SR-820209-8A~- i4
fEB 9198°
CA:RMM:r
City Council Meeting 2-9-82
T0:
FROM:
SUBJECT:
STAFF REPORT
Mayor and City Council
City Attorney
Santa Monica, California
Housing Incentive and Development Agreement
Between Harris Toibb and the City of Santa
Monica
On October 27, 1981, the City Council granted Harris
Toibb a hardship exemption under the Emergency Building
Moratorium to proceed with a development located at 1034-1050
Fourth Street. The hardship exemption was granted subject to
the condition that. Harris Toibb enter into an agreement with
the City implementing the terms and conditions of the hard-
ship approval. In response to this action, the accompanying
housing incentive and development agreement has been negoti-
ated and is now presented to the City Council for approval.
Mr. Toibb's development was initially presented to the
City Council as a six-story, 42 unit condominium project on a
development site currently occupied by controlled rental
units. As a condition of securing a removal permit from the
Santa Monica Rent Control Board, Mr. Toibb's initial proposal
included the development of a 10 unit apartment building on
the same site and adjacent to the condominiums.
In response to concerns from and direction of the City
fEB 9 19
Council, the development was substantially redesigned. The
housing incentive and dev~=].opment agreement contains the
following principal features:
Fourth Street
1. The property will be developed with a four-story 42
unit building. The building will consist of 27 condominiums
on the second, third, and fourth floors and 15 rental units
on the first floor.
2. The building height shall be no more than 50 feet
measured three feet above the highest grade level on the
property. The front yard set back shall be a minimum of 20
feet, the side yard set backs a minimum of 8 feet, and rear
yard set back a minimum of 5 feet. Lot coverage shall be no
more than 668. There shall be a minimum of 82 subterranean
parking spaces. (The denisity incentives are obviously
necessary when a six-story, 42 unit building is reduced to a
four-story building with the same number of units.)
3. The 15 rental units shall consist of four two-bed-
room units and eleven one-bedroom units. Eight of the units
shall be affordable to low-income households and seven of the
units shall be affordable to moderate income households. The
units shall be provided for 40 years or the life of the pro-
ject, whichever is greater. The 15 units, but not the condo-
miniums, are exempted from certain specified City fees and
assessments in order to contribute to the economic feasibil-
ity of the project.
4. Before demolition of the existing units, an appro-
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priate deed restriction will be recorded restricting the use
of the 15 rental units as provided for in the agreement.
'5. Construction must commencA within 180 days of demo-
lition of the existing units.
6. The Santa Monica Rent Control Board conditions
governing relocation of existing tenants have been incorpor-
ated into the agreement and strengthened by requiring a mini-
mum $ 300.00 moving allowance.
7. The 15-units shall be subject to the Santa Monica
Rent Control Charter Amendment.
Sixth Street
1. The property owned by Mr. Toibb located at 2616
Sixth Street must be developed with an eight-unit apartment
building.
2. The building will contain all one-bedroom units,
two of which will be affordable to low-income households and
six of which will be affordable to moderate-income house-
holds. (Note. The City Council's concern about two-bedroom
units was addressed by providing an additional two-bedroom
unit on Fourth Street.)
3. The apartment building must be made available for
40 years or the life of the project, whichever is greater.
4. Before demolition of the Fourth Street units, an
appropriate deed restriction must be recorded restricing the
use of the property as provided for in the agreement.
5. Construction must commenced within two years of the
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commencement of construction of the Fourth Street property.
This two year period can be extended for thF_ period of time
that Mr. Toibb has not sold 85~ of the Fourth Street Condo-
miniums after an initial two month sales program. (This
extension recognizes any hardship that Mr. Toibb might
experience if the condominiums are not promptly sold.)
b. Certain specified fees and assessments are waived
in order to contribute to the economic feasibility of the
project.
7. The Santa Monica Rent Control Board conditions
governing relocation of the existing tenants have been
incorporated into the agreement and strengthened by requiring
a minimum $ 300.00 moving allowance.
8. The eight-units shall be subject to the Santa
Monica Rent Control Charter Amendment.
As can be seen, the housing incentive and development
agreement provides for a project consisting of 27 condo-
miniums and 23 low and moderate income rental units. The
various provisions of the agreement ensure that if Mr. Toibb
proceeds with the project, the low and moderate income
housing will be provided.
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RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance approving the housing incentive and development
agreement be introduced for first reading.
PREPARED BY: Robert M. Myers, City Attorney
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CA:RMM:r
City Council Meeting 2-9-82 Santa Monica, California
ORDINANCE NUMBER
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF SANTA MONICA
APPROVING HOUSING INCENTIVE AND
DEVELOPMENT AGREEMENT BETWEEN
HARRIS TOIBB AND
THE CITY OF SANTA MONICA
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES
ORDAIN AS FOLLOWS:
SECTION 1. The housing incentive and development
agreement attached hereto and incorporated by reference
between Harris Toibb and the City of Santa Monica, a munic-
ipal corporation, is hereby approved.
