conditionally approve or deny such
applications based upon those rules and procedures. In its review, the City
may examine and consider whether the proposed sale of alcoholic beverages
for consumption either on or off the subleased premises devoted to retail use
which is incidental to the sale of food and retail products in those subleased
premises should be an appropriate and permitted use in the Project.
(c) Maximum Floor Area Devoted to Uses.
(i) Except as provided in subsection (ii) and in Section 8
below, the Floor Area for the following uses shall not exceed the amounts set
forth below.
(A) Restaurant -- 8,200 square feet of interior and
exterior Floor Area; provided, however, that:
(1) the Developer may, in its discretion,
increase the interior and exterior Floor Area allocated for
Restaurant use above 8,200 square feet to a maximum of 15,000
square feet ("Excess Restaurant Area") under the condition set
forth in subsection (ii); and
(2) if the Developer does not utilize all
or any portion of the permitted 8,200 square feet of interior and
exterior Floor Area for Restaurant use, Developer may, in its
discretion, utilize such square footage for retail use. Any square
footage so utilized by Developer for retail use shall be in
addition to the square footage limits set forth in subsection (B).
(B) Retail, to serve primarily employees and guests of,
or visitors to, the space sublessees of the Project -- 22,000 square feet.
(C) Ancillary Commercial, to serve primarily
employees and guests of, or visitors to, the space sublessees of the Project --
30,000 square feet. In order to utilize any Floor Area for any Ancillary
Commercial use, the Developer must satisfy one of the following conditions:
(1) the Developer must demonstrate
that total peak hour trip rate predicted per 1,000 square feet of
the specifically proposed Ancillary Commercial use (calculated
upon the then current rates published by the Institute of Traffic
Engineers or a comparable index) does not exceed 1.38 (the
rate for General Commercial Office use);
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(2) the Developer satisfies the condition
set forth in subsection (ii); or
(3) the Oty grants discretionary
approval of an application for a change of use permit filed by
the Developer with the City for change of Floor Area from one
permitted use to the specifically proposed Ancillary Commercial
use.
(D) Child Care Facility -- 9.000 square feet.
(E) General Commercial Office and any other use per-
mitted under the General Plan for the Airport Commercial District which the
Zoning Administrator deems acceptable for the District - the maximum Floor
Area permitted for the Project less (1) the amount of the Floor Area actually
utilized for the uses identified in subsections (A) through (C). inclusive. and
(2) any reduction in square footage of Floor Area required under subsection
(ii).
(ii) The Developer may elect to utilize Floor Area in the
Project for Ancillary Commercial use [up to the maximum Floor Area for
Ancillary Commercial use under subsection (i)(C)], even if the total peak
hour trip rate for the particular Ancillary Commercial use would exceed the
peak hour trip rate set forth in subsection (i)(C)(l), or utilize Floor Area in
the Project for Excess Restaurant Area, in each case provided that:
(A) The Developer elects to reduce the total square
footage of permitted General Commercial Office use which may be developed
in the Project under subsection (i) (E) so as to totally offset any increase in
predicted peak hour trips to the Floor Area utilized for Ancillary Commercial
use or Excess Restaurant Area over the trips which would have been
generated had the same Floor Area been utilized for General Commercial
Office use.
(B) The election by the Developer under subsection
(A) must be by written notice from the Developer to the City specifying the
amount of increase in Floor Area of Excess Restaurant Area or Ancillary
Commercial use and the amount of decrease in Floor Area of permitted
General Commercial use. Such written notice must be delivered prior to the
issuance by the City of the first building permit for construction of a building
in the Phase in which the AnciIIary Commercial use or Excess Restaurant
Area is proposed by Developer. If the Developer elects to utilize Floor Area
for Ancillary Commercial Use, the notice shall state the specifically proposed
Ancillary Commercial use and the applicable peak hour trip rate for that
proposed use. The notice shall also specify the Phase in which the required
reduction shall occur and the building or buildings from which the required
reduced Floor Area shall be applied pursuant to subsection (A). Upon
delivery of the written notice to the City under this subsection (B), the
election of the Developer under subsection (A) shall be deemed irrevocable.
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5. Phases of COl1struction. The Project may be developed in up to three (3)
separate Phases in accordance with the DDA and this Agreement. The components of
each of the Phases are generally described in Section 3 of this Agreement and certain
requirements applicable to specified Phases are described elsewhere in this Agreement. If
the Developer fails to commence construction of improvements to any Phase within 13
years following the Effective DateJ the rights of the Developer to further develop such
Phase or subsequent Phases under this Agreement and the DDA may be subject to
termination under the provisions of, and in accordance with, the DDA and any applicable
Ground Lease for such Phase.
6. Project Mitigation Measures. To comply with applicable provisions of the
General Plan and to mitigate specific burdens upon the community resulting from
development of the Project, Developer agrees to provide the following Project mitigation
measures:
(a)
Housing: and Parks Imoact MitiQation Fee.
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(i) Developer shall pay to the City a Housing and Parks
Impact Mitigation Fee ("Impact Fee") in Santa Monica Municipal Code
Sections 9046.1 through 9046.4, inclusive, in effect on the Effective Date.
The Impact Fee shall be calculated as $2.25 per square foot for the first
15,000 square feet of Net Rentable Floor Area utilized for General
Commercial Office space, or Ancillary Commercial space plus $5.00 per
square foot of the remaining Net Rentable Floor Area of any additional
General Commercial Office space or Ancillary Commercial space in excess
of 15,000 square feet. For purposes of this AgreementJ a separate Impact Fee
shall be calculated and paid for each Phase of the Project except that the
$2.25 per square foot rate shall apply only to the first 15,000 square feet of
Net Rentable Floor Area of General Commercial Office space or Ancillary
Commercial Space in the Project. The amount of the Impact Fee due for any
Phase of the Project or portion thereof, shall be based upon the amount of
Net Rentable Floor Area of such space approved in each building permit or
permits issued for such Phase or any portion thereof of the Project. For any
building constructed in Phase 1 of the Project, Developer shall pay the Impact
Fee attributable to that building upon issuance of the building permit for the
building. For any building constructed in Phase 2 or Phase 3, Developer may
elect, in its sole discretion, to either pay the Impact Fee attributable to each
building permit in full prior to, or concurrent with, the issuance of the
building permit by the City or to pay the Impact Fee in the manner specified
in Section 9046.2( d) of tbe Santa Monica Municipal Code in effect on tbe
Effective Date.
(ii) The amount of each portion of the Impact Fee due pur-
suant to this Agreement shall be increased by the same percentage as the
percentage increase in CPI as of the second full month preceding the date of
payment over the CPI as of October 1984.
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(b) On-Site Child Care Facilitv.
(i) Developer shall design and construct an on-site infant
and child care facility in the Project (ItChild Care Facility"). The Child Care
Facility shall be designed for occupancy by one hundred (100) children in
accordance with the interior and exterior space requirements established in
Title 22 of the California Code of Regulations in effect as of the date of the
issuance of the building permit for construction of the Child Care Facility.
The Child Care F acili ty shall also be designed so as to provide adequate
space for vehicular movements for drop-off and pick-up of children which
shall be approved by the City's Parking and Traffic Engineer and the Zoning
Adtrlinl5;.trator prior to the issuance by the City of any building permit for the
Child Care Facility or any building in which the Child Care Facility may be
contained. Such approval shall not be unreasonably withheld or delayed by
the City. Developer shall also initially equip the Child Care Facility
comparable to other high quality child care centers in the City, which shall
consist of finished interior space and generallightmg and bathroom fixtures
(but not including interior furnishings), finished indoor and outdoor storage,
kitchen, office space, landscaping, outdoor play structures and washer/dryer
hookup facilities. The Child Care Facility shall be located by the Developer
in Building 4 in Phase 1 or at such other location in Phase 1 which may be
selected by the Developer and approved by the City, which approval shall
not be unreasonably withheld or delayed. Construction of the Child Care
Facility shall be completed and possession of the Child Care Facility shall be
delivered to the City for occupancy and operation pursuant to the sublease
which is the subject of subsection (H) within four (4) months after the date
of issuance of a Certificate of Occupancy for Building 1 or Building 2,
whichever occurs first, subject, however, to excusable delays as set forth in
Section 18.
(ii) Developer shall either sublease or assign (as determined
by Developer in its reasonable discretion) the Child Care Facility to the City
under the terms and conditions set forth in the written sublease or
assignment, dated as of the date of the Ground Lease for Phase 1 or the
legally subdivided parcel in Phase 1 in which the Child Care Facility shall be
located, between the Developer and the City ("Child Care Facility Sublease").
The term of the Child Care Facility Sublease shall commence upon delivery
of possession of the Child Care Facility to the City by the Developer pursuant
to subsection (i) and shall terminate upon expiration of the Ground Lease for
Phase 1 or the legally subdivided parcel in Phase 1 in which the Child Care
Facility is located. The Child Care Facility Sublease shall provide for an
annual rental rate of One Dollar ($1.00) during the term of the Sublease.
The Child Care Facility Sublease shall not be terminable by the Developer.
(Hi) The City shall use good faith reasonable efforts to select
the initial qualified operator for the Child Care Facility and to replace any
operator of the Child Care Facility during the term of the Child Care Facility
Sublease upon expiration or termination of the operating agreement between
the City and the operator. The operation of the Child Care Facility shall be
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in a manner comparable to other high quality child care centers in the City.
In no event shall the Child Care Facility be operated without a qualified
operator or in the absence of any valid operational licenses and approvals
required by the State of California and other applicable governmental
agencies. Developer shall have no obligation to operate, manage or supervise
the Child Care Facility or to locate, select, supervise or replace the operator.
The Child Care Facility shall be operated on business days during the term
of this Agreement except (A) if a qualified operator is not available, (B) for
circumstances or events outside of the reasonable control of the City
(including without limitation the Oty's inability to fmd a qualified operator
to operate the Child Care Facility on economic and other terms acceptable
to the City) or (C) as may otherwise be provided in this Agreement.
(iv) The Developer shall have the right to review and approve
(which approval shall not be umeasonably withheld or delayed) the insurance
requirements imposed by the Oty on the operator of the Child Care Facility
in the operating agreement between the City and the operator, which
insurance, at a minimum, shall include comprehensive general liability
insurance against claims for bodily injury, personal injury or death and
property damage occurring upon, in, or about, the Child Care Facility or
arising in connection with the operations thereof, in an amount and type
which is comparable to insurance coverage maintained by operators of high
quality child care centers in the City.
(v) Developer shall pay to the CIty an annual fee which shall
be utilized by the City in connection with the implementation and operation
of a program under which the child care services at the Child Care Facility
shall be made available to families demonstrating financial need. This annual
fee shall be due and payable for each twelve (12) month period during the
term of the Child Care Facility Sublease in which the Child Care Facility is
operated and maintained in the manner set forth in subsection (iii), beginning
on the date on which the Child Care Facility commences operations and
thereafter on each anniversary thereof. The initial annual fee shall be Twenty
Thousand Dollars ($20,000), prorated for any partial twelve (12) month
period. The annual fee shall be increased and compounded annually at the
rate of four percent (4%) per annum for the first thirty (30) years of the term
of the Child Care Facility Sublease. For the balance of the term of the Child
Care Facility Sublease, the annual fee shall be increased annually by a simple
interest factor of four percent (4%), which shall not be compounded.
(vi) No less than fifty percent (50%) of the capacity of the
Child Care Facility shall be allocated on a priority basis for infants and
children whose parents work in businesses which are Space Sublessees within
the Project and no less than twenty-five percent (25%) of the capacity shall
be allocated on a priority basis for infants and children of parents who reside
within the area bounded by Pearl Street on the north, Palms Boulevard on
the south, 23rd Street/Walgrove Avenue on the west and Barrington Drive
on the east. The balance of the capacity of the Child Care Facility and any
unused priority allocations shall be allocated in the discretion of the operator
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of the Child Care Facilityt provided that the City can require the operator to
reserve up to twenty-five percent (25%) of the capacity of the Child. Care
Facility for children and infants whose father or mother is a City employee
or City resident.
(c) .. . Contaminated soil on the Property in each Phase
shall be treated on-site or removed and disposed of in accordance with all applicable laws,
ordinances and regulations of the City, State of California and federal government prior to
issuance of any building permit for development within such Phase. The respective rights
and responsibilities of the City and the Developer for treatment, removal and disposal of
contaminated soil on the Property shall be governed by the DDA and the Ground Leases
(d) Air Ouality During Construction. Equipment engines shall be kept in
proper tune to reduce exhaust emissions. Such equipment shall not be operated during first
or second~stage smog alerts within the Northwest Coastal area as identified by the South
Coast Air Quality Management District, or if such designation ceases to existt another area
of similar size and location. During excavation, the construction area on the Property shall
be watered at least twice daily to prevent excessive dust, and watering shall be increased
during periods that wind speeds exceed 15 miles per hour. Mud and dirt shall be removed
from the surrounding streets and publicly used sidewalks on a daily basis.
(e) Security Services. The Developer shall design the Project in a manner
that maximizes public surveillance of public areas of the Project and minimizes recessed or
hidden areas where criminal activity can occur. Developer shall operate, contract for, or
otherwise provide private security services for those Phases of the Project which have been
ground leased to the Developer. Such security services shall be consistent with services
provided at other first-class office buildings. Prior to issuance of the Certificate of
Occupancy for any building or parking structure in such Phases, Developer shall submit for
the review and approval of the Chief of Police of the Cityt which approval shall not be
unreasonably withheld or delayed, a plan for security lighting and security services for that
Phase of the Project. The Developer shall have the right to appeal to the City Manager
any decision, action or inaction of the Chief of Police of the City in the review, approval
or disapproval of the plan submitted by the Developer. Any decision of the City Manager
shall be final. Security lighting shall be shielded and directed away from residential
property near the Project.
(f) Water Conservation. Developer shall prepare a water conservation
program for the Project for submission to the City for its review and approval, which shall
not be unreasonably withheld or delayed. The water conservation program shall include
the following components:
(i) Automatic sprinklers shall be set to water landscaping
only during evening and early morning hours to reduce excessive water
requirements due to water loss by evaporation.
(ii) Project design shall incorporate measures to allow the
use of: (A) storm drain water, as permitted or approved by applicable
governmental agenciest (B) recirculated water, or (C) other systems
acceptable to the Department of General Services of the City, for the purpose
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of maintaining the level of water in the Water Feature of the Project. Not
less than fifty percent (50%) of the water requirements of the water feature
depicted in the Project Site Plan shall be met by non-potable water, provided
that the Recycling System, as defined in Section 6{m), is installed on the
Property. If the Recycling System is not installed on the Property, and other
sources of non-potable water cannot be obtained by the Developer without
material cost or delay, the Developer can elect to modify or eliminate the
Water Feature depicted on the Project Site Plan. In the event of such a
modification or elimination of the Water Feature, the Developer shall submit
for review and approval of the Architectural Review Board an alternative
landscaping plan for any area of the Property previously covered by the water
feature on the Project Site Plan.
(iii) Ultra-low water use plumbing fixtures or such other
fixtures acceptable to the City's Department of General Services shall be
used.
(iv) To the extent feasible and consistent with the water
reclamation needs of the Project, landscaping shall consist primarily of
drought-resistant plants and the landscaping plans shall be subject to the
approval of the Director of the City's Department of General Services as to
the water conservation features of such landscaping, which approval shall not
be unreasonably withheld or delayed.
(g) Impacts on Traffic During: Construction. Developer shall maintain a
staging area on the Property for use by construction firms and vehicles and shall design
traffic patterns for construction vehicles, both on-site and off-site, in order to minimize the
impact of construction activities on adjacent streets and the Santa Monica Municipal
Airport. Developer shall cooperate with the City's Department of General Services in
order to develop other mutually acceptable means for minimizing such impact.
(h) Traffic Demand Manal!ement.
(i) Developer shall prepare and submit to the City for
approval by the City Manager prior to the issuance of any certificate of
occupancy for any building within Phase 1 of the Project a Traffic Demand
Management Program ('TOM Program") designed to actively encourage and
promote among the Space Sublessees of the Project measures to reduce the
traffic to and from the Project. The TOM Program shall include, at a mini-
mum:
(A) One qualified employee ("lDM Manager") of the
Project whose primary responsibility shall be to promote and manage the
TOM Program. A qualified person shall be employed for this purpose
throughout the term of this Agreement.
(B) Compilation and distnbution of ride-share lists and
computer scheduling of carpools and van-pools for aU employees of Space
Sublessees in the Project.
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(C) Staggered hours or "flextime" among different
Space Sublessees and/or within divisions or departments of larger Space
Sublessees.
(D) Reduced parking rates and designated parking in
preferred locations for car-pools and van-pools.
(E) A reduced-fare public trSln!i:it program in which
bus tokens for the Santa Monica Municipal Bus Line and Southern California
Rapid Transit District are made available on demand for travel to and from
the Project for up to 350 persons who are employed by Space Sublessees
within the Project at a price not more than fifty percent (50%) of the price
normally available to the public.
(F) Use of public transit facilities, including: (1)
actively working with the Santa Monica Municipal Bus Line and the Southern
California Rapid Transit District or their respective designees to improve
service to and from the Project, and (2) actively coordinating with existing
companies providing van or bus service to Los Angeles International Airport
to include the Project as a regular stop along their routes in Santa Monica.
(G) Readily available bicycle parking areas with
adequate facilities for secure parking of bicycles.
(H) In addition to the required elements of the TOM
Program which are set forth in subsection (i), Developer may elect to include
as a component of the TDM Program other measures that Developer
determines may reduce traffic impacts of the Project (e.g. -- vans and
employee shuttles to major transportation points).
(Hi) Developer shall be entitled to substitute other measures
to reduce traffic impacts for those described in subsection (i) or otherwise
contained in the approved TDM Program upon approval of the City Manager
following submission by the Developer of documentation to the City Manager
demonstrating that said substitute measure is at least as effective as the
measure it is proposed to replace. Developer shall also be entitled to delete
any required or approved TOM measures upon approval of the City Manager
following submission by the Developer of documentation to the Oty Manager
demonstrating that such measure does not effectively reduce traffic impact.
(iv) The TDM Program shall contain a goal of reducing
actual vehicle trips going to and from the Project during the peak traffic
periods occurring between 6:00 a.m. and 8:00 a.m. and between 4:00 p.m. and
6:00 p.m. to an amount which would be no more than eighty.five percent
(85%) of the peak hour trips which would be predicted to be generated
without a lDM Program from the General Commercial Office use and
ninety-five percent (95%) of the predicted peak hour trips from other uses
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("TOM Program Goal'l Developer shall, in good faith, comply with the
IDM Program to achieve the established performance goal.
(v) The trips generated by the Project which would be
predicted if no TOM Program were implemented f'Projected Traffic Impact")
shall be determined by multiplying the total Floor Area in the Project of each
of the uses listed below for which a Certificate of Occupancy has been issued
as of the time of the annual report under subsection (vi) below, by the trip
generation factor listed below, and then adding the products of such
calculations.
Use
Projected
Vehicle Trips (vt)
per 1,000 sq. ft.
of Floor Area
Child Care Facility
1.38 vtJhour
2.84 vt/hour
3.73 vt/hour
6.44 vt/hour
General Commercial Office
Retail
Restaurant
The Vehicle Trips rate for Ancillary Commercial use shall be
based upon the rates established by the Institute of Traffic Engineers or a
comparable index for each particular use which constitutes an Ancillary
Commercial use.
(vi) As an additional impact mitigation, Developer shall pay to the
City an annual fee ("TDM Fee") for each Phase in the Project for which a
Ground Lease or Ground Leases between the City and the Developer has
been in full force and effect as of one (1) year prior to the date on which the
TOM Fee is due and payable. The TOM Fee for each Phase shall be
calculated as follows:
$176,400 x
Total Floor Area of Buildings
(other than Parking Structures) in
the Phase for which Certificate(s)
of Occupancy have been issued
822,000
Except as adjusted for intervening changes in the CPI as provided in this
subsection (vi), the TOM Fee shall not exceed One Hundred Seventy-Six
Thousand Four Hundred Dollars ($176,400). The TOM Fee shall be due and
payable within forty-five (45) days after the date on which the annual report
described in subsection (vii) below is due. The TOM Fee shall be adjusted
by the intervening changes in the CPI between the date on which the first
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annual report described in subsection (vii) below is due and the date on
which the then applicable annual report is due. Developer shall receive a
credit against the TOM Fee in each year for which the actual vehicle trips
generated to and from the Project are below the Projected Traffic Impact.