SECTION 2. Each and every term and condition of the
housing incentive and 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 the
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 housing incentive and 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 housing incentive and devel-
opment•agreement.
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, is 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
competent jurisdiction, such decision shall not affect the
validity of the remaining portions of the 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 published once in the
official newspaper within 15 days after its adoption. The
ordinance shall become effective 30 days from its adoption.
APPROVED AS TO FORM:
ROBERT M. MYERS
City Attorney
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HOUSING INCENTIVE AND DEVELOPMENT AGREEMENT
between
HARRIS TOIBB
and
THE CITY OF SANTA MONICA, CALIFORNIA
TABLE OF CONTENTS
RECITALS- Page
A. Parties .......................................1
B. Description of Real Property ..................1
C. Interest of Owner .............................2
D. Description of Project ........................2
E. City's Prior Proceedings ......................3
F. Development Agreements ........................3
G. Housing Incentive Agreements ..................4
H. Incentives ....................................4
I. Public Interest ...............................5
J. Council Authorization .........................5
AGREEMENT
1. The Project ...................................5
2. City Approval of Project ......................6
A. Height ....................................6
B. Yards .....................................7
C. Lot Coverage (Density) ....................7
D. Condominium Units .........................8
E. Subterranean Parking .....................13
F. Accessibility ............................13
G. No Dedications ...........................14
H. Completion ...............................14
(i)
3. Bonuses and .Incentives .......................14
4. Expedited Processing .......................17
5. Sixth Street Development .....................19
6. Events of Default ............................25
7. Procedure Upon Default .......................28
8. Changes in City Regulations ..................28
9. Hold Harmless ................................29
10. Attorneys Fees ...............................30
11. Mutual Release and Dismissal of Lawsuit ......30
12. Amendment of Agreement .......................31
13. General Provisions ...........................31
A. Waiver ...................................31
B. Binding Effect ...........................32
C. Assignment ...............................32
D. Relationship of Parties ..................32
E. Execute other Documents ..................32
F. Counterparts .............................33
G. Notices .............:....................33
14. Duration of Agreement ........................34
15. Recording of Agreement .......................34
(ii)
' CONTRACT NO. (CCS)
HOUSING INCENTIVE AND
_ DEVELOPMENT AGREEMENT
This Development Agreement is made, entered into and is
effective on this date, _, 1982, at Santa Monica,
California.
RECITALS
This Agreement is made with reference to the following
facts:
A. Parties.
The parties to this Agreement are:
1. The City of Santa Monica, a municipal cor-
poration (hereinafter the "CITY") by and through its
duly elected and serving Santa Monica City Council
(hereinafter referred to as_the "COUNCIL"); and
2. Harris Toibb, a resident of the City of Santa
Monica (hereinafter referred to as the "OWNER"), and
his successors in interest.
B. Description of Real Propert .
The owner of the real property which is the subject of
this .Agreement is situated in the City of Santa Monica,
County ,of Los Angeles, California, commonly known as
1034-1050 4th Street, Santa Monica, California (hereinafter
referred to as the "4TH STREET PROPERTY" or the "SITE"), is
described as Tract No. 33579, and is more .particularly
described as:
Lots G, H, I and J in Block 73 of Santa
Monica, as per map recorded in Sook 3,
Page 80 and in Book 39, Page 45 of
Miscellaneous Records of the County of
Los Angeles, State of California.
The SITE is located at the easterly border of the
Coastal Zone within an R-4 Multiple Residential District,
which permits condominium use.
C. Interest of OWNER.
OWNER represents that he has legal and equitable
interests in the 4TH STREET PROPERTY, and that all other
persons holding legal or equitable interests in the 4TH
STREET PROPERTY, if any, are to be bound by this Agreement.
D. Description of Pro'ect.
OWNER has proposed to COUNCIL a development plan (the
DEVELOPMENT PLAN) for the 4TH STREET PROPERTY, providing for
the demolition and/or removal of existing structures, and
the construction of a new four-story, 42-unit condominium
building, of which fifteen (15) [36°s of the PROJECT) will be
apartment units having rents set to be affordable to low-
and moderate-income households. The improvement of the 4TH
STREET PROPERTY as provided in the DEVELOPMENT PLAN is
referred to in this Agreement as the "4TH STREET PROJECT",
and is dQSCribed below more fully.
E. CITY's Prior Proceedin s Affectin PROJECT.
On or about September 18, 1978, the CITY approved and
issued to OWNER Tentative Tract Map number 33579, for a
six-story, 42-unit condominium building on the 4TH STREET
PROPERTY. On April 9, 1981, the Santa Monica Rent Control
Board granted Removal Permit Number 074R, permitting the
demolition of existing structures on the 4TH STREET PROP-
ERTY, in accordance with several conditions. Said proceed-
ings are described in the Rent Control Board files, to which
reference is made for further particulars.
On October 27, 1981, the COUNCIL approved OWNER's
DEVELOPMENT PLAN, and authorized the City Attorney to
negotiate this Agreement, in connection with the COUNCIL
granting OWNER's Claim Number M-071 [an Application for
Hardship Determination, and Claim for Vested Rights and
Exemption Status]. Said Council proceedings are described
in the files of the COUNCIL, to which reference is made for
further particulars.
F. Development Agreements.
CITY intends to enter into binding Development
Agreements, pursuant to the provisions of State law,
including Government Code Section 65864 et seq., and
pursuant to the CITY's Charter.
G. Housing Incentive Agreements.
Government Code Sections 65915-65918 authorize the CITY
to enter into binding Housing Incentive Agreements with
persons having legal or equitable interest in real property,
where the owner agrees to construct at least 25$ of the
total units of the housing development affordable to house-
holds of low- or moderate-income. Pursuant to said Code
Sections, the CITY is empowered to grant OWNER incentives
£or the 4TH STREET PROJECT, including but not limited to:
1. A "density bonus" by way of a density in-
crease of at least 25$ over the otherwise allowable
residential density under applicable zoning ordinance;
2. Exemption of the development "from any pro-
vision of local ordinances which may cause an indirect
increase in the cost of the housing units to be devel-
oped"; and
3. The CITY may otherwise "contribute signifi-
cantly to the economic feasibility of low- and
moderate-income housing in the proposed housing devel-
opments."
H. Incentives.
The CITY wishes to comply with the intent of Government
Code Sections 65582 and 65583, by encouraging cooperative
participation of government and the private sector in an
effort to expand housing opportunities and accommodate the
housing needs of all economic levels, and to assist in the
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development of adequate housing to meet the needs of low-
and moderate-income households by way of "provision of
regulatory concessions and incentives."
I. Public Interest.
The COUNCIL confirms its findings and .determinations
that this AGREEMENT with OWNER is consistent with the
general plan, is in the best interest of the CITY, and will
promote the public peace, health and safety.
J. Council Authorization.
On 1982, the COUNCIL adopted Ordinance
Number (CCS), approving this Agreement with OWNER,
and authorized the City Manager to execute same on behalf of
the CITY.
AGREEMENT
IN WITNESS WHEREOF, and in consideration of the
performance of the mutual covenants herein contained, and
delivery of each and all of the considerations hereinbelow
set forth, the parties agree as follows:
1. The Project.
OWNER proposes to cause the following works of
improvement on the 4TH STREET PROPERTY (hereinafter referred
to as the "4TH STREET PROJECT"):
A. Remove from the rental market all existing
rental units on the SITE, in accordance with Removal
Permit No. 074R;
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B. Demolish and/or remove all existing struc-
tures on the SITE; and
C. Construct a single four-story building on the
SITE, complying with Tentative Tract Map No. 33579,
consisting of forty-two (42) condominium units and a
subterranean parking garage in the approximate config-
uration of the "footprint" attached as Exhibt "A", and
as is more fully described hereinbelow.
2. CITY Approval of PROJECT.
Notwithstanding present, changed or new CITY
Charter provisions, Codes, Ordinances, General Plans,
Housing Elements, Local Coastal Plan, Zoning, Planning,
Subdivision, Building Regulations and Standards, and/or
other enactments (hereinafter collectively referred to as
"Property Development Standards"), the CITY hereby approves
the subject condominium 4TH STREET PROJECT pursuant to
Tentative Tract Map No. 33579 (as it may from time to time
be amended by OWNER) as follows:-
A. Height.
(1) The subject building shall have no more
than four (4) stories;
(2) The building height limit shall be fifty
(50) feet, except as otherwise provided herein;
(3) The fifty (50) foot height limit shall
be measured from three (3) feet above the highest
grade level on the SITE, up to the ceiling of the
fourth floor penthouse;
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(4) The fifty (50) foot height limit shall
exclude all penthouse or roof structures fox the
housing of elevators, stairways, tanks, venti-
lating fans or similar equipment required to
operate and maintain the building, and fire or
parapet walls, mansards, skylights, steeples, roof
signs, flag poles, chimneys, smoke stacks, or
other similar structures and rooftop patios which
may be erected above said height limit;
(5) The height of subterranean garage may
extend to three (3) feet above the highest grade
level.
B. Yards.
(1) The front yard shall have a minimum
depth (set back) of twenty (20) feet;
(2) The rear yard shall have a minimum depth
(set back) of five (5) feet, measured from the
mid-line of the existing rear alleyway;
(3) The northerly side yard shall have a
minimum width of eight (8) feet; and
(4) The southerly side yard shall have a
minimum width of eight (8) feet.