The credit shall be determined annually by multiplying the TDM Fee, as ad-
justed, by a fraction, the numerator of which is the Projected Traffic Impact
expected to be generated by the Project less the number of actual vehicle
trips generated by the Project, and the denominator of which is the Projected
Traffic Impact less the TOM Program Goal. The credit earned in any year
shall apply to that year only and shall not exceed the amount of the TDM
Fee under any circumstances. For purposes of example only, assume that
the maximum permitted project size is 822,000 square feet and that at the
time that the first annual TDM report is due, Ground Leases for two (2)
Phases of the Project between the City and the Developer have been in effect
for at least one (1) year and that Certificates of Occupancy have been issued
for buildings in those Phases which contain an aggregate of 411,000 square
feet of Floor Area. The TDM Fee would be Eighty-Eight Thousand Two
Hundred Dollars ($88,200) [$176,400 x 1/2 (411,000/822,000)]. Assume
further that the Project has 3,000 square feet of Restaurant, 8,000 square feet
of retail and 400,000 square feet of General Commercial Office. The
Projected Traffic Impact would be 586 vt/hour [(400 x 1.38) + (3 x 3.73) +
(8 x 2.84)]. The TOM Program Goal would be 501 vt/hour [(400 x 1.38 x
.85) + (3 x 3.73 x .95) + (8 x 2.84 x .95)]. If the annual report pursuant to
subsection (vii) determined that the Project generated 586 vt/hour or more,
the entire TDM Fee of $88,200 would be due for that year. If the annual
report determined that the Project generated 543.5 vt/hour, the TDM Fee
would be credited by 50% [(586- 543.5) divided by (586 - 501) = 42.5/85 =
.50 of the TDM Fee] resulting in a net TDM Fee of $44,100. If the annual
report determined that the Project generated 501 vt/hour or less, the TOM
Goal would be met and a credit against the entire IDM Fee for that year,
but no more, would arise.
(vii) During the term of this Agreement, City shall employ,
at the Developer's expense, a qualified traffic engineering consultant ("TOM
Consultant") to prepare and submit to the City Manager a report on the
effectiveness of the TDM Program and compliance with the TOM Program
Goal. The City shall obtain at least three (3) written proposals from qualified
consultants to prepare each report and shall select as the TDM Consultant
the consultant who has submitted the lowest responsible proposal unless the
City and Developer shall mutually agree to the contrary. The report of the
TDM Consultant shall be submitted not less than 120 days after Space
Sublessees have occupied Dot less than fifty percent (50%) of the Floor Area
of Phase 1 of the Project (exclusive of parking and uses necessary to operate
and maintain such parking), and thereafter on an annual basis. Developer
shall provide to the TOM Consultant any information requested by the TOM
Consultant which is reasonably necessary to prepare each such report. Such
report shall include a description of the mechanisms employed to reduce
traffic, an evaluation of the effectiveness of those mechanisms, recommenda-
tions for changes or improvements to the TOM Progra~ determination of
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the actual peak hour vehicle trips generated by the Project. and calculation
of the TDM Fee. if any. which would be payable according to the formula set
forth in subsection (vi). The TOM Consultant shall utilize methodology
commonly utilized by competent traffic engineering professionals in the
preparation of the written report.
(viii) If Developer disputes the determination of the actual
peak hour trips generated by the Project or the calculation of the TOM Fee
in the written report prepared by the TDM Consultant, the Developer may
contest such conclusions only upon compliance with the following procedures.
which procedures are not intended to be, and should not be construed as,
arbitration between the City and the Developer:
(A) Within the time period required to pay the TOM
Fee. the Developer shall file with the City a written protest indicating that it
disputes the determination of actual peak hour trips generated by the Project
and the calculation of the IDM Fee. Along with the filing of the written
protest, the Developer shall deposit with the City Treasurer of the City the
amount of the TOM Fee calculated in the written report prepared by the
TDM Consultant.
(B) Within fifteen (15) days following the filing of the
written protest, the Developer shall employ, at Developer's expense, a
qualified traffic engineering consultant f'Second Consultant") to prepare a
separate independent report to determine the actual peak hour trips
generated by the Project, utilizing methodology utilized by competent traffic
engineering professionals, and to calculate the TOM Fee. Within thirty (30)
days following delivery to the City of the written report prepared by the
Second Consultant, the TOM Consultant and the Second Consultant shall
meet and confer and attempt to agree on the number of actual peak hour
trips generated by the Project and the calculation of the IDM Fee. If the
TOM Consultant and the Second Consultant agree on these matters within
the thirty (30) day period, their mutual determination shall prevail.
(C) If the roM Consultant and the Second Consultant
do not reach an agreement on these matters within the thirty (30) day period,
the IDM Consultant and the Second Consultant shall have fifteen (15) days
to appoint a third qualified traffic consultant ("Third Consultant"). The cost
of the Third Consultant shall be borne equally by the City and the Developer.
If, the TOM Consultant and the Second Consultant fail to appoint the Third
Consultant within said fifteen (15) day period, either the City or the
Developer shall be entitled to apply to the Presiding Judge of the Superior
Court of the County of Los Angeles, California for the selection of the Third
Consultant who shall be chosen from a list of names of experienced traffic
consultants submitted by the City or from a list of names of experienced
traffic consultants submitted by the Developer as the case may be, unless both
the Oty and the Developer submit lists of names, in which case the Court,
in its sole discretion, shall select the Third Consultant from either list. Within
thirty (30) days following the appointment of the Third Consultant, the Third
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Consultant shall review the respective written reports prepared by the TDM
Consultant and the Second Consultant and shall issue a written opinion as to
which of those consultant's report most closely determines the actual peak
hour trips generated by the Project. The trip generation figure in the report
so selected by the Third Consultant shall be the figure utilized in the formula
set forth in subsection (vi) for computation of the TOM Fee. The decision
of the Third Consultant shall be final and binding upon the parties.
(D) In the event that the TDM Fee recalculated
utilizing the actual trip generation figure in the written report selected by the
Third Consultant is less than the TOM Fee deposited by the Developer with
the City pursuant to subsection (A), the City shall refund the excess amount
of the deposited TDM Fee to the Developer within fifteen (15) days following
delivery of the written opinion of the Third Consultant to the City. If the
roM Fee, pursuant to said recalculation, is greater than the amount of the
deposited TDM Fee under subsection (A), the Developer shall pay the
amount of the deficiency to the City within fifteen (15) days following delivery
of the written opinion of the Third Consultant to the Developer.
(ix) Nothing in this Agreement shall exempt any Space
Sublessee within the Project from complying with any "traffic system
management ordinance" adopted by the City Council after the Effective Date
so long as such ordinance:
(A) is umformly applicable to all similar uses
throughout a reasonably defined geographical area of the City, which shall,
at a minimum, include all comparable projects located in the Special Office
District (or if the Special Office District is eliminated, a district of the City
which is substantially equivalent), as well as the Airport Commercial District,
and
(B) if a distinction is made between "new" or "propos-
ed" development and "existing" development, the entire Project (including
Phases which have not then been ground leased to the Developer and
portions of ground leased Phases on which construction has not commenced)
shall be considered as "existing development".
A "traffic system management ordinance" shall be an ordinance
which adopts measures intended to reduce the number of vehicle trips at peak
traffic hours through the encouragement of ride-sharing, van-pools, use of
public transportation, shuttle services, and other similar means. In the event
of a conflict between such traffic system management ordinance and the
provisions of Section 6(h) of this Agreement, the former shall prevail unless
the parties mutually agree otherwise.
(x) Developer shall provide in each Space Sublease for any
portion of the Project, that each Space Sublessee shall undertake to cooperate
and participate in the TDM Program and establish procedures for the
employees of each Space Sublessee to be identified to the TOM Manager
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with such information as shall enable the TOM Manager to assist all
employees of such Space Sublessees in alternative forms of tran"portation to
the Project. [n the event that Developer shall be deemed a Space Sublessee
pursuant to the definition set forth in Section 1 of this Agreement, Developer
shall cooperate and participate in the IDM Program and shall similarly
provide such information to the TOM Manager.
(xi) No service deliveries shall be allowed between the hours
of 6:00 a.m. and 8:00 a.m. and between 4:00 p.m. to 6:00 p.rn. on any day
other than a Saturday, Sunday or holiday, except for messenger or courier
services, delivery of furniture or furnishings and deliveries during periods of
construction of improvements in the Project.
(i) Off-Site Traffic Improvements. In connection with the development
by the Developer of each Phase of the Project, the Off-Site Traffic Improvements for such
Phase shall be performed in accordance with the provisions of Exhibit "E" which is attached
to this Agreement and incorporated by this reference.
(j) On-Site Traffic Imorovements. In connection with the development
by the Developer of each Phase of the Project, Developer, at its sole expense, shall
perfor~ or cause to be performed, all on-site traffic, access and circulation system
improvements reflected on the Project Site Plan for such Phase. All such improvements
shall be designed and constructed in accordance with the standards, requirements and
common practices generally employed by the City.
(k) Energy Conservation. Each building in the Project shall comply with
all provisions of Title 24 of the California Code of Regulations relating to energy conserva-
tion and shall include as a minimum the following features:
(i) All air conditioning and other mechanical equipment and
motors shall be started and stopped from the system console and water and
air temperatures can be remotely reset. The foregoing, in conjunction with
remote sensing of outside conditions and of inside conditions on a sampling
basis, shall permit system operation refinements resulting in energy
optimization and shall prevent unnecessary energy consumption during
business and non-business hours. This system shall also be used to control
the use of lighting.
(ii) An economizer or "free cooling" cycle shall be used which
shall enable the use of outdoor air rather than mechanically refrigerated air
whenever outside temperature permits. Variable volume air distribution
systems shall allow air supply quantities to be reduced as cooling loads
decrease resulting in reduced fan power consumption at reduced loads. Air
supply to periodically unoccupied areas, such as conference rooms, shall be
minimized. Low pressure air distribution systems shall be utilized to minimize
fan horse-power. Cold plenum temperature at air conditioning units shall
be reset automatically to a higher temperature when air conditions warrant
with resultant energy savings.
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(iii) High efficiency fluorescent land/ballast lighting systems
shall be used to minimize energy consumption. Maximum provisions for local
light switching shall be provided to permit use of lighting only when space is
occupied. Photo cell control lighting in exterior areas shaU be provided.
Exterior and certain operational lighting shall be controlled from the energy
management system to optimize operation and minimize energy consumption.
Where decor or function dictate the use of incandescent or tungsten halide
lighting, extension control equipment shall be provided to optimize operation
and increase lamp life.
(iv) High efficiency roof and wall insulation as well as heat
absorbing glass shall be utilized to reduce cooling and heating loads. All air
supply ducts shall be insulated to reduce energy losses to air-conditioned
spaces. Hot water piping and storage tanks shall be fully insulated.
Water-saving flush valves shall be provided for toilet fixtures. Interior shading
of windows shall be incorporated where appropriate to further reduce air
conditioning requirements.
(v) The Developer shall be entitled to substitute other energy
management measures in the Project for those described above upon
submission of an application to the City Building and Safety Division demon-
strating to the Division's reasonable satisfaction that said substitutIon is at
least as energy efficient as the measure it is proposed to replace. The
Developer's application shall state the specific substitution being proposed
and attach such plans, specifications and supporting materials as may be
reasonably required by the City Building and Safety Division to demonstrate
the appropriateness of the substitution.
(1) The Project, including all areas available for public use,
shall be accessible to handicapped persons in accordance with Title 24 of the California
Code of Regulations.
(m) On-Site Wastewater RecvclinQ Svstem.
(i) The Developer shall install and operate on the Property
at all times during the term of this Agreement (except for periods of repairs,
emergencies and required maintenance) a system of comparable quality and
price to the Cycle-let Wastewater Recycling System manufactured by
Thetford, Inc. which must be reasonably acceptable to the City's Department
of General Services and which shall be designed to clean and recirculate all
wastewater and other material from sinks, drinking fountains, toilets and other
similar sources in the Project ("Recycling System") if either:
(A) The Developer voluntarily elects to utilize the
Recycling System; or
(B) The City requires the installation of the Recycling
System upon written notice to the Developer within 120 days following the
Effective Date. Developer agrees to provide the City with written notice of
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the last day of this 120 period no less than ten (to) days nor more than thirty
(30) days prior to the end of that period. In the event that the Developer
fails to timely provide such notice to the City~ the rights of the City to require
installation of the Recycling System under this subsection (B) shall be
extended until ten (10) days after delivery of such notice.
(ii) Subject to any necessary approvals by the County and any
other applicable governmental entityJ the cleaned and recirculated wastewater
("effluent") from the Recycling System shall be used for the uses set forth
below in the following priorities:
(A) First~ for irrigation of landscaping in the Project.
(B) Then, for use in the Water Feature in the interior
of the Project.
(C) Then, for irrigation oflandscaping at Clover ParkJ
the Airport Surplus Parcel, or, subject to City approval, other City-owned
property in the immediate vicinity of the Project. The costs to connect the
Recycling System to the irrigation system at Clover Park~ the Airport Surplus
ParceL or other City-owned property shall be the sole obligation of the
Developer.
(D) Then, for recirculation into the toilet system, if
either (1) voluntarily elected by the Developer or (2) required by the City
prior to issuance of the budding permit for the first building to be constructed
in a Phase~ based upon a reasonable determination that all of the actual
effluent produced from prior Phases and the projected effluent for the current
Phase shall not be fully utilized for the uses set forth in subsections (A), (B),
and (C).
(E) Then, for discharge into the public storm drain
system provided that the effluent satisfies the standards set forth in Title 22
of the California Administrative Code or any successor law~ and that
necessary approvals are obtained from all applicable governmental entities.
(F) Finally~ any remaining effluent that cannot be used
for the purposes described in subsections (A) through (E)~ inclusiveJ may be
discharged into the public sewer system. City and Developer mutually agree
that~ except as provided in subsection (xiii)~ effluent from the Recycling
System may be discharged into the public sewer system only for emergenCYJ
stand-by or overflow purposes.
Upon written notice to the City~ prior to connection of
the Recycling System to the irrigation system at Clover Park, the Airport
Surplus Parcel, or other City-owned property Developer may elect to reverse
the priorities under subsections (C) and (D).
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(Hi) Developer shall bear all responsibility and costs for the
purchase and installation of the Recycling System. The Recycling System
shall be placed in two (2) or more locations on the Property~ which must be
mutually approved by the Developer and the Director of the City's
Department of General Services.
(iv) Except as otherwise provided herein, the Recycling
System shall be installed on the Property prior to the issuance by the Oty of
the Certificate of Occupancy for Building 1 or Building 2 in Phase 1~
whichever occurs first. If the Recycling System is a modular system, that
system may be purchased and installed by the Developer in components for
each Phase of the Project so long as:
(A) the components to be installed for the then
current Phase together with the components installed in any prior Phase have
the capacity to effectively clean all effluent to the required standards of all
applicable agencies and recirculate the effluent from all buildings and parking
structures in such Phases; and
(B) the necessary components for any Phase are
installed prior to the issuance of any Certificate of Occupancy for any building
or parking structure in the Phase.
(v) If, at any time during the term of this Agreement, the
County or any other applicable governmental agency requires that ownership
of the Recycling System be held by the City or that responsibility for the
operation and maintenance of the Recycling System to be WIth the City~ the
City agrees that, in the event that the City required the Developer to install
the Recycling System pursuant to subsection (i) (B), the City shall accept from
the Developer transfer of ownership of the Recycling System or any
operational modular component thereof which has been or shall be installed
on the Property by the Developer as of the date of the proposed transfer or
shall be installed by Developer thereafter. In such event, for all times during
the term of this Agreement subsequent to said transfer in which City
ownership or operation and maintenance of the Recycling System is either
required by the County or other applicable governmental agency or is
mutually desired by the City and the Developer:
(A) The City shall own, and hold title in its name only
to, the entire Recycling System which has been installed upon the Property;
and
(B) The City shall bear full responsibility for the
maintenance, operation and repair of the Recycling System which has been
or shall be installed by Developer, subject to subsections (vii) and (x).
In the event that the City did not require the Developer to
install the Recycling System pursuant to subsection (i)(B). but the Developer
voluntarily elected to install the Recycling System pursuant to subsection
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(i)(A), the City shall have no obligation to accept ownership of the Recycling
System from the Developer or bear responsibility for the operation and
maintenance of the Recycling System under this subsection (v).
(vi) At any time during the term of this Agreement in which
the City is required to own the Recycling System or be responsible for the
operation and maintenance thereof under subsection (v), the City agrees to
identify itself as the owner and operator of the Recycling System on all
applications to obtain any permits and approvals from the County or any
other applicable governmental agencies which may be required in connection
with the installation of the Recycling System or any component part thereof
or the operation and maintenance thereof.
(vii) In the event that the City owns and holds title to the
Recycling System or is responsible for the operation and maintenance thereof
pursuant to the requirements set forth in subsection (v), Developer shall
indemnify. defend and hold harmless the City in connection with any claim,
loss or liability incurred by the City directly related to the period of such
ownership or to the performance of such operation or maintenance
responsibilities except for claims, losses or liabilities attributable to the wilful
misconduct of the City or its agents or employees.
(viii) The City may not transfer ownership of the Recycling
System to any other person or entity without the prior written consent of the
Developer, provided that the City may transfer and assign ownership of the
Recycling System and all operational and maintenance obligations associated
therewith without the consent of the Developer to a Sanitation District which
may be established after the Effective Date and which includes the Property
(or to a comparable entity which may be established after the Effective Date
with the consent of the Developer, which consent shall not be unreasonably
withheld or delayed) if the City can provide satisfactory evidence that:
(A) the assignment and transfer is approved by the
County and any other applicable governmental entities; and
(B) the assignee Sanitation District or other approved
comparable entity agrees to be bound by all of the provisions of this
subsection (m) and any separate written agreement between the City and the
Developer with respect to ownership or operation and maintenance of the
Recycling System.
(ix) In the event that, at any time during the term of this
Agreement after the City has accepted and held title to the Recycling System
and assumed sole responsibIlity for all operations and maintenance of the
Recycling System, City ownership of the Recycling System and responsibility
for operation and maintenance thereof by the City is no longer required by
the County or other applicable governmental entities, the City may, on its
own election, and shall, on the election of the Developer, transfer ownership
and title to the Recycling System to the Developer and the Developer shall
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thereafter assume responsibility for operation and maintenance of the
Recycling System.
(x) The Developer shall reimburse the City for all actual
expenses paid by the City to third parties or entities in connection with its
maintenance and repair obligation of the Recycling System under this
subsection (m). In the event that the City contracts with an outside person
or entity to perform maintenance and repair services for the Recycling System
during the period of ownership of the Recycling System by the City, the
Developer shall reimburse the City for the actual costs paid by the City under
that contract. Subject to the foregoing and to subsection (vii), the City shall
cooperate with the Developer in its efforts to have the City enter into cost
effective maintenance and repair contracts.
(xi) The City agrees to reasonably cooperate with the
Developer in the filing and processing of any application for necessary permits
and approvals from the County Health Department and any other applicable
governmental agencies for the installation or operation of the Recycling
System. Developer shall bear all filing and processing fees and out-of-pocket
expenses in connection with such permits and applications.
(xii) In addition to its obligation to install and operate the
Recycling System on the Property pursuant to this subsection (m). Developer
shall be required to apply to the City for sewer connection permits for
connection of the Project or any Phases or portions thereof to the public
sewer system to discharge effluent and wastewater into the public sewer
system for emergency, stand-by or overflow purposes. The sewer connection
fee paid by the Developer for such sewer connection permits shall be an
amount equal to ten percent (10%) of the standard sewer connection fee then
charged by the City. Two (2) years after the issuance of the first Certificate
of Occupancy issued by the City for a building in the Project, the Developer
shall cause a test of the Recycling System to be conducted by a qualified
professional to determine the average actual reduction in wastewater
discharge into the public sewer system from the Project during the prior two
(2) year period as a result of the installation and operation of the Recycling
System. If the average actual percentage reduction of wastewater discharge
into the public sewer system during the two (2) year period is less than 90%
of the discharge which would have resulted from the Project in the absence
of the Recycling System, the Developer shall pay to the City a one-time
supplemental fee in addition to the sewer connection fee originally paid by
Developer for issuance of the sewer connection permit. The supplemental
fee shall be the product of the standard sewer connection fee charged by the
City at the time of the original issuance of the sewer connection permit to the
Developer and the percentage difference between 90% and the average actual
percentage reduction of wastewater discharge from the Project into the public
sewer system as a result of the installation and operation of the Recycling
System during the two (2) year test period. For purposes of example only,
assume that the standard sewer connection fee charged by the City at the
time of the application by Developer for a public sewer connection permit for
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the Project pursuant to this subsection (xii) is $1,000,000. The original fee
paid by the Developer would be $100,000 ($100,000 x 10%). If the test
conducted pursuant to this subsection (xii) concluded that the average actual
percentage reduction of wastewater discharge into the public sewer system
was 75%, the Developer would be required to pay to the City a one-time
supplemental fee of $150,000 [$1,000,000 x 15% (90%-75%)]. In no event
shall Developer be entitled to receive any refund of the sewer connection fee
originally paid by Developer for issuance of the sewer connection permit as
a result of the test. For as long as the Recycling System remains operational
on the Property and the Developer pays all costs thereof pursuant to this
subsection (m), the City shall also allow a credit to the Developer against the
monthly sewer usage fees then uniformly charged by the City in an amount
proportionate to the reduction in use of the public sewer system as a result
of the installation and operation of the Recycling System.