C. Lot Coverage (Density).
The area occupied by buildings and structures may
exceed fifty percent (50%) of, and shall not exceed
sixty-six percent (66%) of the total lot area. The
following areas not part of the dwelling units may
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project into the front, rear and side yards, and in
calculating such lot coverage, the following areas
shall be excluded: (1) the subterranean garage; (2)
the width up to six (6) feet of all exterior, unen-
closed walkways, stairways, balconies, patios, porches,
and platforms; (3) any eave, canopy or roof covering
same; and (4) fireplace flues, ventilation ducts, and
greenhouse windows.
D. Condominium Units.
(1) The Building shall contain a total of no
more than forty-two (42) residential condominium
units;
(2) The first story shall contain no less
than fifteen (15) rental units ("FIRST FLOOR
UNITS");
(3) The second, third and fourth stories
shall contain the remaining twenty-seven (27)
units;
(4) With regard to the 15 FIRST FLOOR
UNITS:
a. There will be four (4) two-bedroom
units, and eleven (11) one-bedroom units;
b. Eight (8) units will have base
rents set to be affordable for low-income
households, consisting of two (2) two-bedroom
units and six (6) one-bedroom units;
8
c. Seven (7} units will have base
rents set to be affordable for moderate-
income households, consisting of two (2)
two-bedroom units and five (5) one-bedroom
units;
d. For purposes of this Agreement:
(i) Median income means the median
income for the County of Los Angeles as
determined by the United States
Department of Housing and Urban
Development, as may be adjusted or
revised from time to time;
(ii) Low income household means a
household with an annual income of less
than 80$ of median income;
(iii) Moderate income household
means a household with an annual income
of less than-120$ of median income.
(iv) A unit referred to herein is
affordable if the annual rent does not
exceed 25$ of annual income.
e. All 15 units will not be exempt
from the provisions of §1801(c} of the Rent
Control Charter Amendment;
A
f. The 15 FIRST FLOOR UNITS shall be
provided as affordable rental units for forty
(40) years or the life of the 4TH STREET
PROJECT, whichever is greater.
g. OWNER shall maintain such records
as are required by CITY to verify eligibility
for housing provided hereunder. The records
shall be open for inspection and copying by
CITY upon five (5) days' advance notice by
CITY.
(5) OWNER shall record a Declaration of
Restrictions (Deed Restrictions} to be recorded in
the chain of title of the 4TH STREET PROPERTY,
which will contain the provisions of Paragraphs
2D(1) -2D(4), inclusive. If "existing tenants" do
not qualify as low-income households, and the
"existing tenants" accept occupancy in the FIRST
FLOOR UNITS, this condition shall be waived until
such time as sufficient units are vacated by
"existing tenants". Said Deed Restrictions shall
be in a form approved by the City Attorney of CITY
and shall be recorded prior to demolition of
existing structures on the SITE.
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(6) The following named "existing tenants"
shall each have a right of first refusal to rent a
FIRST FLOOR UNIT, provided such person complies
with the Notice to Quit described in subparagraph
D(11) below:
(a) Patty Callucutt, 1034 4th Street,
Santa Monica, California 90403;
(b) Michael Morales, 1034-1/2 4th
Street, Santa Monica, California 90403;
(c) Mrs. Meeks, 1038 4th Street, Santa
Monica, California 90403;
(d) Joe Spano, 1048-A 4th Street, Santa
Monica, California 90403;
(e) Dale Miller, 1048-B 4th Street,
Santa Monica, California 90403;
(f) Mary Flynn Francis, 1048-C 4th
Street, Santa Monica, California 90403;
(g) Joan Boyd, 1048-D 4th Street, Santa
Monica, California 90403;
(h) Sharron Gerringer, 1050-A 4th
Street, Santa Monica, California 90403;
(i) Diane Glasser, 1050-C 4th Street,
Santa Monica, California 90403;
(j) Perry Morey, 1050-D 4th Street,
Santa Monica, California 90403..
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The right of first refusal shall be personal
_ to each such tenant, and not subject to
assignment or transfer.
(7) Construction of the new units will
commence within one-hundred eighty (180) days of
the date of demolition of all existing units on
the SITE.
(8) The OWNER will reimburse existing
tenants a minimum of Three Hundred Dollars
($300.00) for reasonable expenses incurred in
moving out of the existing units and back into the
new units;
(9) The OWNER shall pay to the existing
tenants a sum of money equal to the difference
between their present rent and a reasonable rent
paid by the tenants for comparable units during
the period of construction of the new units, for a
period not to exceed one year;
(10) As an alternative to the provisions in
subparagraphs (8) and (9) above, the OWNER may pay
one or more of the existing tenants a sum agree-
able to each of said tenants;
(11) Pursuant to Rent Control Charter
Amendment §1806(1), tenants of the existing units
on the SITE may not be given notice to quit the
premises until all necessary permits and approvals
have been obtained for demolition of the existing
12
units and construction of new units on the SITE.
. This includes all permits and approvals required
by the City of Santa Monica and the California
Coastal Commission. Notice to quit shall be
subject to the requirements of California Civil
Code §1946, and the landlord shall specifically
provide tenants with such notice no less than
thirty (30) days prior to the date of required
vacation of premises.
E. Subterranean Parkinq.
The 4TH STREET PROJECT shall include a
subterranean parking garage:
(1) There shall be a minimum of eighty-two
(82) off-street parking spaces;
(2) The ownership of FIRST FLOOR UNITS shall
include one (1) parking space for each such unit,
or more at OWNER's election;
(3) All units other than the FIRST FLOOR
UNITS shall include ownership of at least two (2)
spaces per unit.
F. Accessibility.
The 4TH STREET PROJECT shall be accessible to
handicapped persons.
iz
G. No Dedications.
The OWNER shall not be required to provide, and
the-PROJECT need not include or contain any reservation
or dedication of land for public or private purposes
except as otherwise provided in this Agreement.
H. Completion.
OWNER agrees to diligently prosecute to completion
the construction of the 4TH STREET PROJECT.
3. Bonuses and Incentives.
Pursuant to Government Code Section 65915, CITY
hereby grants OWNER the following bonuses and incentives for
the 4TH STREET PROJECT, notwithstanding any present, changed
or new CITY Charter provisions, Codes, Ordinances,. General
Plans, Specific Plans, Housing Elements, Local Coastal Plan,
Zoning, Planning, Subdivision, Permits, Building Regulations
and Standards, and/or other enactments ("Property Develop-
ment Standards") to the contrary:
A. The CITY shall not impose any new or
additional requirements or conditions on the 4TH STREET
PROJECT'S Final Tract Map, which are not already set
forth in Tentative Tract Map No. 33579;
B. The 4TH STREET PROJECT shall have up to four
(4) stories, and up to fifty (50) feet in height, and
as set forth in Paragraph 2A above;
C. The front yard set back shall be a minimum of
twenty (20) feet; the rear yard set back shall be a
minimum of five (5) feet; the northerly side yard shall
is
have a minimum set back of eight (8) feet, and the
southerly side yard shall have a minimum set back of
eight (8) feet, and as set forth in Paragraph 2B above;
D. The area occupied by buildings and structures
on the 4TH STREET PROJECT may exceed present lot
coverage standards up to and including sixty-six
percent (66$) of the lot area, and as is set forth in
Paragraph 2C above;
E. The CITY shall exempt the 4TH STREET PROJECT
from minimum parking space requirements applicable to
the FIRST FLOOR UNITS, so that said units shall include
ownership of no less than one (1) parking space per
unit;
F. The CITY shall use its best efforts to
encourage financial institutions and potential lenders
to provide OWNER with construction and permanent
financing for the 4TH STREET PROJECT;
G. The CITY agrees to expedite and streamline
the processing of permit applications for the PROJECT,
as set forth hereinbelow;
H. The CITY shall exempt the 4TH STREET PROJECT
from any and all requirements that bathrooms, laundry
rooms and similar rooms be provided with natural
ventilation by means of an op enable exterior opening,
and in lieu thereof, a mechanical ventilating system
may be provided.
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I. The CITY shall permit all lofts and
mezzanines of the top floor as two-thirds (2/3) of the
floor area of the room it is located in (said "room" to
include the area of adjoining bathrooms, closets,
stairways and other utility areas).
J. Pursuant to Government Code §65915(d), the
CITY hereby exempts each and all of the FIRST FLOOR
UNITS from the following provisions of local ordinance
which may cause an indirect increase in the cost of the
housing units to be developed; OWNER shall not. be
required to pay to CITY any portion of the following
assessments, fees and charges directly attributable to
the FIRST FLOOR UNITS, and OWNER shall be charged only
a pro-rata amount [27/42] of any such assessment, fee
or charge that is not directly attributable or
chargeable to the FIRST FLOOR UNITS:
(1) The Condominium Permit Fee for each of
the FIRST FLOOR UNITS;
(2) The Recreation and Parks Assessment;
(3) The Trees and Parkways Assessment;
(4) The Water Construction and Connection
Fee;
(5) The Sewer Connection Assessment;
(6) The Sewer Conection Fee per unit;
(7) The Plumbing, Electrical, and Mechanical
Permit Fees;
lh
(8) Any required fee for street or sidewalk
Resurfacing Permits or Use of Public Proprty
Permits;
(9) Fees for filing by Tentative Tract Map,
Final Tract Map, and amendments and modifications
thereto;
(10) Other charges similar to those set
forth above, which would otherwise cause an
indirect increase in the cost of the FIRST FLOOR
UNITS.
Nothing herein shall preclude the CITY from taking any
additional action or actions to assist OWNER to construct
and finance the 4TH STREET PROJECT.