(xiii) The respective rights and obligations of the Developer
and the City under subsections (i) through (xii) as to the installation,
maintenance and operation of the Recycling System or any modular
component thereof with respect to any Phase of the Project are expressly
contingent upon both of the following conditions being met within ninety (90)
days following submission of an application (including any legally required
environmental analysis) for the issuance of any required permits or approvals
by the County and any other applicable governmental agencies for installation
and operation of the Recycling System ("Contingency Date"):
(A) the issuance of any required permits or approvals
pursuant to the submitted applications; and
(B) the availability of the Recycling System or any
modular component part thereof for purchase by the Developer.
Prior to the submission to the County and any other applicable
governmental agencies of any applications required for the installation and
ownership of the Recycling System, the Developer shall submit such
applications to the City for its review and approval, which approval shall not
be unreasonably withheld or delayed.
In the event that both of the above two (2) conditions cannot
be satisfied with respect to a Phase on or prior to the Contingency Date for
that Phase, despite the good faith diligent efforts of the Developer, the
Developer shall be authorized to apply to the City with due diligence
following the Contingency Date [or earlier upon notification of denial by the
County or any other applicable governmental agencies of any required permits
or approvals under this subsection (xiii)] for the issuance of any necessary
permits and approvals to connect the improvements constructed within the
Phase to the public sewer system. The City agrees to expeditiously review
and process said application pursuant to this subsection (xiii) and Section 7(d)
of this Agreement and the uniform rules and procedures of the City then in
effect for such applications and to approve such application upon compliance
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by Developer therewith, subject only to the availability of sewer capacity for
the Project requested under the applications. In the event that the Developer
files applications with the City for any required permits for connection of the
Project or any portion thereof to the public sewer system pursuant to this
subsection (xiii) and Section 7(d) of this Agreement, the Developer shall use
its best efforts to identify opportunities for the retrofitting of off-site buildings
and facilities in the City with ultra low-flush toilets and low-flow showerheads
so as to reduce the projected sewage flows from the Project to a t'net zero
flow". Except as provided in the following sentence, if such retrofit
opportunities to reduce the projected sewage flow from the Project to a net
zero flow are identified by the Developer or independently identified by the
City and presented to the Developer the City may condition the approval of
any application for the issuance of a required sewer connected permit for the
Project on the Developer performing or causing to be performed sufficient
retrofitting of off-site buildings and facilities in the City at Developer's sole
cost and expense to reduce the projected sewage flows from the Project to a
"net zero flowtt. Notwithstanding the preceding sentence, if the combined cost
of such retrofitting plus the amount of any sewer connection fee which must
be paid by the Developer in connection with the sewer connection permit
would exceed the projected capital cost of the installation of the Recycling
System plus the projected sewer connection fee which would have been
payable by the Developer under subsection (xi), the Developer shall have no
obligation to pay such excess costs or to perform the retrofitting of off-site
buildings and facilities which would relate to such excess costs and the City
shall not condition the approval of applications of Developer for the issuance
of sewer connection permits for the Project or any portion thereof on such
an obligation. Upon approval of the applications by the City and the issuance
of the sewer connection permit for that Phase, the respective obligations of
the Developer and the City under subsections (i) through (xii) shall terminate
as to the particular Phase. The period of time between the Contingency Date
for a Phase and the date on which the conditions in subsections (A) and (B)
are both met for that Phase or a sewer connection permit is issued for the
Phase, whichever occurs first. shall constitute an excusable delay for the
purposes of Section 18.
(n)
(i) Developer shall not discriminate against any employee
or applicant for employment on the basis of race, religion or creed, sex,
marital status, national origin, sexual orientation, acquired immune deficiency
syndrome, or handicap, and shall cause a similar provision to be inserted in
any contract for work entered into by Developer relating to the Project other
than purchase orders for standard commercial supplies, materials or goods.
(ii) Subject to the provisions of subsection (i) above,
Developer shall develop and submit to the City for approval prior to the
commencement of construction of the Project a suitable affirmative action
program for the hiring of labor and the obtaining of materials during
construction relating to employment, upgrading, demotion or transfer,
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recruitment or recruitment advertising, lay..off or termination, rates of payor
other forms of compensation and selection for training, including appren-
ticeship. Any such plan shall recognize the necessity of compliance with
standard union hiring practices and shall not establish quotas of any kind.
(ill) Prior to the completion of Phase 1 of the Project, and
each Phase thereafter, Developer shall designate a representative whose
responsibility it shall be to identify those employment opportunities suitable
for affirmative action and to develop and submit to the City for approval a
program designed to effectively address affirmative action. Developer's
representative shall, in consultation with appropriate neighborhood
organizations, design and actively promote among the Space Sub lessees of the
Project job training programs that address the needs of the neighborhoods
surrounding the Project.
(iv) Developer shall, in aU solicitations or advertisements for
employees in connection with the Project placed by or on behalf of
Developer, state that all qU.fIl1fied applicants shall receive consideration for
employment without regard to race, religion or creed, sex, marital status, na.
tional origin, sexual orientation, acquired immune deficiency syndrome. or
handicap.
(0) Noise. Developer shall comply with the Noise Element of the General
Plan and the City Noise Ordinance [Ordinance No. 1406(CCS)].
(P) Art.
(i) Developer shall make contributions and expenditures for
public art in an amount equal to One Dollar ($1) for each square foot of the
maximum gross square footage of the Project exclusive of square footage
devoted to parking and uses necessary to operate and maintain such parking
(i.e., 873,000 gross square feet) ["Public Arts Fee"). The Public Arts Fee
shall constitute the total public art obligation of the Developer in connection
with the Project. Except for monies attributable to Developer Art, as defined
in subsection (ii)(B), the Public Arts Fee shall be payable to the City.
(ii) The Public Arts Fee shall be allocated by the City for the
following uses and purposes:
(A) Not more than One Hundred Thousand Dollars
($ 100,000) in conjunction with the restoration and transportation of the
Stanton McDonald Wright Murals;
(B) One Hundred Fifty Thousand Dollars ($150,000)
shall be expended directly by the Developer in connection with public art to
be located within the Project ("Developer An"). The selectIon, designation
and placement of Developer Art shall require the prior approval of the Santa
Monica Arts Commis,.')ion ("Arts CommiJ\Sion").
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(C) The balance of the Public Arts Fee, following
expenditure of all monies pursuant to subsections (A) and (B), shall be
allocated as follows ("Off-Site Art");
(1) Three Hundred Thousand Dollars
($300,000) for use in cooperation with the Santa Monica- Malibu
Unified School District for arts and music programming,
supplies or other arts and music projects for the educational
benefit of school age children. The Arts Commission shall
prepare a plan for City Council approval on the allocation of
these funds. The Council's approval shall be only for the plan
and not the specific art projects.
(2) The balance of the fees shall be
allocated by the Arts Commission for general public arts
purposes.
(Hi) Subject to Section 1St Developer shall pay the Public Arts
Fee according to the following schedule;
(A) The portion of the Public Arts Fee to be used
primarily for the murals in accordance with subsection (ii)(A), shall be paid
to the City not more than forty-five (45) days after the second reading by the
City Council of the ordinance adopting this Agreement.
(B) The portion of the Public Arts Fee to be expended
by the Developer for Developer Art in accordance with subsection (ii)(B)
shall be made in full by the Developer in accordance with subsection (ii)(B)
no later than six (6) months following issuance of the Certificate of
Occupancy for Building 1 or Building 2, whichever occurs last, or such other
date upon which the City and the Developer may mutually agree. On or prior
to the above-determined date, the Developer shall provide the City with
satisfactory documentation evidencing the expenditure of monies by
Developer for Developer Art.
(C) The portion of the Public Arts Fee to be utilized
for Off-Site Art in accordance with subsection (ii)(C) shall be paid as follows:
(1) One Hundred Thousand Dollars
($100,000) shall be paid to the City on the earlier of: (A) the
date on which the building permit for Building 1 or Building 2
in Phase 1 is issued, whichever occurs first, or (B) two (2) years
after the second reading by the City Council of the ordinance
adopting this Agreement. One-half of this payment shall be
allocated to the school arts and music program provided in
subsection (ii)(C)(l) and one-half shall be allocated to the Arts
Commission as provided in subsection (ii)(C)(2).
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(2) The balance of the Public Arts Fee
related to the Off-Site Art [following credit for monies paid
pursuant to subsection (1) shall be paid in full by the Developer
to the Oty on the earlier of: (A) one (1) year after the date on
which the building permit for Building 1 or Building 2 in Phase
1 of the Project is issued, whichever occurs first; or (B) three
(3) years after the second reading by the City Council of the
ordinance adopting this Agreement.
(iv) The Developer shall own all of the Developer Art.
Neither the City nor the Arts Commission shall have any ownership interest
in the Developer Art. Except for the Developer Art, the Developer shall
have no ownership interest in any public art acquired by the City with the
Public Arts Fee, whether placed in the Project or outside the boundaries of
the Property.
(v) Any expendItures by the Developer in connection with
art in and for the Project in excess of amounts set forth in subsection (i)
above shall be in the sole and absolute discretion of the Developer.
(q) Desi~n Standards. The Developer shall comply with all of the
requirements enumerated in Exhibit "e" in connection with the design and development of
the Project.
(r) Storm Water Detention B&~ins. The Developer shall construct on the
Property, the Airport Surplus Parcel, or both, at a location or locations mutually approved
by the City and the Developer, one or more storm water detention basins (collectively,
"Detention Basins"), which may include, at Developer's election, the Water Feature in the
interior of the Project. The Detention Basins shall have an aggregate retention capacity
determined pursuant to a site specific drainage study of the Property provided by the
Developer and reasonably approved by the City prior to issuance of any building permit for
the Project. In no event shall the aggregate capacity of the Detention Basins exceed the
capacity required to retain the storm water from a ''25 year storm" without the Developer's
consent. Developer shall not be required to make any improvements to the downstream
public storm sewer system or to pay any fees, costs or other charges in connection with any
improvements made or proposed to be made to that system, except that Developer shall
be required to pay any normal and customary public storm sewer system usage charges
which are uniformly applied on a City-wide basis and any special assessments which satisfy
the requirements of Section 10(e).
(s) Emergency Features. Fire and life safety features to be included in
the Project shall be approved with respect to each Phase by the City's Fire Chief, which
approval shall not be unreasonably withheld or delayed, prior to issuance of a building
permit for the first building or parking structure in each Phase. The Developer shall
prepare an emergency response plan that provides for the safe evacuation and care of
employees and visitors of Space Sublessees or other visitors to the Project in the event of
an earthquake, fire, other disaster or emergency. The emergency response plan shall be
submitted for approval by the City prior to the issuance of any Certificate of Occupancy for
any building in the Project, which approval shall not be unreasonably withheld or delayed.
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In the event of a major rehabilitation, reconstruction or alteration of any building or
parking structure for which an emergency response plan has previously been approved by
the City Fire Chief, the emergency response plan shall be revised and submitted for the
City Fire Cbiers approval, which approval shall not be unreasonably withheld or delayed.
(t) Homeless Assistance Fee. Developer shall pay to the City a fee of
Three Hundred Thousand Dollars ($300,OOO) to assist the City in establishing and operating
facilities and services for the homeless population in the City ("Homeless Assistance Fee").
Subject to Section 18, the Homeless Assistance Fee shall be payable in full on the earlier
of:
(i) The date on which a building permit for Building 1 or Building
2 in Phase 1 of the Project is issued, whichever occurs first; or
(ii) Two (2) years after the second reading by the City Council of
the ordinance adopting this Agreement.
(u) No Additional Mitig:ations. Except as specifically set forth in this
Section 6 or otherwise provided in this Agreement, including without limitation, Section 10
hereof, the City shall not be entitled to impose any mitigation measures or fees in lieu
thereof on the Project for impacts caused by development of the Project.
7. General Services Reauirements.
(a) Compliance with Requirements. Developer shall comply With all
requirements of the City's Department of General Services as enumerated in Exhibit "0".
Developer's right to develop the Project shall not be conditioned upon any other
requirements of the Department of General Services.
(b) Building Moratoria and Public Sewer Capacity Allocation. Except as
provided in subsections (c) and (d) below, nothing in this Agreement shall require the City
to:
(i) issue a building permit for any building or parking
structure on the Property during any building moratorium generally applicable
throughout the City resulting from the lack of capacity of the public sewer
system to handle additional sewage; or
(ii) issue a public sewer connection permit or building permit
during any period in which public sewer capacity is not available for the
Project in accordance with City Ordinance No. 1451(CCS) or any successor
ordinance or any codes, ordinances, rules, regulations and official policies and
conditions of the City which limit or regulate the issuance of such permits
based upon limited public sewer capacity.
Nothing in this Section 7 shall impair or preclude any rights which the
Developer may have to challenge any moratorium under subsection (i) or the applicability
of the moratorium to the Project.
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(c) Exem!ltion from Moratorium. If the Recycling System is installed on
the Property and the effluent from the Recycling System is exclusively utilized for the uses
set forth in Section 6(m)(ii), the Project shall be exempt from any building moratorium
established by the City as a result of limited or reduced public sewer capacity allocated to
the City, unless such exemption would violate any federal or state law or any laws of the
City of Los Angeles which govern or purport to govern the use of public sewer facilities or
agreements between the City and the City of Los Angeles related to use of public sewer
facilities.
(d) Priority for Sewer Connection Permit. Any application by the
Developer which is authorized under this Agreement for sewer connection permits for
connection of the Project or any Phases or portions thereof to the public sewer system shall
receive priority over applications related to all other developments in the City in the
allocation by the City of any public sewer capacity available in the City pursuant to any
codes, ordinances, rules, regulations and official policies and conditions of approval of the
City which limit or regulate the issuance of sewer connection permits or building permits
based upon limited public sewer capacity, except for the following types of developments -
- low and moderate income housing projects, shelters for the homeless, daycare centers,
public and private non-profit schools, non-profit or City-sponsored community service
institutions, City constructed public restrooms and residential housing projects (four units
or less) which have an estimated total wastewater flow increase of no more than five
hundred fifty (550) gallons per day. For purposes of this subsection (d), an application by
the Developer for a sewer connection permit is authorized under this Agreement if the
connection applied for by the Developer:
(i) is required for emergency, stand-by or overflow purposes,
as discussed in Section 6(m)(ii)(F), in the event that the Recycling System is
installed on the Property;
(ii) is permitted under the specific circumstances set forth in
Section 6(m)(xiii); or
discretion.
(Hi) is otherwise approved by the City in its sole and absolute
8. Chang:es to Project and ProJect Site Plan. If Developer desires to make any
changes to the Project or the Project Site Plan during the term of this Agreement,
Developer shall do so in accordance with the provisions of this Section.
(a) Minor ChanEes. Subject to the express limitations which are set forth
in subsection (d) below, Developer may, in its sole and absolute discretion, make the
following changes to the Project or the Project Site Plan without amending this Agreement
upon written notice to the Zoning Administrator and the Director of the Community and
Economic Development Department and submission of plans showing such changes:
(i) Increase the number of parking spaces provided in any
parking structure above the spaces for that structure set forth in Section 3(a);
provided such increase in spaces does not increase the Maximum Floor Area
of at-grade and above-grade parking for the Project.
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(ii) Increase the Subterranean Parking Area.
(Hi) Subject to any requirements for Developer to apply for,
and obtain City approval of, any subdivision map, parcel map or lot line
adjustment pursuant to Section 12(a), move a line delineating any Phases by
not more than five (5) feet in any direction so long as:
(A) the total square foot area comprising each Phase,
as reflected on the Project Site Plan, shall not be altered;
(B) the movement does not cause any portion of the
Designated Area for any building or parking structure to be included in a
different Phase;
(C) the movement does not materially alter the
configuration of any Phase; and
(D) the movement is within the Property.
(b) Moderate Ch~nges. Subject to the express limitations which are set
forth in subsection (d) below, upon approval of the Zoning Administrator (or the Planning
Commission on appeal), Developer may, without amending this Agreement, increase the
Floor Area of any building or parking structure by five percent (5%) of the maximum Floor
Area of the building or structure set forth in Section 3(a), provided that any such increase
shall be wholly offset by a reduction in the permitted Floor Area of other building(s) or
structure(s) which are set forth in Section 3(a), which reduction shall be specified by the
Developer in its application to the Zoning Administrator.
(c) Major Changes. Except as otherwise provided in this Agreement, any
other changes to the Project or the Project SIte Plan shall require an amendment to this
Agreement in accordance with the proViSIOns of Santa Monica Municipal Code Section
9800 et seq., Government Code SectioIl5 65864 et St;q and this Agreement.
(d) Limitation on Minor and Moderate Changes. None of the minor
changes discussed in subsection (a) may be made unilaterally by Developer if such change
would also result in or cause a moderate change or major change to the Project unless the
Developer obtains approval for the moderate change or major change pursuant to
subsections (b) or (c), respectively. No moderate change discussed in subsection (b) may
be approved by the Zoning Administrator (or by the Planning Commission upon appeal)
if such change would also result in or cause a major change to the Project unless the
Developer obtains approval for the major change pursuant to subsection (c).
(e) Procedure for Approving Mo~erate Change:
(i) The Developer shall file a letter application with the City
Planning Division. The application shall specify the specific changes being
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requested and shall include plans describing such changes in a form approved
by the Zoning Administrator.
(ii) The fee for any such application shall be the then current
fee uniformly established by the City for the filing and processing of variance
applications.
(iii) The Zoning Administrator shall have thirty (30) days
within which to determine the completeness of the application. If the Zoning
Administrator determines the application to be incomplete, the Zoning
Administrator shall promptly provide the Developer with written notice that
the application has been deemed incomplete, and such notice shall itemi7:e
the grounds upon which the Zoning Administrator has determined the
application to be incomplete. Upon a determination of incompleteness, the
application may be resubmitted by the Developer providing the Zoning
Administrator with the supplemental information requested in the notice of
incompleteness. The Zoning Administrator shall then have an additional
thirty (30) days to determine whether the application is complete.
(iv) A public hearing before the Zoning Administrator shall
be conducted not less than ten (10) days nor more than sixty (60) days after
the application is determined to be complete, and notice of such hearing
shall be given in a manner consistent with the City's standard noticing
procedures for a variance application.
(v) Following the public hearing, the Zoning Administrator
shall prepare a written decision within thirty (30) days which shall contain the
findings of fact upon which such decision is based and, in the case of
approval, any conditions of approval. In order to approve such an application,
the Zoning Administrator shall make findings that the proposed change:
(A) is consistent with the purposes and goals of this
Agreement;
(B) is not detrimental to the public health, safety;
convenience or general welfare; and
(e) will not significantly and adversely affect the ar-
chitectural integrity of the Project or the public benefits associated with the
Project.
(vi) A statement of official action shall be issued by the
Zoning Administrator on the date of the Zoning Administrator's decision.
A copy of the statement of official action shall be provided to the Developer
by the Zoning Administrator in accordance with Section 25.
(vii) Any person may appeal the approval, conditions of
approval or denial of the application to the Planning Commission if a written
notice of appeal is filed with the Planning Division within fourteen (14) days
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following the date of decision. The appellant shall state, in the written notice
of appeal, the specific reasons for the appeal. Any such appeal shall utilize
the procedure then uniformly established by the City for the appeal of
variance applications and shall be accompanied by the filing fee then requir-
ed under that procedure. Public notice of an appeal hearing shall conform
to the manner in which notice of the original hearing was given. A copy of
the written notice of appeal shall be provided to the Developer by the City
in accordance with Section 25.
(viii) A public hearing on the appeal shall be held by the
Planning Commission no more than sixty (60) days after the notice of appeal
is filed with the Planning Division. Following the public hearing, the Planning
Commission shall either affirm, reverse or modify the decision of the Zoning
Administrator. A statement of official action shall be issued by the Planning
Commission within thirty (30) days following the public hearing. The deci-
sion of the Planning Commission shall contain the same findings required for
a decision of the Zoning Administrator under subsection (v).