4. Expedited Processing.
In order to expedite and streamline the processing
of permit applications for the 4TH STREET PROJECT (pursuant
to Government Code §65913 et seq.), the CITY hereby agrees:
A. The Director of Planning is hereby authorized
and .designated to act as a central administrator for
processing any and all permits required for the
development;
B. The Director of Planning, and the Santa
Monica Planning Department shall consult with OWNER and
its representatives, from time to time as necessary,
and assist OWNER in making all development and permit
applications;
,~
C. The Director of Planning shall cooperate with
OWNER in making readily available by referral, all
staff that has expertise in all areas in which permits
are required from the CITY, and in providing informa-
tion on all permit requirements and standards;
D. The CITY agrees to consolidate hearings,
whenever possible or practicable, for the purpose of
minimizing the time required for OWNER to process
permit applications and obtain permits necessary for
the PROJECT;
E. The CITY will accept for filing the Final
Tract Map and/or modifications to Tentative Tract Map
No. 33579; the CITY will conditionally approve such map
or maps, on condition that OWNER obtain an appropriate
Coastal Permit.
F. The CITY will approve, conditionally approve,
or disapprove any: (1) Final Tract Map, or (2)
modifications thereto or (3) modifications to the
Tentative Tract Map concerning the 4TH STREET PROJECT
within sixty (60) days of the date on which completed
applications for such have been received; and
G. The CITY shall approve, conditionally
approve, or disapprove all development and permit
applications concerning the 4TH STREET PROJECT within
sixty (60) days from the date on which each such permit
application has been received.
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H. Failure of the CITY to act upon such respec-
tive maps and application within such sixty (60) day
period shall be deemed an approval thereof.
5. Sixth Street Development.
OWNER is also the owner of that certain real
property situated in the City of Santa Monica, County of Los
Angeles, California, commonly known as 2616, 2616-A and
2616-1/2 6th Street, Santa Monica, California (hereinafter
referred to as the "6TH STREET PROPERTY"), and more
particularly described as:
Lot 22 of Block B of Vawter's 4th Street
Tract, in the City of Santa Monica, as
per map recorded in Book 3, Page 92 of
Maps, in the office of the County
Recorder of said County.
Said PROPERTY is located inside the Coastal Zone within
an R-4 Multiple Residential District. The 6TH STREET
PROPERTY presently consists of a three (3) unit apartment
building.
On October 22, 1981, the Santa Monica Rent Control
Board granted Removal Permit No. 080R, permitting the
demolition of existing structures on the 6TH STREET
PROPERTY, in accordance with several conditions. Said
proceedings are described in the Rent Control Board files,
to which reference is made for further particulars.
As a condition to CITY's approval of the 4TH STREET
PROJECT end the granting of bonuses and incentives for said
PROJECT on the 4TH STREET PROPERTY, the CITY hereby requires
and OWNER hereby agrees to the following terms:
A. OWNER may remove from the rental market all
existing rental units on the 6TH STREET PROPERTY, in
accordance with Removal Permit No. 080R, and demolish
and/or remove all existing structures thereon;
B. OWNER shall construct, or cause to be
constructed, an 8 unit apartment building on the 6TH
STREET PROPERTY pursuant to the plans (attached hereto
as Exhibit "B"), comprised. as follows:
(1) There will be eight (8) one-bedroom
units;
(2) Two (2) units will have base rents set
to be affordable for low-income households;
(3) The remaining 6 units will have base
rents set to be affordable for moderate-income
households;
(4) All 8 units will not be exempt from the
provisions of §1801(c) of the Rent Control Charter
Amendments;
(5) The terms "median income", "low income",
"moderate income", and "affordable" shall have the
same meanings as set forth in Paragraphs 2D(4) and
(5) above.
~n
(6) The units shall be provided as afford-
. able rental units for forty (40) years or the life
of the 6TH STREET PROJECT, whichever is greater.
(7) OWNER shall maintain such records as are
required by CITY to verify eligibility for housing
provided hereunder. The records shall be open for
inspection and copying by CITY upon five (5) days'
advance notice by CITY.
(8) OWNER shall record a Declaration of
Restrictions (Deed Restrictions) to be recorded in
the claim of title of the 6TH STREET PROPERTY,
which will contain the provisions of Paragraphs
SB(1) - SB(7), inclusive. If existing tenants do
not qualify as low-income households, and the
existing tenants accept occupancy in one of said
units, this condition shall be waived until such
time as sufficient units are vacated by existing
tenants. Said Deed Restrictions shall be in a
form approved by the City Attorney of CITY and
shall be recorded prior to demolition of the
existing structures on the 4TH STREET PROPERTY.
(9) The following named "existing tenants"
shall each have a right of first refusal to rent
one of the new units, provided such person
complies with the Notice to Quit described in
Subparagraph G below:
2i
(a) Fran Shapiro, 2616 6th Street,
Santa Monica, California 90403;
(b) Billy Larson, 2616-A 6th Street,
Santa Monica, California 90403; and
(c) Mary Beth McCarthy, 2616-1/2 6th
Street, Santa Monica, California 90403.