(ix) All public hearings conducted pursuant to this subsection
8( e) shall be conducted in accordance with the then applicable procedural
rules of the hearing body.
(x) Once an appeal is filed, the appellant body may review
and take action on all determinations, interpretations, decisions, judgments,
or similar actions taken which were in the purview of the original hearing
body on the application and is not limited to only the matters appealed or
grounds for the appeal as stated in the notice of appeal.
9. Assignment; BinQing Effect. Developer shall not sell, transfer, exchange,
hypothecate, encumber or otherwise dispose of its interest in the Property or the Project,
or any portion thereof, except as permitted under the DDA and the Ground Leases. Any
transfer of Developer's interest under the DDA or Developer's leasehold interest under the
applicable Ground Lease(s) which is permitted or required under or pursuant to the nDA
and/or the applicable Ground Lease(s) shall automatically operate to transfer with such
interest the benefits, rights, burdens, duties and obligations of this Agreement. This
Agreement shall not be severable from Developer's interest in the Property and the Project.
In the event of a permitted transfer to a third party transferee, Developer shall be released
from its obligations under this Agreement with respect to the portion of the Property and
Project so transferred, except for those obligations which have accrued or matured prior to
the date of such transfer. The transferee shall be required to execute and deliver to the
City a written agreement in which the transferee expressly and unconditionally assumes all
of the obligations of Developer under this Agreement with respect to the portion of the
Property and the Project so transferred.
to. Effect of AQreement on Land Use Relrulations.
- -
(a) Application of Existing: Regulations. Except as provided in this Section
10 or otherwise in this Agreement, development of the Property and the Project, includmg
without limitation, density, permitted uses, intensity of use, design and improvement shall
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be governed by the Existing Regulations. Development of the Property and the Project
shall not be governed by any amendments, revisions, additions or deletions to the Existing
Regulations or new laws or regulations of the City governing or affecting development
adopted subsequent to the Effective Date (sometimes collectively, "Subsequent Code
Changes"), unless:
(i) the City and the Developer mutually agree in writing;
(ii) the Subsequent Code Changes are mandated and
required by changes in state or federal laws or regulations as provided in
Government Code Section 65869.5;
(iii) the Subsequent Code Changes satisfy each of the following
conditions:
(A) The Subsequent Code Changes do not impair the
rights of the Developer to develop the Property as contemplated in this
Agreement;
(B) If Subsequent Code Changes distinguish between
"existing't development and "new" or "proposed" development, the entire
Project is considered as "existing" development (including Phases which have
not then been ground leased to the Developer and legally subdivided parcels
of the Property which have been ground leased but for which no building
permit has been issued; and
(C) The Subsequent Code Changes are uniformly
applicable to all businesses, uses, buildings and structures which are similar
to the businesses, uses, buildings and structures permitted in the Project
throughout a reasonably defined geographical area of the City, which shall
include, in addition to the Airport Commercial District, comparable districts
and areas.
(b) Processmg and Permit Fees. Except as otherwise specifically provided
in this Agreement, Developer shall be subject to all City-imposed application, processing
and permit fees and charges, including utility connection fees, with respect to applications
for development and construction within the Property which are in effect on the date on
which each application is filed, so long as such fees and charges are in force and effect on
a City-wide basis.
(c) Inconsistent Code Provisions. As applied to this Agreement and the
Project, any provisions of the Santa Monica Municipal Code or appendices thereto
inconsistent with the provisions of this Agreement, to the extent of such inconsistencies
and not further, are hereby modified to that extent necessary to effect the provisions of this
Agreement.
(d) Architectural Review Board. Building colors and materials, design
elements, signage, trash enclosures and screening and the landscape and hardscape plan for
the Project shall be reviewed and approved or conditionally approved by City's
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Architectural Review Board ("ARB") in accordance with design review procedures in effect
under the Existing Regulations. The ARB shall approve all features which are specifically
approved by this Agreement or in the Project Site Plan. The ARB shall have no authority
to disapprove or conditionally approve any features or matters which have been specifically
approved by this Agreement or in the Project Site Plan.
(e) S!,ecial Assessments. Notwithstanding anything to the contrary in this
Agreement, the Developer shall be subject to special assessments of general application in
the City, provided that such special assessments meet the same three (3) requirements to
which Subsequent Code Changes are subject in order for such Subsequent Code Changes
to govern development of the Property and the Project under subsection (a)(iii).
11. Certificates of Occu!,&n~. Upon completion of any portion of the Project for
which a separate building permit has been issued in compliance with such building permit,
and compliance with the Existing Regulations, this Agreement and other applicable
agreements between City and Developer, and completion of parking for such portion of the
Project according to the ratio established in Section 3(i), the City shall promptly issue a
Temporary or Final Certificate of Occupancy therefor to Developer.
12. Permits and Auorovals.
of:
(a) Issuance of Ne~essary P~rmits and Ap!lrovals. Upon the occurrence
(i) satisfactory completion by the Developer of all actions required
prior thereto under (A) this Agreement, (B) Existing Regulations, (C) any
Subsequent Code Changes applicable to the development of the Property and the
Project pursuant to Section lO(b) and (D) any codes, ordinances, rules, regulations
and official policies and conditions of approval of the City which do not affect
development of the Property and the Project;
(ii) the Issuance of any and all approvals of the City which are
required prior thereto by this Agreement and which this Agreement specifically
provides are discretionary with the City, and
(iii) the payment of applicable processing fees, if any,
the City shall promptly commence and diligently proceed to complete all applicable Oty
procedures and processes then uniformly in effect to grant or issue any approvals, consents,
or permits which are necessary or reasonably desired by the Developer for the development
by the Developer of the Project and the Property in accordance with the Project Site Plan
and this Agreement, including, but not limited to the following:
(A) The processing, checking and approval of all
applications, plans, land use and zoning permits, building plans and
specifications and other plans relating to the development of the Project and
the Property which have been filed by the Developer.
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(B) The processing, checking and approval of all
applications for tentative subdivision maps, vesting tentative maps, parcel
maps, final subdivision maps and lot line adjustments for the Property or any
Phases or portion thereof to divide the Property into various legal parcels
which may be requested by the Developer and which are consistent with this
Agreement, the DDA, and the Ground Lease for that Phase or portion of the
Property. No applications by Developer for such maps to divide the Property
into various legal parcels shall be approved by the City unless such
applications and maps are consistent with this Agreement, the DDA and the
Ground Lease for the applicable Phase or portion of the Property.
(C) The processing, checking and approval of all
applications for building and related mechanical, electrical, plumbing and
other ancillary permits necessary for the completion of the development of
each Phase or portions thereof comprising the Project. H requested by
Developer, the City shall promptly review and thereafter issue a separate
building permit and ancillary permits for each building, parking structure or
other structure of the Project upon Developer's submission to the City of
plans which conform to the Administrative and Technical Construction Codes
of the City (Article VIII, Chapter 1 of the Santa Monica Municipal Code) in
effect at the time of the permit application. Such permits shall allow for the
commencement of construction of the permitted improvements within six (6)
months of the date of issuance thereof. In the event that construction has not
commenced within six (6) months, the building permits may be renewed for
six (6) additional months with the payment of a new permit fee as long as the
plans satisfy any changes in the Administrative and Technical Construction
Code of the City which are adopted subsequent to the issuance of the permits,
either as those plans were originally submitted by the Developer or as later
amended to comply.
(D) The processing, checking and approval of
applications by the Developer for demolition permits and excavation or
grading permits for the Project without the necessity of applying for or
receiving a building permit to replace the structure to be demolished, if any;
provided, howevert that Developer shall obtain approval of a property
maintenance plan in accordance with Santa Monica Municipal Code Section
9048.1, which approval shall not be unreasonably withheld or delayed.
(b) rrQ!>rietary Ca!,a~ity. Notwithstanding subsection (a), the CitYs obliga-
tions in its governmental capacity as provided in this Agreement shall not impair or result
in any diminution of City's rights in its proprietary capacity as provided in the DDA and
the Ground Leases, and no approval by City in its governmental capacity shall satisfy or be
deemed to satisfy any requirement for City's approval in its proprietary capacity as provided
in the DnA or any applicable Ground Lease.
(c) Agreements WIth Other Agencies. The Developer shall apply for such
other permits and approvals as may be required from other governmental or
quasi-governmental agencies having jurisdiction over the Project and the Property which are
necessary or are reasonably desired by the Developer for the development of, or the
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proVlSlOn of services to] the Project. The City shall reasonably cooperate with the
Developer and the Developer's endeavors to obtain such permits and approvals and shall
from time to time at the request of the Developer negotiate to enter into binding
agreements with any such agencies to assure the availability of such permits and approvals
or the provision of such services (provided that such agreements are reasonable and not in
any way detrimental to the City in the City]s sole judgment). To the extent allowed by law,
the Developer may elect to be a party to any such agreement or a third party beneficiary
thereof entitled to enforce for its benefit on behalf of the City or in its own name the rights
of the City or the Developer thereunder or the duties and obligations of the parties thereto.
Except as otherwise specifically provided in this Agreement, the DDA or the Ground Leas-
es or \mless prior to the commencement by the City of negotiations for such agreement
(insofar as Developer's indemnity, defense and reimbursement obligations relate to
negotiations) or the execution by the City of such agreement (insofar as Developer's
indemnity, defense and reimbursement obligations relate to execution or performance of
the agreement) the Developer has notified the City in writing that Developer does not
desire the City to negotiate or execute, as the case may be, such agreement:
(i) the Developer shall indemnify, defend and hold harmless
the City in connection with any claim, loss or liability alleged by or against,
or incurred by, the City in connection with the negotiation, execution and
performance of any agreement entered into pursuant to this subsection (c);
and
(ii) the Developer shall reimburse the City for all fees,
assessments and other amounts payable by the City in connection with the
negotiation, execution or performance of any such agreement.
In the event that such negotiations or agreements may expose the City, in its
reasonable judgment, to any liability, the City may require the Developer to provide
reasonable security for the obligations of Developer under subsections (i) and (ii) as a
condition precedent to the performance by the City of its obligations under this subsection
(c).
13. Periodic Review of Comnliance with Ae:reement.
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(a) City Review. The City shall review this Agreement at least once every
12 month period from the Effective Date.
(b) R~quired Finding:s. During each periodic review by the City,
Developer shall be required to demonstrate good faith compliance with the terms of this
Agreement. In connection therewith. on or before July 1st of each calendar year during the
term of this Agreement, the Developer shall provide a written report to the City in which
an officer of the Developer certifies good faith compliance by the Developer with the terms
of this Agreement during the prior calendar year, except for those areas of non-compliance
which are specifically set forth in the written report together with the reasons advanced by
the Developer for non-compliance. During each periodic review by the City. in connection
with the mitigation measures for which the City is responsible, City shall prepare a written
report regarding implementation of all such mitigation measures. Prior to a Certificate of
Occupancy for the last building in Phase 3 of the Project. each periodic review shall include
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a status report submitted by the Developer on the implementation of all environmental
mitigation measures required under this Agreement. The Qty Council shall evaluate said
status report and me its fmdings with regard to implementation of required mitigation
measures with the City Clerk. lit as a result of such periodic review, the City Council finds
and determines, on the basis of substantial evidencet that the Developer has not complied
in good faith with the terms or conditions of this Agreementt the City Council shall
commence proceedings to enforce, modify or terminate this Agreement.
(c) Evidence of Good Faith Comoliance. Evidence of good faith
compliance by the Developer under this Section 13 -may include, but is not necessarily
limited tOt the following~
(i) Conformance with the requirements of the Existing
Regulations, except as otherwise modified by this Agreement;
(ii) Conformance by the Developer with the terms and
conditions of this Agreement; and
(Hi) The existence of any specified excusable delays under this
Agreement which prevented or delayed the timely performance by Developer
of any of its obligations under this Agreement.
(d) Public Hearing. If the City should determine on the basis of
substantial evidence that the Developer has not complied in good faith with the terms and
conditions of this Agreement, and further determines to proceed with modification or
termination of this Agreement in accordance with subsection (b), the City shall provide
written notice to the Developer of its intention to modify or terminate this Agreement
unless the Developer cures or corrects the acts or omissions that constitute the basis of such
determinations by the City. The notice shall be delivered by the City to the Developer in
accordance with Section 25 and shall contain:
(i) The time and place of a public hearing to be held by the
City Council, no less than thirty (30) days after delivery of the notice to
Developer, on the determination of the City to proceed with modification
or termination of this Agreement;
(ii) A statement as to whether the City proposes to modify
or terminate this Agreement; and
(iii) Any proposed modifications to this Agreement.
li, following the conclusion of the public hearing, the City Counc1l determines
that the Developer has not been in good faith compliance with this Agreement and further
determines that the Developer has not cured the acts or omissions that constitute the basis
of that determination (or, if those acts or omissions could not be reasonably remedied prior
to the public hearing, that Developer has not in good faith commenced to cure or correct
such acts or omissions prior to the public hearing or is not diligently and continuously
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proceeding therewith to completion), the City Council may take such action as it deems
necessary to protect the interests of the City pursuant to this Agreement.
14. Enforcement. This Agreement is enforceable by any party to it
notwithstanding a change in any applicable general or specific plan, zoning, subdivision or
building regulations adopted by the City which alter or amend the Existing Regulations.
15. Validity of Agreement. In any litigation concerning this Agreement, neither
party hereto shall assert as a claim or defense the invalidity of this Agreement.
16. Default. The City or the Developer shall be in default under this Agreement
upon the happening of one or more of the following events or conditions ("Event of
Default"):
(a) Developer Defaults. Developer shall be in default under this
Agreement ("Developer Defaults") if:
(i) The Developer shall fail to pay the City any amount due
under this Agreement as and when due, and such failure to pay continues for
a period of ten (10) days after written notice from City;
(ii) The Developer shall fail to perform or comply in good
faith with any of the other agreements, terms, covenants or conditions of this
Agreement on Developer's part to be performed or complied with, and such
nonperformance or noncompliance shall continue for a period of thirty (30)
days after written notice from City, or, if such performance cannot reasonably
be completed within such thirty (30) day period, Developer shall not in good
faith have commenced such performance \\ithin such thirty (30) day period
or shall not diligently and continuously proceed therewith to completion;
provided, however, that in no event shall such cure period be extended
beyond one hundred twenty (120) days from the date of such notice;
(Hi) A finding and determinatIon by the City Council is made
upon the basis of substantial evidence following a periodic review under
Section 13 that Developer has not complied in good faith with the terms or
conditions of this Agreement and has not cured or corrected the act(s) or
omission(s) which were the basis for sllch determination; or
(iv) An express repudiation, refusal or renunciation of this
Agreement is made by Developer, if the same is in writing and signed by the
Developer.
(b) City Defaults. The City shall be in default under this Agreement ("City
Defaultst') if:
(i) The City shall fail to comply in good faith with the re-
quirements of any of the agreements, terms, covenants or conditions of this
Agreement on the City's part to be performed or with which the City must
comply and such failure shall continue for a period of thirty (30) days after
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written notice from the Developer, or, if such failure cannot reasonably be
remedied by City within such thirty (30) day period, City shall not in good
faith have commenced to cure such failure within such thirty (30) day period
or shall not diligently and continuously proceed therewith to completion
(provide~ however, that in no event shall such cure period be extended
beyond one hundred twenty (120) days from the date of such notice); or
(ii) An express repudiation, refusal or renunciation of this
Agreement is made by the City, if the same is in writing and signed by the
City.
17. Procedure Uoon Default.
(a) Termination by City. Subject to subsection (c), upon the occurrence
of a Developer Default, the City may terminate this Agreement upon written notice to
Developer or, in the case of a Developer Default under Section 16(a)(iii) hereof, the City
may modify or terminate this Agreement pursuant to procedures set forth in Section 13.
(b) Termination by Developer. Subject to subsection (c), upon the
occurrence of a City Default for failure to comply in good faith with the requirements of
Sections 6(c), 6(n), 12(c) or Exhibit "E" of this Agreement to be performed by the City, or
upon the failure by the City to comply in good faith with the requirements of this
Agreement regarding the permitted use and development of the Property, including without
limitation, the obligations of the City under this Agreement to review and issue permits and
approvals applied for by Developer in connection with the development of the Project or
use of the Property, Developer may terminate this Agreement upon written notice to the
City.
(c) Application of Termination. The termination of this Agreement by the
City under subsection (a) or by the Developer under subsection (b) shall apply to the
legally subdivided parcel or parcels of the Property to which the Event of Default relates
(provided that no building permit has been issued for any such parcel or parcels) and to all
other legally subdivided parcels of the Property for which no building permit has been
issued at the time of termination but shall not apply to any legally subdivided parcel or
parcels for which any building permit has been issued as of, or prior to, the date of such
termination. No termination shall impair the continuing applicability of this Agreement to
legally subdivided parcels of the Property for which any building permit has been issued at
the time of termination.
(d) Remedies Cumulative. Any right or remedy of the parties under this
Agreement and any other right or remedy that either party may have at law or equity,
including, without limitation, specific performance and injunctive relief, and also including
any remedies under the Existing Regulations, upon the breach of any covenant, agreement,
term, provision or condition in this Agreement by the defaulting party shall be distinct,
separate and cumulative rights or remedies available to the parties and no one of such
remedies, whether exercised by the non-defaulting party or not, shall be deemed to be in
exclusion of any other. The non-defaulting party may, in its discretion, exercise any and all
of its rights and remedies, at once or in succession, at such time or times as the
non-defaulting party considers appropriate.
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(e) Cessation of Rights and Obligations. If this Agreement is terminated
on account of an Event of Default. except as otherwise provided in this Agreement, the
rights, duties and obligations of the parties hereunder shall cease as of the date of such
termination as to the portions of the Property to which the termination applies pursuant to
subsection (c). If the City is the terminating party, then any and all benefits, including
money received by the City, shall be retained by City. If Developer is the terminating
party, then Developer shall be entitled to any amounts paid by the Developer to the City
which are attributable to the legally subdivided parcels of the Property to which the
termination applies pursuant to subsection (c).
(f) Comoletion of Imorovements. Notwithstanding the provisions of
subsections (a) through (c) above, inclUSIve, no termination of this Agreement shall prevent
Developer from completing, occupying and using buildings or other improvements
authorized pursuant to building permits previously approved by City and under construction
at the time of termination, and all of Developer's rights, duties and obligations hereunder
with respect to completion, occupancy and use of such buildings and other improvements
shall remain in full force and effect, provided that the Developer complies with all
applicable provisions of this Agreement (as if this Agreement were not terminated) in the
completion, occupancy and use of the buildings and improvements.
(g) Survival of Obligations_ Notwithstanding any other provision of this
Agreement to the contrary, Developer's and City's obligations to payor perform obligations
incurred or accrued prior to the date of any termination of this Agreement shall survive any
such termination and shall be enforceable after such termination.
18. Excusable D~lays. In addition to any specific provisions of this Agreement,
neither the City nor the Developer shall be deemed to be in default for any delay in the
performance of their respective obligations under Sections 5 or 6(b) where delays or de-
faults are due to:
(a) War, insurrection, strikes, walk-outs, riots, floods, earthquakes, fires,
casualtiest acts of God, or simIlar grounds for excused performances which are not within
the reasonable control of the paTty to be excused;
(b) Governmental restrictions or moratoria imposed by the City [including
without limitation, any moratorium which is more specifically discussed in Section 7(b)], or
by other governmental entities, the enactment of conflicting State or Federal laws or
regulations, or the acts or failures to act of any governmental agency or entity;
(c) Restrictions or moratoria imposed by judicial decisions, litigation
(contesting the validity, or seeking the enforcement or clarification of, this Agreement
whether instituted by Developer, the City or any other person or entity).
(d) The institution of a referendum pursuant to Government Code Section
65867.5 or a similar public action seeking to in any way invalidatet alter, modify or amend
the ordinance adopted by the City Council approving and implementing this Agreement;
or
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(e) Inability to secure necessary labor, materials or tools, strikes, lockouts.
other labor disputes.
Under no circumstances shall the inability of the Developer to secure
financing be an excusable delay to the obligations of the Developer.
With respect to the obligations of the Developer to pay fees or charges to the
City under Section 6(p), a delay in the performance of such obligations shall be permitted
only for the reasons set forth in subsections (b), (c) and (d).
In order for an extension of time to be granted pursuant to this Section,
written notice of the excusable delay must be given by the requesting party within thirty
(30) days of the commencement of the delay. The extension of time for the excusable
delay shall be for the period of the delay.
19. Notice of Termination. Upon termination of this Agreement as to the
Property and the Project, or any portion thereof, the parties hereto shall execute an
appropriate notice of termination suitable for recording in the official records of Los
Angeles County.