The right of first refusal to rent shall be
personal to each such tenant, and shall not be
subject to assignment or transfer.
(10) Construction of the new units will
commence within one-hundred eighty (180} days of
the date of the demolition of all existing units.
C. Pursuant to ^vovernment Code Section 65915,
CITY hereby grants to OWNER the following bonuses and
incentives for the 6TH STREET PROPERTY, notwithstanding
any present, changed or new CITY "Property Development
Standards" to the contrary:
(1) Each of the eight apartment units is and
shall be exempt from a Building Permit Fee;
(2) The area occupied by buildings and
structures may exceed present lot coverage
standards up to and including sixty-six percent
(66$) of the lot area;
(3) The CITY shall exempt and/or grant a
variance from minimum parking space requirements,
so as to permit eight (8) parking spaces (one per
unit);
22
(4) The CITY shall exempt and/or grant a
variance from maximum unit limits, so as to permit
eight (8) one-bedroom, one-bath apartment units of
approximately 635 square feet each.
D. The OWNER will reimburse existing tenants a
minimum of Three Hundred Dollars ($300.00) for
reasonable expenses incurred in moving out of the
existing units and back into the new units;
E. The OWNER shall pay to the existing tenants a
sum of money equal to the difference between their
present rent and a reasonable rent paid by the tenants
for comparable units during the period of construction
of the new units, for a period not to exceed one year;
F. The OWNER may, as an alternative to the
provisions in subparagraphs (D) and (E) above, pay
existing tenants a sum agreeable to said tenants;
G. Pursuant to Rent Control Charter Amendment
§1806(1) tenants of existing units on the 6TH STREET
PROPERTY may not be given notice to quit the premises
until all necessary permits and approvals have been
obtained for demolition of the existing units and
construction of new units on the 6TH STREET PROPERTY.
This includes all permits and approvals required by the
City of Santa Monica and the California Coastal
~~
Commission. Notice to quit shall be subject to the
requirements of California Coastal Commission. Notice
to~quit shall be subject to the requirements of
California Civil Code §1946, and the landlord shall
specifically provide tenants with such notice no less
than thirty (30) days prior to the date of required
vacation of the premises.
H. OWNER shall be required to commence construc-
tion of said 8 unit apartment building within two (2)
years from the date construction commences on the 4TH
STREET PROJECT. In the event OWNER defaults as to this
provision, then OWNER shall forthwith quit-claim and
dedicate title to the 6TH STREET PROPERTY to the CITY
and shall transfer to CITY all plans for the apartment
building to be built on the 6TH STREET PROPERTY. Prior
to the execution of this Agreement, OWNER shall deliver
to CITY a Preliminary Title Report on the 6TH STREET
PROPERTY in a form satisfactory to the City Attorney of
CITY.
I. The CITY agrees that all necessary and
appropriate variances, density bonuses, demolition and
building permits, and other permits and approvals, will
be promptly issued by the CITY for the above-described
project on the 6TH STREET PROPERTY, as provided in
Paragraph 4 herein.
~a
J. The CITY will use its best efforts to exempt
thfl 6TH STREET PROPERTY from any ordinance, fee or
requirement that would create an indirect expense in
the cost of this housing development [pursuant to
Government Code §65915, and other applicable law], as
set forth in Paragraph 3J above.
6. Events of Default.
A. OWNER shall be in default under this
Agreement upon the happening of one or both of the
following events or conditions:
(1) If a warranty, representation or
statement made or furnished by OWNER to the CITY
is false or proves to be false in any material
respect when it was made;
(2) OWNER has not complied with one or more
of the terms or conditions of this Agreement.
B. OWNER may, at :its option, and without
liability, terminate this Agreement by serving written
notice of termination on CITY, in the event:
(1) The COUNCIL fails or refuses to approve
any tentative or final subdivision map, or
modifications thereto, submitted in accordance
with this Agreement, for any portion of the 4TH
STREET PROJECT, within sixty (60) days after such
map has been submitted to such governing body;
25
(2) The CITY, through its appropriate
respective departments, fails or refuses to
• approve any variances, demolition permits,
building permits, or other permits required for
the 4TH STREET PROJECT described herein, within
sixty (60) days after such respective application
for permit has been submitted to the appropriate
governing body;
(3) The 4TH STREET PROJECT is not approved
by the California Coastal Commission.
(4) There are changes in the economic
conditions prior to the demolition of existing
units on the 4TH STREET PROPERTY, which render, in
the opinion of OWNER, further development of the
subject properties unprofitable to OWNER.