20. Leasehold Mortg:ag~es.
(a) Notice to Le~sehold Mortgagee. A Leasehold Mortgagee may give
notice to City, specifying the name and address of such Leasehold Mortgagee and attach-
ing thereto a true and complete copy of the Leasehold Mortgage held by such Leasehold
Mortgagee. If such notice shall be given. the City shall thereafter send to such Leasehold
Mortgagee a copy of each notice of default by Developer which relates to. affects, or
potentially may adversely affect, the leasehold interest of Developer in the Property or
portion thereof which serves as security for the Leasehold Mortgage at the same time as
and whenever any such notice of default shall be given by City to Developer, addressed to
such Leasehold Mortgagee at its address last furnished to City, and the period within which
a Leasehold Mortgagee may cure a particular default hereunder, as set out in subsection
(b) below, shall not begin to run until City has sent to the Leasehold Mortgagee such copy
of a notice of such default.
(b) Cure of Default l;>y Leas~hold Mortgagee. Such Leasehold Mortgagee,
after such notice has been given, shall thereupon have an additional period of twenty (20)
days in the case of any default in the payment of money, and an additional forty-five (45)
days in the case of any other default, for remedying the default or causing the same to be
remedied. If Developer shall be in default hereunder, such Leasehold Mortgagee shall
have the right to remedy such default, or cause the same to be remedied within the period
and otherwise as herein provided. City shall accept performance by any such Leasehold
Mortgagee of any covenant, condition, or agreement on Developer's part to be performed
hereunder with the same force and effect as though performed by Developer. No
Developer Default with respect to the performance of work required to be performed, or
acts to be done, or conditions to be remedied shall be deemed to exist, so long as such
Leasehold Mortgagee shall. in good faith, have commenced promptly to rectify the same
and shall thereafter prosecute the same to completion with diligence and continuity.
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(c) Extension of Time to One:. The period ohime given to the Leasehold
Mortgagee to cure any default by Developer which reasonably requires that said Leasehold
Mortgagee be in possession of the Property to do so, shall be deemed extended to include
the period of time reasonably required by said Leasehold Mortgagee to obtain such
possession (by foreclosure, the appointment of a receiver of otherwise) promptly and with
due diligence; provided, however, that during such period all other obligations of Developer
under this Agreement, including, without limitation, payment of all amounts due, are being
duly and promptly performed.
(d) liability of Leasehold Mortgagee. No Leasehold Mortgagee shall
become liable under the provisions of this Agreement unless and until such time as it takes
possession or becomes the owner of the leasehold estate covered by its Leasehold
Mortgage, and then only for obligations arising or accruing during or with respect to the
time it is in possession or a lessee under such leasehold estate; but the preceding portion
of this sentence shall not limit or restrict in any way City's authority to terminate this
Agreement, as against any Leasehold Mortgagee as well as against Developer if any curable
default hereunder (including, without limitation, any default in the payment of any amount
due) is not completely cured within the time period allowed hereunder for such cure.
(e) Subordination of Accrued TOM Fee. The allocable portion of any
IDM Fee which has accrued pursuant to Section 6(h) prior to such time ("Foreclosure
Date") as the Leasehold Mortgagee under the Leasehold Mortgage which is the most senior
mortgage lien on the interest of the Developer in and to the Property or the applicable
portion of the Property ("Senior Leasehold Mortgage") or any party acting on its behalf,
acquires title or possession to the Property or the applicable portion or sells such Property
or the applicable portion pursuant to a trustee's or judicial sale in the event of foreclosure
of the Senior Leasehold Mortgage ("Accrued TOM Fee") shall be subordinate to the Senior
Leasehold Mortgage. All principal, interest and other payments to be made pursuant to
the Senior Leasehold Mortgage shall have priority over the Accrued roM Fee. In the
event of foreclosure of the Senior Leasehold Mortgage:
(i) the amounts owing under the Senior Leasehold Mortgage
shall be paid from any available sale proceeds before any payment of the
Accrued TOM Fee.
(ii) a good faith purchaser of the leasehold estate which
serves as security for the Senior Leasehold Mortgage at a trustee's or judicial
sale of the Property in the event of foreclosure of the Senior Leasehold
Mortgage shall receive title to such leasehold estate free and clear of any
Accrued TOM Fee.
From and after the Foreclosure Date, the obligation to pay the TOM Fee,
prorated for the year in which the Foreclosure Date occurs, shall recommence and continue
pursuant to the provisions of Section 6(h) and any new Senior Leasehold Mortgage shall
have the subordination benefits set forth in this subsection (ii).
21. Duration of Agreement. This Agreement shall expire fifty-five (55) years
from execution hereof; provided that, with respect to each separate legal parcel in the
Property which is the subject of a Ground Lease from the City to the Developer, the term
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of this Agreement shall be extended through and including the last day of the term
(including any option periods) of that Ground Lease. The provisions of this Agreement
shall not apply, however, to those separate legal parcels in the Property for which the term
of the applicable Ground Lease has expired by its own terms. After expiration or full
satisfaction of this Agreement the parties shall execute an appropriate certificate of
termination which shall be recorded in the official records of Los Angeles County.
22. Supersedure by Subsequent Laws. H any agency (including, without
limitation, the Federal Aviation Administration or the City of Los Angeles) other than the
City passes any law or regulation ("Law") after the date of this Agreement or takes or
refuses to take any action which prevents, precludes or impairs compliance with one or
more provisions of this Agreement, then the parties shall meet and confer in good faith to
determine the feasibility of modifying or suspending one or more provisions of this
Agreement to comply with such new Law or to address the action or refusal to act based
upon the effect such modification or suspension would have on the purposes and intent of
this Agreement. In addition, Developer shall have the right to challenge the new Law or
the action or refusal to act which prevents compliance with the terms of this Agreement,
and, in the event such challenge is successful, this Agreement shall remain unmodified and
in full force and effect.
23. Estoppel Certificate. Either party may, at any time, and from time to time,
deliver written notice to the other party requesting such party to certify in writing:
(a) that this Agreement is in full force and effect,
(b) that this Agreement has not been amended or modified either orally
or in writing. or if so amended, identifying the amendments,
(c) whether or not, to the knowledge of such party, the requesting party
is in default or claimed default in the performance of its obligations under this Agreement,
and, if so, describing the nature and amount of any such default or claimed default, and
(d) whether or not, to the knowledge of such party, any event has occurred
or failed to occur which, with the passage of time or the giving of notice, or both, would
constitute a default and, if so, specifying each such event.
A party receiving a request hereunder shall execute and return such certificate within thirty
(30) days following the receipt thereof. The City Manager shall have the right to execute
any certificate requested by Developer hereunder. The City acknowledges that a certificate
hereunder may be relied upon by transferee, Leasehold Mortgagees or other parties.
24. Recording of Agreement. The parties hereto shall cause this Agreement to
be recorded in the Official Records of the County of Los Angeles. The COS4 if any, of
recording this Agreement shall be borne by Developer.
25. Notices. Any notice, demand, request, consent, approval or communication
which either party is required to or may give to the other hereunder shall be in writing and
shall be delivered or addressed to the other at the address below set forth or to such other
address as either party may from time to time direct by written notice given in the manner
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herein prescribed, and such notice or communication shall be deemed to have been given
or made when communicated by personal delivery or by independent courier service or by
facsimile or if by mail on the second business day after the deposit thereof in the United
States Mail in Los Angeles County, California, postage prepaid, registered or certified,
addressed as hereinafter provided. All notices, demands, requests, consents, approvals or
communications from Developer to City shall be addressed to City at:
City of Santa Monica
1685 Main Street
Santa Monica, California 90401
Attention: City Manager
With copies to:
City Attorney
City of Santa Monica
1685 Main Street
Santa Monica, California 90401
And,
Director of Community and Economic
Development
City of Santa Monica
1685 Main Street
Santa Monica, California 90401
And,
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue
Los Angeles. California 90071-3144
AttentIOn: Richard S. Volpert, Esq.
All notices, demands, requests, consents, approvals or communications from City to
Developer shall be addressed to Developer at:
Reliance Development Group, Inc.
55 East 52nd Street
New York, New York 10055
Attention: Henry A Lambert, President
With copies to:
Reliance Development Group, Inc.
900 Wilshire Boulevard, Suite 1200
. Los Angeles, California 90017
Attention: D. Michael Gray
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And,
Lawrence & Harding, P.c.
1250 Sixth Street, Suite 300
Santa Monica, CA 90401
Attention: Richard A Lawrence, Esq.
26.
(a) Excul!>ation. Except for the obligations of the City specifically set forth
in this Agreement, the DDA or the Ground Leases. City shall have no liability of any kind
whatsoever for. in connection with, or as a result of, the Project or any portion of the Pro-
perty ground leased to Developer, or the condition thereof, or the ownership or operation
thereof, or any act or occurrence that occurs thereat, or in connection therewith, at any
time during the term of this Agreement. whether for any damage or injury to any persons
whatsoever or to any property of Developer. or of any other person, for any reason
whatsoever, for any injury to Developer's business or any loss of income therefrom, or
otherwise including. without limitation, those occasioned by or arising from:
(i) the demolition of existing buildings, if any, or the
construction, operation or maintenance of the Project or any improvements
upon any portion of the Property ground leased to Developer, or the
condition of any portion of the Property ground leased to Developer or any
part of the Project;
(ii) acts or neglect of Developer or any Space Sublessee.
occupant, user, licensee or invitee of any portion of the Property ground
leased to Developer or of all, or any part, of the Project; or
(Hi) any conduct, act or omission of the City, its agents or
employees (except for any claim against the City for any injury or damage to
Developer or any other person which was caused solely by the gross
negligence or wilful misconduct of City or any of its agents or employees, to
the extent not covered by insurance).
(b) Indemnity. Except as otherwise provided in this Agreement, the DOA
or the Ground Leases, Developer agrees to indemnify, defend and hold harmless the City,
its City Council,. boards and commissions, officers, agents and employees from and against:
(i) any and all actions, causes of action, obligations. losses,
liabilities, damages, injuries, claims and demands of any kind whatsoever that
may result from any claim, assertion or imposition against the City by any
person of any liability (or claim therefor) for any matter or of any kind as to
which the City is to have no liability as provided in subsection (a) of this
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Section, as well as all costs and expenses (including, without limitation,
attorneys' fees) relating thereto regardless of the merit or outcome thereof,
and
(ii) any and all non-criminal penalties, fines and prosecu-
tions, suits for abatement of any public or private nuisance and the imposition
against the City or any portion of the Property ground leased to Developer
or any part of the Project of any liens, as well as any costs or expenses
(including, without limitation, attorneys' fees) related to any such claims,
penalties, fines, prosecutions, suits and impositions, regardless of the merit or
outcome thereof,
which occur during or relate to the term of this Agreement, and which arise out of the
Developer's business or any other acts or omissions of the Developer with respect to any
portion of the Property ground leased to Developer or any portion of the Project, or out
of any use or occupancy of any portion of the Property by the Developer or any other
person during the term of this Agreement. or out of any condition of any portion of the
Property ground leased to the Developer or any portion of the Project during the term of
this Agreement, or out of any default by the Developer in the performance or observance
of any obligation on the Developer's part to be performed under this Agreement or out of
any failure by the Developer to comply with any legal requirements or applicable
agreements or covenants with respect to any use. occupancy or condition on, or about any
portion of Property ground leased to the Developer or any portion of the Project; provided,
however, that City, its City Council, boards and commissions, officers, agents and employees
shall not be entitled to indemnification for damage caused to such indemnified party by
reason of such indemnified party's own gross negligence or wilful misconduct.
27. Late Payments. If the Developer fails to pay any amount when due under
this Agreement and such failure to pay continues for five (5) days past such due date, the
Developer shall pay to City on demand, in addition to the amount due. interest equal to
the product obtained by multiplying (i) the lesser of (A) five percent over the rate
announced from time to time by Union Bank or its successor (or, if no successor, by an
equivalent California Bank) as its prime rate or (B) the maximum interest rate permitted
by law, by (ii) the amount of such unpaid item. which amount shall accrue from the day the
amount was due until the date such item is paid in full. The City and the Developer agree
that such charges are fair and reasonable compensation for costs incurred by the City when
there is default in a payment due under this Agreement. Such costs are extremely difficult
to estimate and ascertain but include processing and accounting charges. Notwithstanding
payment of such late charges, the Developer shall not be excused from any default nor shall
there be any waiver of any Developer Default under this Agreement.
28. Restriction of New Commercial Office Develooment on Airuort SumIus
Parcel. City agrees that during the term of this Agreement. - City will not -authorize or
approve the development of new structures on the Airport Surplus Parcel for non-aviation
commercial office uses.
29. Entire Agreement. This Agreement sets forth all of the agreements,
conditions and understandings between the City and the Developer relative to the Property
and the Project (except for the DDA, the Ground Leases and the CC&R's) and there are
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no promises, agreements, conditions or understandings, oral or written, expressed or
implied, between them other than as set forth or as referred to herein, other than in the
DDA, the Ground Leases and the CC&Rs.
30. No Oral Modification. No statement, action or agreement hereafter made
shall be effective to change, amend, waive, modify, discharge, terminate or effect an
abandonment of this Agreement in whole or in part unless such statement, action or
agreement is in writing and signed by the party against whom such change, amendment,
waiver, modification, discharge, termination or abandonment is sought to be enforced.
31. Table of Contents and Section Headimls. The table of contents and section
headings are inserted herein only for convenience and are in no way to be construed as
part of this Agreement, or an indicative of the meaning of the provisions of this Agreement
or the intention of the parties, or as a limitation in the scope of the particular sections to
which they refer.
32. Severability: Invalidity Of P~rticu]ar Provisions. If any term or provision of
this Agreement or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each other term and provision
of this Agreement shall be valid and enforced to the fullest extent permitted by law.
33. No Partnership or Joint Venture. Nothing in this Agreement shall be deemed
to create a partnership or JOint venture between the City and the Developer or to render
either party liable in any manner for the debts or obligations of the other.
34. Attorneys' Fees. If any suit shall be brought because of breach or alleged
breach of any covenant or condition herein contained on the part of Developer or City to
be kept or performed, the prevailing party shall be entitled to reasonable attorneys' fees in
addition to court costs and any and all other costs recoverable in said action. Such
attorneys' fees shall be deemed to have accrued on the commencement of such action and
shall be paid whether or not such action is prosecuted to judgement. In any case where this
Agreement provides that the City or the Developer is entitled to recover attorneys' fees
from the other, the party so entitled shall be entitled to recover an amount equal to the
fair market value of services provided by attorneys employed by it as well as any attorneys'
fees actually paid by it to third parties.
35. Exhibits. All exhibits attached hereto and/or referred to in this Agreement
are incorporated herein as though set forth in full.
36. Construction. The parties agree that each party and its counsel have reviewed
and revised this Agreement and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not apply in the interpretation of this
Agreement or any amendments or exhibits thereto.
37. Governing u,w. This Agreement shall be governed exclusively by the
provisions hereof and by the laws of the State of California.
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38. CounteI"!'arts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and such counterparts shall constitute but one and
the same instrument.
39. City's Rights to Defense. The City shall have the right to approve counsel
retained by Developer to defend any claim, action or proceeding which the Developer is
obligated under this Agreement to defend. In the event that any conflict of interest results
during the mutual representation of the City and the Developer in defense of any such
action, or in the event of the City's reasonable dissatisfaction with counsel retained by the
Developer, the City shall have the right, at the Developer's cost and expense, and without
its consent, to have the City Attorney undertake and continue the City's defense, or with
the Developer's approval, which shall not be unreasonably withheld or delayed, to select
separate outside legal counsel to undertake and continue the City's defense.
40. Binding Effect. It is intended and determined that the provisions of this
Agreement shall constitute covenants which shall run with the land comprising the Property
for the benefit thereof and that the burdens and benefits thereof shall bind and enure to
the benefit of all successors-in-interest to the parties hereto, including without limitation,
the City and its assigns if for any reason the Developer's interest in this Agreement is
transferred to the City.
41. Failure to Develo!l. Except as provided in this Agreement, the DDA or the
Ground Leases, the failure by the Developer to develop all or any portion of the Project
shall not result in a default by the Developer under this Agreement.
42. Agreement to Coo!lera1~. In the event of any legal action instituted by a
third party or other governmental entity or official challenging the validity of any provision
of this Agreement, the parties hereby agree to cooperate in defending said action.
43. No Third Party B~neficiary. Nothing in this Agreement shall create any
rights, as a third party beneficiary or otherwise, in any person or entity not a party to this
Agreement.
44. Constitution of Fees. City and Developer mutually acknowledge and agree
that the fees to be paid by Developer which are specifically set forth in this Agreement
constitute "fees collected under development agreements adopted pursuant to Article 2.5
(commencing with Section 65864) of Chapter 4" for the purposes of Government Code
Section 66000(b).
45. Sunset Park Neii:!hborhood Traffic Protection Plan Adontion. Not later than
two (2) years following the Effective Date, the City Council shall adopt and the City shall
implement a plan ("Neighborhood Traffic Protection Plan") of measures designed to
minimize vehicle trips cutting through the neighborhood of the City bounded by Uncoln
Boulevard on the west, Pico Boulevard on the north, and the City limits on the east and
south ("Sunset Parkj. Prior to the adoption of the Neighborhood Traffic Protection Plan
for Sunset Park, the City shall conduct community meetings and workshops in the Sunset
Park area for the purpose of consulting with and obtaining guidance from the residents of
the area in the formation of the Neighborhood Traffic Protection Plan and the City shall
conduct at least one duly-noticed public hearing.
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46. Fundimz for NeilZhborhood Traffic Protection Plan and for Recreational
Im!>rovements to AlI"!>ort Sui!>lus Parcel. The City agrees to fund the following
improvements either from revenues available to the City from sources other than the
Project or from the revenues from the first three (3) years of the Project as follows:
(a) the improve nents and measures delineated in the Neighborhood Traffic
Protection Plan; and
(b) improvem~nts to the Airport Surplus Parcel, consistent with an
improvement program approved by the City Council pursuant to a public process to
be determined, includi ng appropriate environmental review, to establish various
recreational uses such as soccer field(s) and baseball diamond(s).
47. Redesign of Internal Access to Airport. Developer agrees to cooperate with
the City in a good faith effort :0 redesign and modify the internal access road to the Santa
Monica Municipal Airport from the Project in order to facilitate equal or improved internal
access to and from the Airpm t from the Project if such redesign is deemed desirable and
feasible by the City and if the redesign satisfies all of the following conditions:
(a) The City provides evidence reasonably satisfactory to the Developer that
the redesign does not (onstitute a Moderate Change or Major Change pursuant to
this Agreement or Obl ains or commits to obtain approval of the redesign as a
Moderate Change or ~ fajor Change pursuant to this Agreement.
(b) The redesiJ;n does not result in any material adverse impact to (i) the
ingress to or egress it om the Project and Bundy Drive, (ii) the internal traffic
circulation system of :he Project, or (iii) the orientation, layout design of the
Buildings, the Parking Structures and the common areas of the Project.
(c) The rede:iign does not have any material adverse effect on the
environmental impacts of the Project studied in the EIR nor the measures studied
and recommended thel ein to mitigate said environmental impacts.
(d) The redesign does not result in any material delay or increase in the cost
to the Developer of: (i) design. construction or development of any improvements
for the Project, including, without limitation, anyon-site traffic improvements or the
internal circulation system, (ii) operation and maintenance of the Project, or (iii) the
performance or construction of the mitigation measures by the Developer under this
Agreement.
48. Requirement to Execute Documents. City and the Developer shall execute
this Agreement within seven days after the later to occur of (i) the effective date of the
Oty Ordinance approving this Agreernentt or (ii) thirty (30) days after the filing of the
Notice of Determination for the EIR, provided that no lawsuit challenging the approval of
the EIR has been filed within such thirty (30) day period.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CITY:
CITY OF SANTA MONICA:
By:
JOHN JALTLT
Its City Manager
ATTEST:
City Clerk
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APPROVED AS TO FORM:
Robert M. Myers, CIty Attorney
DEVELOPER:
RAL:ncv:em:RDGDAFNS.336
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RELIANCE DEVELOPMENT GROUP, INe.,
a Delaware corporation
By:
HENRY A LAMBERT
Its President
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EXHIBIT "AI"
DEVELOPMENT AGREEMENT between
lHE CITY OF SANTA MONICA and RELIANCE DEVEWPMENT GROUP. INC.
Lellal Descriotion of Aimort Residuall..and
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Those portions of Lots 127, 128, 129, 154 to 164, inclusive, 169 and 170, all of Lots 130 to
153, inclusive, all in Tract No. 10529, in the City of Santa Monica, County of Los Angeles,
State of California, as per map recorded in Book 160, Pages 21 to 25, inclusive, of Maps,
in the office of the County Recorder of said County; that portion of Centinela Avenue,
vacated, and that portion of Lots 2 to 5, inclusive, of Ocean Park Heights, in the City of
Los Angeles, in the County of Los Angeles, State of California, as per map recorded in
Book 5, Page 130 of Maps, in the office of the County Recorder of said County, all
included within the following described lInes:
Beginning at the intersection of the Southwesterly line of Bundy Drive, with the
Southeasterly line of said Lot 164, as shown on Map of Tract No. 17636, recorded in Book
482, Page 33, of Maps, of said County; thence along the Southeasterly line of said Lots 164,
169 and 170, as follows:
South 5'? 33' 26" West 2004.31 feet and South 57049' 34" West 393.00 feet; thence North
320 10' 26" West 230.00 feet; thence North 51046' 49" East 251.15 feet; thence North 320
10' 26" West 373.70 feet; thence North 440 38' SO" East 705.00 feet, to the beginning of a
tangent curve concave Southerly, and having a radius of 54.00 feet; thence Easterly and
Southeasterly along said curve, through a central angle of 90000' 00" an arc length of 84.82
feet; thence tangent to said curve South 450 21' 10" East 110.00 feet, to the beginning of
a tangent curve concave Northerly and having a radius of 87.50 feet; thence Southeasterly
and Easterly along said curve through a central angle of 900 00' 00", an arc distance of
137.44 feet; thence tangent to said curve North 440 38' 50't East 636.50 feet, to the
beginning of a tangent curve concave Northwesterly and having a radius of 241.00 feet;
thence Northeasterly along said curve through a central angle 2go 42' 09", an arc distance
of 124.94 feet to the beginning of a reverse curve concave Southeasterly and having a radius
of 209.00 feet; thence Northeasterly along said curve through a central angle 2go 42' 0911
an arc distance of 108.35 feet; thence tangent to said curve North 44Q 38' 50" East 575.65
feet to the Southwesterly line of said Bundy Drive; thence Southeasterly along the
Southwesterly line of said Bundy Drive through its various courses and curves, to the point
of beginning.
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EXHIBIT uA2"
DEVELOPMENT AGREEMENT between
THE CITY OF SANTA MONICA and RELIANCE DEVELOPMENT GROUP. INC.
Legal Descriotion of Prooertv
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That part of Lots 127 to 164, inclusive, 169 and 170 in Tract Number 10529, City of Santa
Monica, Book 160 of Maps, pages 21 to 25, inclusive, Records of Los Angeles County,
California AND that part of Centinela Avenue, abandoned, AND that part of lots 2 to 5,
inclusive, of Ocean Park Heights, City of Los Angeles, Book 5 of Maps, page 130, Records
of Los Angeles County, California, being more particularly described as follows:
BEGINNING at the intersection of the southwesterly line of Bundy Drive (said line being
40.00' distantJrom the center line of Bundy Drive) with the southeasterly line of said Lot
164, as shown on Map of Tract Number 17636, Book 482 of Maps, page 33 of said County;
Thence South 5r 33' 261. West along the southeasterly line of said Lots 164, 169 and 170
a distance of 1527.30 feet;
Thence North 45021' 10" West a distance of 423.18 feet;
Thence North 44038' 50" East a distance of 155.00 feet;
Thence North 450 21' 10" West a distance of 329.78 feet;
Thence North 44038' 50" East a distance of 88.50 feet to a curve whose radius bears South
450 21' 10" East a distance of 54.00 feet;
Thence northeasterly, east and southeasterly along said curve through a central angle of
900 00' 00" a distance of 84.82 feet to a point of tangency;
Thence South 450 21' 10" East a distance of 110.00 feet to a curve whose radius bears
North 440 38' 50" East a distance of 87.50 feet;
Thence southeasterly, easterly and northeasterly along said curve through a central angle
of 900 00' 00" a distance of 137.44 feet to a point of tangency;
Thence North 440 38' 50" East a distance of 636.50 feet to a curve whose radius bears
North 450 21' 10" East a distance 241.00 feet;
Thence northeasterly along said curve through a central angel of 290 42' 09" a distance of
124.94 feet to a reverse curve whose radius bears South 750 03' 19" East a distance of
209.00 feet;
Thence northeasterly along said curve through a central angle of 290 42' 09" a distance of
108.35 feet to a point of tangency;
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Thence North 44038' 50" East a distance of 575.36 feet to the southwesterly line of Bundy
Drive (said line being 40.00 feet distance from the centerline of Bundy Drive) and the
beginning of a non-tangent curve whose radius bears North 770 27' 24" East a distance of
2040.00 feet;
Thence southerly and southeasterly along said curve and said southwesterly line of Bundy
Drive through a central angle of 190 47' 53" a distance of 704.90 feet to a point of
tangency;
Thence continuing along said southwesterly line of Bundy Drive South 320 20' 29" East a
distance of 78.50 feet to the boundary line common to the cities of Santa Monica and Los
Angeles;
Thence continuing along said boundary line South 340 31' 19" West a distance of 184.10
feet;
Thence South sr 33' 26" West a distance of 7.00 feet to the TRUE POINT OF
BEGINNING.
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EXHIBIT "A3"
DEVEWPMENT AGREEMENT between
TIlE CITY OF SANTA MONICA and RELIANCE DEVELOPMENT GROUP. INC.
Lel!al Descrintion of Aimort Sumlus Parcel
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That part of Lot 170 in Tract Number 10529, City of Santa Monica, Book 160 of Maps,
Pages 21 to 25 inclusive, Records of Los Angeles County, California, being more
particularly described as follows:
Commencing at the intersection of the southeasterly line of Lot 164 in said Tract with the
southwesterly line of Bundy Drive (said line being 40.00 feet distant from the center line
of Bundy Drive) as shown on Map of Tract Number 17636, Book 482 of Maps, Page 33,
Records of Los Angeles County;
Thence South 570 33' 26" West along the southeasterly line of Lots 164, 169 and 170 in
said Tract Number 10529 a distance of 1527.30 feet to the TRUE POINT OF
BEGINNING;
Thence continuing South 5T 33' 26" West a distance of 477.77 feet;
Thence South 570 49' 34" West a distance of 393.00 feet;
Thence North 320 10' 2611 West a distance of 230.00 feet;
Thence North 510 46' 49" East a distance of 251.15 feet;
Thence North 320 10' 26" West a distance of 373.70 feet;
Thence North 440 38' 50" East a distance of 616.50 feet;
Thence South 450 21' 10" East a distance of 329.78 feet;
Thence South 440 21' 50" West a distance of 155.00 feet;
Thence South 450 21' 10" East a distance of 423.18 feet to the TRUE POINT OF
BEGINNING.
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EXHIBIT "B"
DEVELOPMENT AGREEMENT between
THE CITY OF SANTA MONICA and RELIANCE DEVEWPMENT GROUP. INC.
Proiect Site Plan
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EXHIBIT "e'
DEVELOPMENT AGREEMENT between
THE CITY OF SANTA MONICA and RELIANCE DEVELOPMENT GROUP. INC.
D~sign Features
The Project shall be in compliance with the following design standards:
1. Reflective Materials. No more than 25% of the surface area of any facade
on any building shall contain black or mirrored glass or other mirror~1ike material that is
highly reflective. Materials for roofing shall be of a nonreflective nature. Glazing on the
ground floor street frontage facade shall be cleaT untinted glass.
2. Fence. Wall. Hedge. Flagpole. Any fence, wall) hedge, or flagpole shall
comply with the following standards:
(a) Fences, walls, or hedges shall not exceed six feet in height when
located on a property line. Fences or walls may extend up to eight feet in height upon the
written consent of all current properties owner(s) and residents living on the parcel adjacent
to the wall. The consent shall be on the form approved by the Director of Planning and
shall be rued with the City prior to installation of the fence or wall.
(b) Fences, walls, or hedges shall not exceed 42 inches in height when
located between Bundy Drive and the buildings located in Phase 1.
(c) Fence, wall, or hedge height shall be measured from the finished grade
on the side of the fence, wall or hedge, which faces the perimeter of the Property and shall
be measured in a continuum at each point along the fence, wall, or hedge.
(d) Free-standing flagpoles may not exceed the maximum height permitted
for the Project.
3. Hazardous Visual Obstructions. The Project shall not contain any fence, wall,
hedge, tree, plantings, or other obstructions, to obscure or block the visibility of drivers of
automobiles entering or exiting a driveway, parking lot, or other vehicle accessway or to
constitute an unreasonable or unnecessary hazard to persons lawfully using an adjacent
sidewalk, street, or other right~of-way. Any fence, wall, hedge tree, planing, or other
obstructions shall be located at least 5 feet from the closest intersection of any parcel line
with the street, driveway, or garage entrance.
4. Screening Stor~ge Areas. All storage of materials, wares, crates, bottles, or
similar items necessary to or part of a business or commercial operation shall be screened
from view on at least three sides by a solid opaque impact-resistant wall not less than 5 feet
in height and not more than 8 feet in height and on the fourth side by a solid opaque
impact-resistant gate not less than 5 feet in height or more than 8 feet in height or,
alternatively, such other material or design approved by the Architectural Review Board.
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5. Screening Mechanical Equipment. All mechanical equipment that extends
more than 12 inches above the roof parapet shall be screened from view. Equipment shall
be screened as viewed from a horizontal plane on all sides with an impact resistant wall.
6. Refuse and Screening Of Refuse Storage Areas. The Project shall provide and
maintain one or more trash receptacles on the Property. The trash receptacles shall be of
sufficient size to accommodate the trash generated by the uses in the Project consistent with
guidelines prepared by the Department of General Services. All outdoor storage of trash,
garbage, refuse, and other items or material intended to be discarded or for collection shall
be screened from public view on at least three sides by a solid opaque impact-resistant wall
not less than S feet in height or more than 8 feet in height, and on the 4th side by a solid
opaque resistant gate not less than 5 feet in height or more than 8 feet in height or of such
other material or design approved by the Architectural Review Board. The gate shall be
maintained in working order and shall remain closed except when in use. All outdoor
storage for refuse shall be located not more than 10 feet from the roadway which is closest
to the refuse collection point.
7. Drainag~. The Project must drain to the street or directly into a public storm
drainage system in a manner approved by the Department of General Services. No surface
drainage may be discharged into abutting properties.
8. Solar Energy Design Standards. The following standards shall apply to the
design of all solar energy systems included in the Project:
(a) Roof-mounted solar collectors shall be placed in the location least
visible from a public right-of-way without reducing the operating efficiency of the collectors.
Wall-mounted and ground-mounted solar collectors shall be screened from public view.
(b) When feasible, collectors shall be integrated into the design of a
building. Structural support for the collectors shall be screened in a manner that is
compatible with the design of a building.
(c) Appurtenant equipment, particularly plumbing and related fixtures,
shall be installed in an attic or basement where feasible.
(d) Large accessory fixtures which must be exposed (e.g., storage tanks)
shall be screened where possible through architectural features that harmonize with other
design elements of the structure.
(e) Storage tanks shall not be visible from any public right-of-way.
(f) Exterior surfaces shall have a matte finish and shall be
color-coordinated to harmonize with roof materials or other dominant colors of the
structure.
9. Lighting. All outdoor lighting associated with the Project shall be shielded
and directed away from surrounding residential uses. Such lighting shall not exceed 0.5
foot-candles of illumination beyond the Property and shall not blink, flash, oscillate or be
of unusually high intensity of brightness.
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All surface parking areas of five or more spaces shall have a 1.0 foot-candle
illumination per square foot of parking area for visibility and security during hours of
darkness. Wiring for the illumination shall be underground. Searchlights for advertising
purposes and overhead rooftop lighting shall be prohibited between midnight and dawn.
10. Glare. Every use shall be so operated that any significant, direct glare
incidental to the operation of the use shall not be visible beyond the boundaries of the
Property.
11. s.1.gm. All signs on the Property shall comply with the provisions of Article
9 of the Santa Monica Municipal Code.
12. Reauired Landscaoe For ExteriQr Paved Areas. A minimum of 10% of the
total exterior paved area thai accommodates vehicular traffic including accessways,
driveways, loading areas, and service areas shall be devoted to landscaped islands,
peninsulas, or medians distributed throughout the paved area. A minimum of one tree for
each 1,200 square feet of paved area that accommodates vehicular traffic shall be provided
and maintained.
13. Landscane Maintenance and Protection.
(a) All landscaped areas shall be protected from vehicular damage by
raised concrete or other curbing of at least six inches in height.
(b) All newly planted trees shall be planted in permeable soil.
(c) Low volume irrigation systems with automatic controllers shall be
required. Such irrigation includes, but is not limited to, low volume sprinkler heads, drip
emitters, and bubbler emitters.
(d) Sprinkler spacing for both turf and non-turf areas shall be 50% of the
diameter of the throw.
(e) Anti-drain valve shall be installed in sloping areas with elevation
differences of more than 5 feet.
(f) Landscape materials which have different watering needs shall be
irrigated by separate control valves. Water coverage shall be limited to plant areas only.
(g) Automatic controllers shall be set to water between 5:00 p.m. and
10:00 a.m. to reduce evaporation.
(h) An annual maintenance program with seasonal water schedule shall be
required to assist any landscape manager. The water schedule shall include run time and
frequency of irrigation for planted areas with similar characteristics. The watering period
shall not exceed the point at which runoff begins. A maintenance program shall not be
required for systems with soil moisture sensors that are installed and properly adjusted.
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(i) A minimum of PVC Schedule 40 or equivalent shall be used for main
lines and under driveway areas, and a minimum of PVC Schedule 200 or equivalent shall
be used for lateral lines.
(j) All landscaped areas shall be permanently maintained and kept free
of weeds, debris, and litter. All plant materials shall be maintained in a healthy growing
condition and diseased or dead plant materials shall be replaced, in kind, pursuant to the
approved plans within 30 days.
14. Water Conservation Landscaoim!.
(a) The maximum area permitted for turf shall be 20% of the total area
landscaped on the site. Higher percentages may be permitted when turf is an essential part
of the development as determined by the Architectural Review Board. Large areas of turf
shall use soil moisture sensors as part of the irrigation system.
(b) Turf shall not be permitted in areas difficult to irrigate, such as
sidewalk strips, slopes, or narrow pathways.
(c) Turf usage shall only be permitted when used for highly visual and
functional use areas. Lower water usage turn or warm season grasses are recommended
for aU turf areas.
(d) Plants used in non-turf areas shall be water conserving plant material.
Flowering ornamentals that are not low water using plants shall be counted as turf when
calculating turf areas. Appropriate low water plant varieties shall be approved by the
Director of General Services.
(e) Fresh water bodies and fountains where water is sprayed into the air
shall be prohibited. The Director of general Services may vary this requirement when the
water to be used is not fresh water.
15. Design Standards for TYRO ~nd Microwave Antennas.
(a) Any TVRO or microwave antenna shall be installed, modified, and
maintained in accordance with the following standards:
(i) Only one antenna is permitted per Phase.
(il) The diameter of a TVRO antenna shall not exceed the
3.0 meters and the diameter of a microwave antenna shall not exceed 1.0
meters.
(iii) The antenna shall comply with all height and setback
requirements specified for buildings within the Project.
(iv) The antenna shall be finished in a color to neutralize and
blend it with the immediate surroundings.
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(v) The installation shall be located in such a way as to
prevent obstruction of the antenna's reception window from potential
permitted development on adjoining parcels.
(vi) A building permit shall be obtained prior to installation.
(vii) The display of signs or any other graphics on an antenna
is prohibited.
(viii) Subject to the approval of a conditional use permit, the
following may be permitted:
<A) Two or more antennas.
(B) An antenna with a diameter greater than that
permitted by this section.
(C) Placement of the antenna in any required setback
provided the Developer demonstrates that compliance with this Section would
result in interference or technical infeasibility beyond the control of the
Developer.
(D) Installation of the antenna in excess of the
permitted height provided the Developer demonstrates that compliance with
this Section would result in interference or technical infeasibility beyond the
control of the developer.
(E) Any requirement imposed upon the installation
of an antenna shall not operate to impose unreasonable limitations on or
prevent reception or operate to impose costs on the users of such antennas
that are excessive in light of the purchase and installation costs of such
antennas.
(b) The installation of any satellite uplink antenna shall be subject to
review and approval of a conditional use permit.
(c) Any stand alone antenna shall be prohibited.
16. Handicap Access. The Developer design the Project to provide access for the
disabled in accordance with all applicable laws, including those set forth in Title 24, Part
2 of the California Administrative Code.
17. Barrier Along Southern Border of Project. The Developer shall provide a
wall, fence, or other barrier to the satisfaction of the City along the southern property line
of the Project to prevent motorists and pedestrians from traveling between the Project and
the neighborhood to the south. The wall, fence or barrier shaU provide for access to the
Lear Sieglar parking lot south of the Project.
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18. Foundation Design. In preparing the foundation design for any building or
parking structure in the Project, the Developer shall provide for:
(a) the removal of all existing paving, vegetation and debris from the
sudace of the parcel prior to excavation;
(b) the removal of debris and organic material from the excavated soil
prior to reusing it as fill; and
(c) the recornpaction of all fill and natural soils used for foundation
support to 90% of maximum obtainable density.
19. Loading. The Developer shall provide three (3) Loading Spaces, as defined
in the Zoning Ordinance in effect on the Effective Date, for each building in the Project
of 100,000 square feet or more.
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EXHIBIT liD"
DEVELOPMENT AGREEMENT between
THE CITY OF SANTA MONICA and RELIANCE DEVEWPMENT GROUP. INC.
Rel!uirements of the G~neral Services Department
OFF-SITE TRAFFIC IMPROVEMENTS
1. The Developer shall design and construct the following street and intersection
improvements in the City of Santa Monica, the City of Los Angeles and Culver City.
Phase 1
· Bundv Drive & Santa Monica Freewav Eastbo\Jnd on-ramo - - Cut-back the
raised. median on the northbound Bundy Drive approach and re-stripe both
the northbound and southbound approaches to provide a second left-turn lane
in the southbound approach. This would result in dual left-turn lanes and two
through lanes in the southbound approach.
· Bundy Drive & Ocean Park Boulevard - - Re-stripe the exterior eastbound
through lane to a shared through/right-turn lane.
· Bundy Drive & National Boulevard - - Widen (and re-stripe both approaches)
on Bundy Drive between Airport Avenue and a point north of National
Boulevard on the west side (using Santa Monica Municipal Airport Property)
to provide three through lanes on both the northbound and southbound
approaches. This would result in three through lanes and an exclusive right-
turn lane on the northbound approach and two left-turn lanes and three
through lanes on the southbound approach.
· Bundy Drive & Airport Avenue - - Widen (and re-stripe both approaches)
Bundy Drive between National Boulevard and a point 400 feet south of
Airport Avenue on the west side to provide three through lanes on both
Bundy Drive approaches. This would result in three through lanes and two
exclusive right-turn lanes on the southbound approach and one left-turn lane
and three through lanes on the northbound approach. Widen Airport Avenue
to provide three left-turn lanes and a right-turn lane.
· Centinela Avenue & Palms Boulevard - - Re-stripe both Centinela Avenue
approaches to provide a southbound right-turn lane.
· Sawtelle Boulevard & National Boulevard - - Widen both the northbound and
southbound Sawtelle Boulevard approaches to add an exclusive right-turn
lane. This would result in a single left-turn lane, two through lanes and a
single right-turn lane for both the northbound and southbound Sawtelle
Boulevard approaches and a single left-turn lane, two through lanes and a
shared through/right-turn lane for the National Boulevard eastbound
approach. Widen the eastbound National Boulevard approach to the San
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Diego Freeway Southbound on-ramp to add a third through lane. The
Developer and the City of Santa Monica mutually recognize that the
eastbound curb lane must operate as an exclusive right turn lane until the
San Diego Freeway southbound on-ramp approach is widened in connection
with Phase 2.
Phase 2
23rd Street & Ocean Park Boulevard - - Re-stripe and remove parking on
eastbound Ocean Park Boulevard approach to provide two through lanes and
a right turn lane.
· Centinela Avenue & S(.Inta Monica Freewav westbound on/off ramDS - -
Remove the existing raised median and re-stripe the northbound Centinela
Avenue approach to provide a second exclusive left-turn lane resulting in a
dual left-turn lane and one through lane. In conjunction with this
improvement, the median on the westbound on-ramp should be cutback to
better facilitate the northbound dualleft-tum lane.
· Centinela Avenue & Ocean Park Boulevard - - Remove the existing raised
center median on the eastbound Ocean Park Boulevard approach and re-
stripe both eastbound and westbound approaches to provide a second
eastbound left-turn lane. This would result in two left-turn lanes, one through
lane, and a shared through/right-turn lane on the eastbound approach. In
addition, the signal should be modified to provide a fully-actuated left-turn
east~west phase resulting in a three-phase signal.
· Bundy Drive & Olympic Boulevarq - - Widen the northbound Bundy Drive
approach to provide an exclusive right-turn lane resulting in a single left-turn
lane, three through lanes and a single right-turn lane.
· Centinela Avenue & Rose Av~nue - - Re-stripe both Centinela Avenue
approaches to provide a southbound right-turn lane.
· San Diel!o Freewav southbound on-ramo & National Boulevard - - Widen the
eastbound Nation3.I Boulevard approach to provide an exclusive right-turn
lane resulting in one through lane, one shared through/right-turn lane and a
single right-
turn lane. In conjunction with this improvement, cutback the southbound on-
ramp curb lane to better facilitate the eastbound dual right-turn lanes.
· San Diego Freeway northbound off-ram!> & National Boulevard - - Re-stripe
off-ramp to provide a left-turn lane and a shared left/right-turn lane.
Phase 3
· Barrington Avenue &. National Boulevarc;l - - Re-stripe the southbound
Barrington Avenue approach to provide an exclusive right-turn lane.
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· Barrington Av~m,JC &. Galcway Boulevard - Re-stripe the northbound
Barrington Avenue approach to provide a second left-turn lane resulting in
two left-turn lanes, two through lanes, and a right-turn lane. The signal
should also be modified to provide a left-turn east/west, protected phase
resulting in a three-phase signal.
2. The Developer shall construct and install aU necessary equipment at each of the
following intersections to link those intersections to the City of Los Angeles' Depart~
ment of Transportation Automated Traffic Surveillance and Control (A TSAC)
system:
Phase 1
· Each of the following intersections located in the Oty of Los Angeles:
Bundy Drive and Ocean Park Boulevard
Bundy Drive and National Boulevard
Bundy Drive and Airport Avenue
Centinela Avenue and Palms Boulevard
Centinela Avenue and Venice Boulevard
· Each of the following intersections located in Culver City:
Centinela Avenue and Washington Place
Centinela Avenue and Washington Boulevard
Phase Z
· Each of the following intersections located in the Oty of Los Angeles:
Centinela Avenue and Rose Avenue
Bundy Drive and Pico Boulevard
OTHER 1RAFFIC
3. The Developer shall maintain a two lane, improved, paved, and constructed roadway
from Bundy/Centinela to the Airport Administration Building without interruption
throughout construction of the Project and thereafter.
4. The Developer shall maintain a two lane access roadway to the Lear Astronics
parking lot without interruption throughout construction of the Project and
thereafter.
5. No Project traffic (either commuter or construction) shall be permitted onto the
Airport perimeter roadway or the Airport taxiways.
6. The Developer shall obtain all permits and approvals for the use, restriction
or closure of any public streets which may be required in connection with the
construction of the Project or the Off-Site Traffic Improvements.
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7. The Developer shall maintain access to the building at 3300 Airport Avenue through
April 30, 1990.
ENGINEERING
8. The Developer shall prepare civil engineering plans for all on-site and off-site traffic
improvements, infrastructure improvements and utilities located the City of Santa
Monica. Such plans shall be submitted to the City Engineer for review and approval
in accordance with standards and conditions which are consistent with those imposed
on similar projects. The Developer shall prepare civil engineering plans for all off-
site improvements located in the City of Los Angeles and Culver City. Such plans
shall be submitted to the appropriate Los Angeles City or Culver City department
or agency, as applicable, for review and approval.
9. The Developer shall submit for the review and approval by the Director of General
Services a shoring plan, where shoring may be requiredJ to be prepared by a
competent registered engineer. The Developer shall pay a fee for tiebacks in the
public right-of-way which shall be $300 for each tieback that extends 20 feet or less
below grade and $150 for each tieback that extends greater than 20 feet below
grade.
10. The Developer shall submit for review and approval by the Director of
General Services a comprehensive soil erosion control plan prepared by a
competent registered engineer. The plan shall provide specific designs,
measures, and improvements that will mitigate potential gullying and sediment
caused by water run-off from the site both during construction and after the
Project is complete.
WATER AND WASTEWATER
11. The Developer shall install new sewer mains within the Project which shall be built
to City standards and which shall additionally serve existing facilities at the Santa
Monica Municipal Airport south of the runway as of the Effective Date. The
location and size of these sewers shall be determined when the location, size, and
extent of on-site Recycling System, discussed in the Agreement are finalized. The
Developer shall improve the existing sewer line below Airport Avenue extending
from the Project to the sewer line located below 23rd Street and Walgrove Avenue
on the west side of the Airport to the extent necessary to serve the Project (or, with
the consent of the City Engineer extending from the Project to the existing sewer
line located along the western boundary of the Property). New on-site sewer mains
shall connect to the City system below Airport Avenue west of the development.
The Developer shall grant to the City easements and access to all sewers and
appurtenances which are to become a part of the City sewer system.
12. The Developer shall install a new 12" water main which shall be built to City
standards below the service road along the northerly boundary of the Project from
the west end of the Project to approximately the Los Angeles City Limits, where it
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will reconnect with the existing 12" main around the east end of the Airport runway.
The Developer shall pay the cost of relocating any Airpon service connections to the
new main as required, and of abandoning the old main. The City shall have the
option of keeping title to any of the abandoned materials, but shall not be required
to dispose of any abandoned materials not wanted.
The Developer shall install to Oty standards allan-site mains, service connections,
meters and backflow prevention devices which may be required for water service to
the Project.
The Developer shall grant to the City easements and access to all water mains and
appurtenances which are to become part of the City water distribution system.
13. The Developer shall install to City standards fire hydrants along the northerly
perimeter water main and within the Project site as required by the Director of
General Services and the Fire Department.
14. Water and sewer utilities shall be maintained to serve the Airport without
interruption throughout construction of the Project and thereafter.
MISCELLANEOUS
15. Power, gas, and telephone utility services shall be maintained to serve the Airport
without interruption throughout construction of the Project and thereafter, except
such interruptions which receive the prior written approval of the Santa Monica
Airport Director.
16. The Developer shall install street lighting improvements as required by the Director
of General Services. All street lighting improvements must be in conformance with
the llIuminating Engineers Society Standards for collector streets. Project street
lighting shall not create glare for pilots landing at or taking off from the Airport.
17. The Developer shall prepare and submit a refuse collection site and access plans to
be reviewed and approved by the Director of General Services.
18. The Developer shall provide an on-site recycling system within each building
designed to capture aluminum cans, office paper, newspaper, glass bottles,
corrugated paper, and other waste products for collection by a recycling agency. The
on-site system shall accommodate the use by businesses located in the Project as well
as provide drop-off recycling areas for use by employees who bring recyclable
material to the Project for collection.
The Developer shall prepare a plan to minimize organic waste that includes the
composting of landscaping wastes at an off-site location if a compost site is provided
by the City within 1000' of the Project or legally divided parcel therein.
19. The Developer shall construct or install one or more covered, but not enclosed, bus
stop shelter(s) along the sidewalk adjacent to Bundy Drive bordering the Project
subject to approval by the Director of Transportation for the City of Santa Monica
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and in cooperation with the appropriate agency in the City of Los Angeles. In
designing the bus shelter(s), the Developer shall consider pollution levels adjacent
to the Project. The bus sheIter(s) shall be within the public right of way on a site
specially dedicated for this purpose. The bus shelter(s) shall be designed to
complement the design of the Project.
20. The Developer shall plant street trees on the portion of the Property located along
Bundy Drive in accordance with City of Los Angeles regulations concerning street
tree plantings along that street.
21. The Director of General Services and Developer may agree upon substitute
improvements for any of the foregoing (except those improvements and mitigations
which are required by the Environmental Impact Report for the Project), which are
designed to improve traffic, utility, drainage, or erosion conditions related to the
Project so long as the total cost of such substitute improvements does not exceed the
total estimated cost of the deleted requirements, computed on the date upon which
a contract is entered into for the substitute improvements.
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EXHIBIT "E"
DEVELOPMENT AGREEMENT between
THE CITY OF SANTA MONICA and REUANCE DEVELOPMENT GROUP. INC.
Off-Site Traffic Improvem~nts and Traffic Capital Costs
1. Desien and Construction of Off-Site Traffic Imorovements. Except as
otherwise specifically provided in the Agreement, as hereinafter defined, or this Exhibit "E"
thereto, the Developer, at its sole cost and expense, shall design and construct the Off-Site
Traffic Improvements which are listed in Exhibit "D" to the Agreement for each Phase of
the Project in connection with the development by the Developer of such Phase.
2. Definitions. For purposes of this Exhibit "E", the following terms and phrases
shall be interpreted as hereinafter defined, unless the context clearly indicates a contrary
intent of the parties:
Agreement: The Development Agreement entered into between the City of
Santa Monica and Reliance Development Group to which this Exhibit "E" is attached and
incorporated therein.
Applicable Jurisdiction: For the Los Angeles Improvements, the City of Los
Angeles and for the Culver City Improvements, Culver City.
Applicable Jurisdiction Selected Contractor: As defined in Section 5(e) of
this Exhibit "E".
Approved Contractors: As defined in Section 3(c) of this Exhibit t'E".
Approved Plans: As defined in Section 3(c) of this Exhibit "E".
Culver City Imnrovements: Those Off-Site Traffic Improvements to be
located in Culver City. -
Excess Traffic Capital Costs: As defined in Section 8(a)(ii) of this Exhibit
"En..
Final Certificate: The Certificate of Occupancy issued by the Oty of Santa
Monica for the last building or parking structure to be constructed in the last Phase of the
Project.
First Certificate: The first Certificate of Occupancy issued by the City of
Santa Monica for a building or parking structure in a Phase of the Project.
First Certificate Issuance Date: The date upon which the First Certificate for
a Phase is issued by the City of Santa Monica.
Imorovements Contract: As defined in Section 5(e) of this Exhibit "E".
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Los Angeles Im!'rovements: Those Off-Site Traffic Improvements to be
located in the City of Los Angeles.
plan Revision~: As defined in Section Sea) of this Exhibit liE".
Rejected Im!'rovements: As defined in Section 5(f) of this Exhibit "E".
~ejected Im!'rovements Lett~r of Credit: As defined in Section S(f) of this
Exhibit "E".
Exhibit "E".
Reserved Improvements: As defined in Section 5(c)(i) of this Exhibit "E".
Reserved Improvements Payment: As defined in Section 5( c)(i) of this
Santa Monica Im!Jrovements: Those Off-Site Traffic Improvements to be
located in the City of Santa Monica.
Santa Monica Improv~ments Contract: As defmed in Section 4(b) of this
Exhibit "E".
Selected Contractor: As defined in Section 4(b) of this Exhibit "E".
Traffic Ca!Jital Costs: The total costs, which are properly characterized as
capital expenditures in accordance with generally accepted accounting principles consistently
applied, and which are demonstrated by the Developer to have been expended or paid by
the Developer or for the account of the Developer for the following Off-Site Traffic
Improvements and Traffic Mitigation Parking Spaces and not reimbursed or reimbursable
to the Developer by third parties:
(i) The following dIrect costs properly attributable to
construction of the Off-Site Traffic Improvements:
(A) All reasonable fees and costs paid to engineers
and engineering firms in connection with the design of the Off-Site Traffic
Improvements.
(B) All right of way acquisition costs which have been
reasonably approved by the City of Santa Monica prior to the expenditure of
such costs by the Developer. With respect to each particular right of way
acquisition, the Developer shall submit to the City of Santa Monica an initial
written recommendation of the proposed maximum acquisition cost and, if the
Developer subsequently desires to increase the proposed maximum acquisition
cost, Developer shall submit a supplemental written recommendation. The
City of Santa Monica shall review the initial written recommendation within
sixty (60) days and any supplemental written recommendation within ten (10)
days following submission to the City of Santa Monica and shall approve the
proposed maximum cost for each right of way acquisition in those
recommendations WIthin those time periods, unless the City of Santa Monica
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can establish that the proposed maximum acquisition cost is excessive under
the circumstances (in which case the City of Santa Monica shall be deemed
to have approved the proposed maximum acquisition cost in the written
recommendations except for that portion which the City of Santa Monica can
establish is excessive). The parties hereto expressly acknowledge that it may
be reasonable and necessary for the Developer to recommend a proposed
maximum cost for acquisition of a particular required right of way which is
significantly higher than the market or appraised value for that right of way
in order to facilitate the development of the Project in a diligent manner and
that such proposed maximum acquisition cost shall not be deemed excessive
under such circumstances.
(C) All fees and costs paid to Selected Contractor(s)
under Santa Monica Improvements Contract(s) and Applicable Jurisdiction
Selected Contractor(s) under Applicable Jurisdiction Improvements
Contract(s) entered into by the Developer pursuant to this Exhibit "E".
including fees and costs in excess of the original contract amount of such
Improvement Contracts so long as such excess fees and costs are paid
pursuant to the terms of such Improvement Contracts or approved by the
City, which approval shall not be unreasonably withheld or delayed.
(D) The total sum of all Reserved Improvements
Payments under Section 5(c) of this Exhibit "Ell.
(E) Any amounts drawn by the City of Santa Monica
from the Rejected Improvements Letter of Credit and paid to the Applicable
Jurisdiction under Section 5(f)(iv) of this Exhibit "E".
(F) The following fees and costs incurred as a result
of a final nonappealable judgment pursuant to Section 7 of this Exhibit "E":
(1) all fees and costs described in
subsections (A), (B) or (C); and
(2) the amount of any judgment to be
paid in lieu of performing the Off-Site Traffic Improvements.
(G) The total sum of any such other fees or costs paid
to third parties or entities which the City of Santa Monica and the Developer
mutually agree in writing, with specific reference to this Exhibit "E",
constitute Traffic Capital Costs.
(ii) All direct construction costs for labor, materials and
equipment, including costs paid to contractors and subcontractors, properly
attributable to the construction of the Traffic Mitigation Parking Spaces.
Notwithstanding anything to the contrary above, no fees or costs paid to
attorneys, architects, accountants or other professionals (other than engineers or
engineering firms) and no financing costs shall be included in Traffic Capital Costs.
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Traffic Capital Costs Base: As defined in Section 8(a)(i) of this Exhibit "E".
Traffic Mitigation Fee: As defined in Section 8(b) of this Exhibit "E".
Traffic Mitigation Parking Spaces: Parking spaces at the Project that,
pursuant to Developer's TDM Program under Section 6(h) of the Agreement, as approved
by the Gty Manager of the Gty of Santa Monica, are dedicated during the entire term of
the Agreement for use exclusively by car-pools and van-pools or, if approved in writing by
the City Manager with specific reference to this Exhibit ffE'\ for other similar traffic
mitigation purposes, provided in any case that no fee, rent or other charge is imposed for
the use of such spaces during the term of the Agreement.
In addition, other defined terms and phrases in this Exhibit "E" shall have the meanings
attributed thereto in the Agreement.
3. Plans and Bids. With respect to all of the Off-Site Traffic Improvements,
including the Santa Monica Improvements, the Los Angeles Improvements, and the Culver
City Improvements prior to the issuance by the City of Santa Monica of a building permit
for the construction of any building or parking structure in any Phase of the Project or any
portion thereof:
(a) Developer shall submit for approval of the City of Santa Monica
detailed plans and specifications prepared by a qualified licensed civil engineer selected by
Developer for all of the Off-Site Traffic Improvements required for that Phase. The plans
and specifications for the Santa Monica Improvements shall be generally in accordance with
the standards, requirements and common practices of the City of Santa Monica. The plans
and specifications for the Los Angeles Improvements and the Culver City Improvements
shall be generally in accordance with the standards, requirements and common practices
of the Applicable Jurisdiction. The City of Santa Monica shall not unreasonably withhold
or delay its approval of the plans and specifications submitted by the Developer under this
subsection (a).
(b) Developer shall submit for approval of the City of Santa Monica a list
of licensed contractors whom Developer believes are qualified to perform the Off-Site
Traffic Improvements required for the Phase, which approval shall not be unreasonably
withheld or delayed.
(c) Following approval by the City of Santa Monica of the licensed
contractor(s) pursuant to subsection (b) ("Approved Contractors") and the plans and
specifications for aU of the Off-Site Traffic Improvements required for the Phase pursuant
to subsection (a) ("Approved Plans"), Developer shall obtain written bids from at least three
(3) of the Approved Contractors to perform the necessary work under the Approved Plans
for the required Off-Site Traffic Improvements for the Phase and shall submit such written
bids to the City of Santa Monica. Each written bid shall separately delineate the amount
of the bid attributable to each particular Off-Site Traffic Improvement which is part of the
required Off-Site Traffic Improvements for the Phase.
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4. Santa Monica Improvements. The Developer may enter into a written
contract ("Santa Monica Improvements Contract") with the Approved Contractor who has
submitted the lowest responsible written bid or another Approved Contractor mutually
agreed upon by the City of Santa Monica and the Developer ("Selected Contractor") to
perform all of the Santa Monica Improvements required for the Phase pursuant to the
Approved Plans. Unless mutually approved by the City of Santa Monica and the
Developer, the Santa Monica Improvements Contract shall be for an amount not to exceed
the written bid submitted by the Selected Contractor for performance of the Santa Monica
Improvements. The City of Santa Monica shall have the right to review and approve the
Santa Monica Improvements Contract, which approval shall not be unreasonably withheld
or delayed.
5. Los Angeles Improvements and Culver City Improvements. With respect to
any of the Los Angeles Improvements and the Culver City Improvements:
(a) All of the Los Angeles Improvements and Culver City Improvements
required for a Phase shall be constructed in accordance with the Approved Plans and any
revisions to the Approved Plans upon which the City of Santa Monica, the Developer and
the Applicable Jurisdiction may mutually agree ("Plan Revisions"). In the event that the
City of Santa Monica, the Developer and the Applicable Jurisdiction mutually agree upon
Plan Revisions to the Approved Plans, the Developer shall obtain and submit to the City
of Santa Monica written bids from at least three (3) of the Approved Contractors to
perform the required Los Angeles Improvements and the Culver City Improvements for the
Phase under the Approved Plans, as modifIed by the Plan Revisions. Each written bid shall
separately delineate the amount of the bid attributable to each particular Los Angeles
Improvements or Culver City Improvements which is part of the required Los Angeles
Improvements and Culver City Improvements for the Phase.
(b) Developer agrees to use due dIligence to apply for, and Developer's
best efforts to obtain, any necessary permIts and approvals from the Applicable Jurisdiction
to construct the Los Angeles Improvements and Culver City Improvements required for a
Phase in accordance with the Approved Plans and any Plan Revisions thereto. In
connection with any application to the Applicable Jurisdiction for the issuance of permits
and approvals to construct the required Los Angeles Improvements and Culver City
Improvements for a Phase, the Developer shall submit to the Applicable Jurisdiction the
Approved Plans and any Plan Revisions thereto for such Los Angeles Improvements or
Culver City Improvements, as applicable and the lowest responsible written bid submitted
by an Approved Contractor to perform such Los Angeles Improvements or Culver City
Improvements in accordance with the Approved Plans and any Plan Revisions thereto.
(c) In the event that:
(i) The Applicable Jurisdiction determines that it desires to
have:
(A) all or any portion of the Los Angeles Improvements
or the Culver City Improvements, as applicable, constructed directly by the
Applicable Jurisdiction or its contractors ("Reserved Improvements"); and
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(B) the cost of the Reserved Improvements, as estimated
by the Applicable Jurisdiction, paid directly to the Applicable Jurisdiction
("Reserved Improvements Payment"),
(ii) The Applicable Jurisdiction delivers a written notice of
its determination under subsection (i) to the City of Santa Monica and the
Developer specifying the Reserved Improvements for the Phase within thirty
(30) days following submission by the Developer to the Applicable
Jurisdiction of the lowest responsible written bid from an Approved
Contractor to perform the Los Angeles Improvements or the Culver City
Improvements, as applicable, pursuant to subsection (b),
(ill) The amount of the Reserved Improvements Payment
does not exceed the total amount of the lowest responsible written bid from
the Approved Contractor to perform the Reserved Improvements which was
submitted by the Developer pursuant to subsection (b) or such other amount
as may be mutually agreed upon by the City of Santa Monica and the
Developer, and
(iv) The Applicable Jurisdiction enters into a written
agreement with the City of Santa Monica and the Developer upon terms and
conditions which are acceptable to the City of Santa Monica and the
Developer, in their reasonable judgment, which provides written assurances
to the City of Santa Monica and the Developer of the full and timely
completion of the Reserved Improvements by the Applicable Jurisdiction and
releases the City of Santa Monica and the Developer from any responsibility
for the performance of the Reserved Improvements or for the payment or
reimbursement of any costs or expenses in connection therewith, other than
the Reserved Improvements Payment,
then the Developer shall pay to the Applicable Jurisdiction within thirty (30) days following
execution of the written agreement under subsection (iv), a sum equal to the Reserved
Improvements Payment. Upon payment by Developer to the Applicable Jurisdiction of the
Reserved Improvements Payment, the City of Santa Monica shall not withhold or delay the
issuance of the First Certificate or any subsequent Certificate of Occupancy which may be
required in connection with any bUIlding or parking structure in the Phase on the basis of
non-completion of any Reserved Improvements. If the Applicable Jurisdiction fails to
deliver timely written notice to the City of Santa Monica and the Developer under subsec-
tion (ii) or otherwise fails to comply with the provisions of this subsection (c), the
Developer shall have no obligatIOn to pay the Reserved Improvements Payment to the
Applicable Jurisdiction or to consent to any request or proposal from the Applicable
Jurisdiction to have the Los Angeles Improvements or the Culver City Improvements, as
applicable, for the Phase performed by the Applicable Jurisdiction or its contractor.
(d) The obligation of the Developer to construct the Los Angeles
Improvements and the Culver City Improvements for any Phase (other than the Reserved
Improvements) and, except as expressly provided in Sections 5(c) and 7, the obligation of
the Developer to bear any cost and expense in connection with the Los Angeles
Improvements and the Culver City Improvements for any Phase [other than costs and
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expenses for acts required under Sections 3t 5(a), 5(b), S(c) and S(f)] is expressly contingent
upon the prior issuance by the Applicable Jurisdiction of all necessary permits and
approvals for the performance of such Los Angeles Improvements and the Culver City
Improvements.
( e) In the event that the Applicable Jurisdiction issues the necessary
permits and approvals to construct the los Angeles Improvements and the Culver City
Improvements for any Phase of the Project in accordance with the Approved Plans and any
Plan Revisions thereto at any time prior to the issuance of the Final Certificate for a
building or parking structure in the last Phase of the Project, the Developer shall enter into
a written contract (It Applicable Jurisdiction Improvements Contract") with the Approved
Contractor who has submitted the lowest responsible written bid or another contractor
mutually agreed upon by the City and the Developer ("Applicable Jurisdiction Selected
Contractor") to perform the Los Angeles Improvements and the Culver City Improvements
which are covered by such bid and which are the subject of the permits and approvals
issued by the Applicable Jurisdiction. In the event that at the time of tbe issuance of the
necessary permits and approvals by the Applicable Jurisdictio~ the lowest responsible
written bid from an Approved Contractor to construct tbe Los Angeles Improvements and
the Culver City Improvements which was submitted by the Developer to the City of Santa
Monica under subsection (b) is no longer validt the Developer shall obtain and submit to
the City of Santa Monica new written bids from at least three (3) of the Approved
Contractors to perform the Los Angeles Improvements and the Culver Clty Improvements
to which the permits and approvals relate. In such event, the Developer shall enter into
the Applicable Jurisdiction Improvements Contract with the Approved Contractor who has
submitted the new lowest responsible written bid or another Approved Contractor mutually
agreed upon by the City of Santa Monica and the Developer and that Approved Contractor
shall be deemed the Applicable Jurisdiction Selected Contractor. Unless mutually approved
by the City of Santa Monica and the Developer, the Applicable Jurisdiction Improvements
Contract shall be for an amount not to exceed the written bid submitted by the Applicable
Jurisdiction Selected Contractor to perform the Los Angeles Improvements and the Culver
City Improvements which are the subject of the Applicable Jurisdiction Improvements
Contract. The City of Santa Monica shall have the right to review and approve the
Applicable Jurisdiction Improvements Contract, which approval shall not be unreasonably
withheld or delayed. Unless otherwise determined by the final nonappealable judgment of
a court of competent jurisdiction pursuant to Section 7, neither the Developer nor the City
of Santa Monica shall be obligated to payor incur any costs in connection with the
performance of the los Angeles Improvements and the Culver City Improvements which
would not have been paid or incurred if the Applicable Jurisdiction had issued necessary
permits and approvals to construct the Los Angeles Improvements and the Culver City
Improvements in due course upon Developer's proper application therefor made in
accordance with the provisions of this Agreement, provided, however, that if the Developer
actually pays or incurs such costs in accordance with this Exhibit "E" (whether or not
pursuant to a fmal nonapplicable judgment of a court of competent jurisdiction) and if such
costs would otherwise qualify as "Traffic Capital Costs" as defined herein, such costs shall
constitute Traffic Capital Costs for which the Developer may be entitled to reimbursement
under the provisions of Section 8 of this Exhibit "E",
(f) If the Developer has used due diligence and its best efforts to apply
for and obtain the necessary permits and approvals from the Applicable Jurisdiction to
-7-
e
e
construct the Los Angeles Improvements and the Culver City Improvements for a Phase in
accordance with the Approved Plans and any Plan Revisions thereto, but the Applicable
Jurisdiction has declined or refused to issue the necessary permits and approvals for
performance of any of the Los Angeles Improvements and the Culver Oty Improvements,
except for the Reserved Improvements, as of the date on which the First Certificate would
be issued for a building or parking structure in that Phase but for noncompletion of such
Los Angeles Improvements and the Culver City Improvements ("Rejected Improvements"),
the City of Santa Monica shall not withhold or delay the issuance of the First Certificate
or any subsequent Certificate of Occupancy which may be required in connection with any
building or parking structure in the Phase on the basis of the non-completion of the
Rejected Improvements. As a condition precedent to the issuance by the City of Santa
Monica of the First Certificate or any subsequent Certificate of Occupancy for the Phase
under this subsection (f), the Developer shall deposit with the City of Santa Monica an
unconditional irrevocable letter of credit as security for the obligations of the Developer
to perform the Los Angeles Improvements and the Culver City Improvements under
subsection (e) ("Rejected Improvements Letter of Credit"). Each Rejected Improvements
Letter of Credit shall meet the following requirements:
(i) The Rejected Improvements Letter of Credit must be an
irrevocable letter of credit issued by a national bank and in a form and
content approved by the City Manager of the City of Santa Monica, which
approval shall not be unreasonably withheld or delayed.
(ii) The initial Rejected Improvements Letter of Credit shall
have an expiration date which is the first anniversary date of the First
Certificate Issuance Date for the Phase.
(iii) The amount of each Rejected Improvements Letter of
Credit shall be a sum equal to the total amount attributable to the Rejected
Improvements in the then most current lowest responsible written bid
submitted by an Approved Contractor, which amount shall be increased by
the same percentage as the percentage increase, if any, in the Dodge Building
Cost Index for Los Angeles as of the second full month preceding the date
of the Rejected Improvements Letter of Credit over the Dodge Building Cost
Index for Los Angeles as of the date of the then most current lowest
responsible written bid, provided that, in the event that as of the First
Certificate Issuance Date, the Developer has submitted a written report
pursuant to subsection (8)(a)(ii) demonstrating that the Developer has paid
Traffic Capital Costs equal to or in excess of the Traffic Capital Costs Base
defined and determined pursuant to Section (8)(a)(i), the amount of the
Rejected Improvements Letter of Credit shall be equal to one-half (1/2) of
the then most current lowest responsible written bid, which amount shall
similarly be increased by the Dodge Building Cost Index, as provided in this
subsection (iii).
(iv) In the event that the Developer fails to timely perform
any of the Los Angeles Improvements and the Culver City Improvements
following issuance of all necessary permits and approvals therefor from the
Applicable Jurisdiction and fails to cure its nonperformance follov.ing thirty
-8-
e
.
(30) days written notice from the City Manager of the City of Santa Monica
to the Developer, the City Manager or his designee may unilaterally draw
upon the Rejected Improvements Letter of Credit upon presentation of a
sight draft to the issuing national bank to the extent required (as determined
by the City Manager in his sole discretion) to complete performance of the
Los Angeles Improvements and the Culver City Improvements which are the
subject of the notice from the City Manager to the Developer. Nothing in
this subsection (iv) is intended. nor should be construed, to limit the
obligation of the Developer to perform the Los Angeles Improvements and
the Culver City Improvements for which the necessary permits and approvals
have been issued by the Applicable Jurisdiction nor to limit the obligation of
the Developer to pay for the costs and expenses in connection therewith to
the amount of the Rejected Improvements Letter of Credit.
(v) If all of the funds represented by the initial Rejected
Improvements Letter of Credit or any successor letter of credit hereunder
have not been drawn by the City of Santa Monica prior to expiration thereof
pursuant to subsection (iv), then at least twenty (20) days prior to expiration
of the initial Rejected Improvements Letter of Credit or any successor letter
of credit hereunder, the Developer shall obtain and deliver to the Qty of
Santa Monica a successor letter of credit which is identical to the then current
Rejected Improvements Letter of Credit except for the issue date (which shall
be the date of issuance of the successor letter of credit), the expiration date
(which shall be the fIrst anniversary of the date of the successor letter of
credit) and the amount (which shall be an amount equal to the sum of the
principal amount of the then current Rejected Improvements Letter of Credit
less amounts drawn by the City of Santa Monica therefrom under subsection
(iv), which sum shall be increased by the same percentage as the percentage
increase, if any, in the Dodge Building Cost Index for Los Angeles as of the
second full month preceding the issue date of the successor letter of credit
over the Index as of the second full month preceding the issue date of the
then current Rejected Improvements Letter of Credit). Upon delivery by the
Developer of a successor letter of credit to the City of Santa Monica, the City
of Santa Monica shall return the then current Rejected Improvements Letter
of Credit to the Developer and the successor letter of credit shall thereafter
be deemed the Rejected Improvements Letter of Credit for purposes of this
subsection (f). In the event that the Developer fails to provide a successor
letter of credit at least twenty (20) days prior to the expiration date of the
then current Rejected Improvements Letter of Credit in accordance with the
provisions of this subsections (v) above and (g)(i) below, the City Manager,
upon presentation of a sight draft to the issuing national bank, may draw aU
funds represented by the then current Rejected Improvements Letter of
Credit. Any funds so drawn shall be held by the City of Santa Monica for use
in accordance with subsection (iv) and, if any of the funds are not so utilized
by the City of Santa Monica as of the date of issuance of the Final Certificate
for the last Phase, such funds shall be returned by the City of Santa Monica
to the Developer.
-9-
.
~
(g) In the event that Developer has used due diligence and its best efforts
to apply for and obtain the necessary permits and approvals from the Applicable
Jurisdiction to construct the Los Angeles Improvements and the Culver City Improvements
in accordance with the Approved Plans and any Plan Revisions thereto, but the Applicable
Jurisdiction has declined or refused to issue the necessary permits and approvals for
performance of any of the Los Angeles Improvements and the Culver City Improvements
as of the date on which the Final Certificate is issued for a building or parking structure
in the last Phase of the Project:
(i) The then current Rejected Improvements Letter of Credit
and all funds represented thereby which have not been drawn by the City of
Santa Monica in accordance with subsections (f)(iv)and (f)(v) [and if the City
of Santa Monica has drawn on the Rejected Improvements Letter of Credit,
all funds, if any, which have not been applied by the City of Santa Monica as
of the issuance date of the Final Certificate for performance of the Rejected
Improvements or which the City of Santa Monica is not obligated to apply for
such purpose pursuant to binding legal agreements in effect as of that date]
shall be returned to the Developer and the Developer shall have no
obligation to replace or renew the Rejected Improvements Letter of Credit
or provide any other irrevocable letter of credit or other form of security for
the performance of any of the Los Angeles Improvements and the Culver City
Improvements under Section 5( e) or otherwise in this Exhibit "E";
(ii) Except as provided in SectIon 7, the Developer shall have
no obligation to construct such Los Angeles Improvements and the Culver
City Improvements; and
(iii) Except as provided in Section 7, the Developer shall have
no obligation to bear any costs and expenses in connection with such Los
Angeles Improvements and the Culver City Improvements.
6. Issuance of Building Permits and Certificates of Occupancy. Neither the
commencement nor the completion of any of the Off-Site Traffic Improvements whIch are
required for a Phase are a condition precedent for the issuance by the City of Santa
Monica of any building permit or any related permit for the construction of a building or
parking structure in that Phase. However, no Certificate of Occupancy for any building or
parking structure in the Phase will be issued by the City of Santa Monica until full
completion of all required Off-Site Traffic Improvements for that Phase, except:
(a) As specifically provided in this Exhibit "E"; or
(b) With respect to Los Angeles Improvements and the Culver City
Improvements for which all necessary permits and approvals have been issued by the
Applicable Jurisdiction prior to the First Certificate Issuance Date for that Phase, in the
event that the Developer has used due diligence to apply for and obtain such required
permits and approvals and, if obtained, has then proceeded in a diligent manner to perform
the Los Angeles Improvements and the Culver City Improvements pursuant to such permits
or approvals but:
-10-
.
.
(i) all of such Los Angeles Improvements and the Culver
City Improvements have not been fully completed as of the date on which the
First Certificate for that Phase would be issued by the City of Santa Monica
but for the non-completion of the Los Angeles Improvements and the Culver
City Improvements, and
(ii) such non-completion is principally related to delays by
the Applicable Jurisdiction in the issuance of the necessary permits and
approvals to construct the Los Angeles Improvements and the Culver City
Improvements,
then the City of Santa Monica shall not withhold or delay the issuance of the First
Certificate or any subsequent Certificate of Occupancy required in connection with any
building or parking structure for the Phase on the basis of the non-completion of such Los
Angeles Improvements and the Culver City Improvements for which permits and approvals
have been issued, provided that prior to issuance of the First Certificate the Developer
delivers a bond acceptable to the City of Santa Monica in its reasonable judgment for
completion of such Los Angeles Improvements and the Culver City Improvements for the
Phase and a written guaranty acceptable to the City of Santa Monica in its reasonable
judgment of the full completion by the Developer of such Los Angeles Improvements and
the Culver City Improvements.
7. Final Judicial Action. In the event that a final nonappealable judgment of a
court of competent jurisdiction holds that:
(a) notwithstanding the provisions of Section 5(g)(ii) of this Exhibit "E",
the Developer has obligations to construct the Los Angeles Improvements and the Culver
City Improvements for a Phase subsequent to the issuance of the Final Certificate for the
last Phase of the Project, or
(b) notwithstanding the provisions of Section S(g)(ii) of this Exhibit "E",
the Developer has obligations to pay for the costs and expenses of the Rejected
Improvements for a Phase subsequent to the issuance of the Final Certificate for a building
or parking structure in the last Phase of the Project, or
(c) notwithstanding the provisions of Section 5(e), the Developer has
obligations to pay any increase in costs in the performance of the Los Angeles
Improvements and the Culver City Improvements which the Developer reasonably believes
would not have been incurred if the Applicable Jurisdiction had issued the necessary
permits and approvals to construct such Los Angeles Improvements and the Culver City
Improvements in due course upon the Developer's proper application therefor,
then the Developer shall comply with the terms and conditions of the final nonappealable
judgment. Except as otherwise specifically provided in this Agreement, the DDA, the
Ground Leases or other applicable agreements between the City of Santa Monica and the
Developer, the City of Santa Monica and the Developer shall each bear their respective
attorneys' fees and court costs in connection with any legal action related to their respective
rights and obligations pursuant to this Exhibit "E".
-11-
.
.
8. Traffic CaoitaI Costs
(a) With respect to the responsibilities of the Developer and the City of
Santa Monica as to the payment and reimbursement of any Traffic Capital Costs incurred
in connection with the Project:
(i) The Developer shall pay all Traffic Capital Costs until
the total of the Traffic Capital Costs equals the sum of One Million Seven
Hundred Ninety-One Thousand Two Hundred Dollars ($1,791,200) ["Traffic
Capital Cost Base"], provided that if the Maximum Floor Area of the Project
listed under subsection 3(b)(i) of the Agreement is less than 1,015,000 square
feet, the Traffic Capital Cost Base shall be reduced by a percentage equal to
one-half (1/2) of the percentage decrease in the listed Floor Area below
1,015,000 square feet.
(ii) If the total amount of aU Traffic Capital Costs paid by
the Developer in connection with the Project exceeds the Traffic Capital Cost
Base ("Excess Traffic Capital Costs") the Developer shall be entitled to
reimbursement from the City of Santa Monica for one-half (1/2) of the
amount of the Excess Traffic Capital Costs paid by the Developer. As a
condition precedent to the CIty of Santa Monica's obligation to reimburse the
Developer for the City of Santa Monica's one-half (1/2) share of the Excess
Traffic Capital Costs, within five (5) years after the applicable Traffic Capital
Costs are paid by the Developer, the Developer must submit to the City of
Santa Monica a written report of an independent Certified Public Accoun-
tant, who shall be satisfactory to the City of Santa Monica, certified as true
and correct by the Developer's Chief financial Officer, showing in detail the
amounts actually paid by the Developer for Traffic Capital Costs as of the
date of the written report together with a written request for reimbursement
by the Developer. Such written report shall be prepared in accordance with
generally accepted accounting principles applied on a consistent basis. Within
thirty (30) days following receipt of such written report and written request
for reimbursement, the City of Santa Monica shall refund to the Developer
one-half (1/2) of the Excess Traffic Capital Costs paid by the Developer as
shown by such written report. The Developer shall request reimbursement
of the City of Santa Monica's one-half (1/2) share of the Excess Traffic
Capital Costs no more frequently than once each calendar year quarter.
With respect to each written report and request for reimbursement submitted
by the Developer, the CIty of Santa Monica have the right to perform or have
performed an audit of the Traffic Capital Costs expended by the Developer
for the Project and, if the amount of the Excess Traffic Capital Costs
requested by the Developer exceeds the actual amount determined by the
audit report of the City of Santa Monica to be reimbursable by the Oty of
Santa Monica under this subsection (b), the Developer shall promptly refund
such excess amount to the City of Santa Monica together with interest on the
amount of the excess reimbursement from the date of receipt thereof by the
Developer at the rate announced from time to time by Union Bank or its
successor (or, if no successor, by an equivalent California bank). In addition,
if the amount of the excess Traffic Capital Costs requested by the Developer
-12-
.
.
exceeds the actual amount that is reimbursable according to the audit report
of the City of Santa Monica by two percent (2%) or more, the Developer
shall pay the audit costs incurred by tbe City of Santa Monica.
(iii) In addition to the written report required under
subsection (ii), within thirty (30) days following the end of each calendar
quarter during the term of the Agreement, the Developer shall provide the
City of Santa Monica with a quarterly status report of Traffic Capital Costs,
if any, incurred in the prior calendar quarter as well as copies of
documentation evidencing such costs. Failure by the Developer to timely
provide such a quarterly report and documentation shall not excuse, reduce
or delay the obligations of the City of Santa Monica to reimburse the
Developer for one-half (1/2) of any Excess Traffic Capital Costs pursuant
to subsection (ii), provided however that for any quarterly period for whicb
the Developer fails to timely provide the City of Santa Monica with the
quarterly report and documentation pursuant to this subsection (iii), any
written report required under subsection (ii) which relates to Traffic Capital
Costs incurred in that quarterly period, shall be an audited report.
(b) Prior, and as a condition precedent to, the issuance the First
Certificate for Phase 1 of the Project, the Developer shall submit to the City of Santa
Monica a written report which meets the requirements of subsection 8(a)(ii) detailing the
amounts actually paid by the Developer for Traffic Capital Costs as of the date of the
report. If the aggregate amount actually paid by the Developer for Traffic Capital Costs
as demonstrated by such written report is less than the Traffic Capital Cost Base, then as
an additional condition precedent to the issuance of a First Certificate for Phase 1, the
Developer shall pay to the City of Santa Monica the amount of the difference between the
Traffic Capital Cost Base and the aggregate amount theretofore actually paid by the
Developer for Traffic Capital Costs ("Traffic Mitigation Fee") as demonstrated by such
written report. The City of Santa Monica may elect by written notice to Developer to
utilize all or any portion of the Traffic Mitigation Fee for such purposes as the City of
Santa Monica may determine in its sole and absolute discretion. If, subsequent to
Developer's payment of the Traffic Mitigation Fee, the Developer actually pays additional
Traffic Capital Costs in connection with the development of the Project and provides a
request for reimbursement and a written report pursuant to subsection (a)(ii), the City of
Santa Monica shall refund to the Developer the amount or amounts of such costs in the
aggregate not exceeding the amount of the Traffic Mitigation Fee paid to the City of Santa
Monica.
-13-
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