(5) Prior to the demolition of existing
units on the 4TH STREET PROJECT, OWNER is unable
to secure adequate and/or reasonable financing for
the development of the 4TH STREET PROJECT;
C. Upon the occurrence of any material breach of
this Agreement by CITY, OWNER shall give written notice
thereof to the CITY, and CITY shall have thirty (30)
days to cure said default.
In the event such default is not timely cured,
OWNER may, at its option, and without liability,
terminate this Agreement by serving written notice on
CITY.
26
D. The two (2) year time period for commencing
construction on the 6TH STREET PROPERTY shall be
excused and extended for that additional period of time
equal to the time during which:
(1) OWNER, after the first two months of its
marketing and/or sales program, has not sold and
closed escrows on at least eighty-five percent
(85% or 23 units) of the 27 condominium units
which are not FIRST FLOOR UNITS [it being the
calculation of OWNER that his "break even" point
on the 4TH STREET PROJECT will be upon the sale of
all FIRST FLOOR UNITS and 85% of the remaining
condominium units7;
(2) OWNER is prevented, delayed or unable to
proceed with the 4TH STREET PROJECT by reason of
any of the following forces reasonably beyond the
control of OWNER:
(a) war, insurrection, riot, acts of a
public enemy, theft, vandalism, accident, or
casualty;
(b) fire, flood, severe weather,
earthquake or other acts of God;
(c) governmental restriction, litiga-
tion, or acts or failures to act of any
governmental agency or entity.
27
(3) OWNER is prevented, delayed, or unable
to proceed with the 4TH STREET PROJECT by reason
of a problem in securing necessary labor,
materials or tools, strikes, lockouts, delays of
any contractor, subcontractor or supplier.
7. Procedure Upon Default.
A. Upon the occurrence of an event of default by
OWNER, CITY may declare OWNER to be in default, and
may enforce or terminate this Agreement. Prior to any
declaration of default, written notice must be given to
OWNER of the nature of such default, and OWNER shall
have thirty (30) days to cure said default;
B. Upon any termination of this Agreement, the
parties hereto shall execute an appropriate notice of
termination and record same in the official records of
Los Angeles County.
8. Changes in City Regulations.
The CITY agrees that, except as otherwise provided
in this Agreement, the "Property Development Standards" in
force at the time of the effective date of this Agreement,
shall be those rules, regulations and official policies
applicable to the 4TH STREET PROJECT and the 6TH STREET
PROPERTY, notwithstanding any change in Property Development
Standards adopted by the CITY which would otherwise affect
the 4TH STREET PROJECT or the 6TH STREET PROPERTY, or
conflict with this Agreement. The parties agree the
foregoing:
A. Shall not apply to any changes in fire or
safety standards for erection or construction o£ the
subject building; and
B. Shall not prevent the CITY from denying or
conditionally approving any subsequent development
project application by a third party, on the basis of
this Agreement, or on the basis of such existing or new
rules, regulations and policies.
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 no
further, are hereby repealed or modified to that extent
necessary to effect the provisions of this Agreement.
9. Hold Harmless.
OWNER agrees to and-shall hold the CITY, its
officers, agents, employees and other representatives
harmless from liability for damage or claims for damage for
personal injury including death and claims for property
damage which may arise from the direct or indirect opera-
tions of the OWNER or those of its contractor, subcontrac-
tor, agent, employee or other person acting on its behalf,
which relate to the 4TH STREET PROJECT and the 6TH STREET
29
PROPERTY. OWNER agrees to and shall defend the CITY and its
officers, agents, employees and representatives from actions
£or damages as described above caused or alleged to have
been caused by reason of OWNER's activities in connection
with the 4TH STREET PROJECT or the 6TH STREET PROPERTY,
regardless of whether or not the CITY prepared, supplied or
approved plans or specifications or both for the 4TH STREET
PROJECT or the 6TH STREET PROPERTY.
10. Attorneys' Fees.
In the event OWNER is required to commence
litigation or other proceedings to enforce any of the
provisions of this Agreement, and OWNER is the prevailing
party, in addition to such other relief as may be granted,
OWNER shall be entitled to a reasonable sum as and for his
attorneys' fees in such litigation which shall be determined
by the Court in such litigation, or in a separate action
brought for that purpose.
11. Mutual Release and Dismissal of Lawsuits.
' A. Within 30 days after the execution of this
Agreement by CITY, OWNER shall cause to be filed a
dismissal with prejudice in each and every lawsuit
filed by OWNER in which CITY or the SANTA MONICA RENT
CONTROL BOARD is named as a party.
B. OWNER and the CITY each does hereby release
and discharge the other, their respective heirs,
executors, assigns, agents, employees, representatives
~~
and all other persons of and from all claims, demands
an$ causes of action o£ every kind and nature each may
now know or expect to exist either in favor or against
the other by reason of any matter or issue as of the
date of this Agreement.
C. Each of the parties hereby waives any and all
rights which each of them may have under the provisions
of Section 1542 of the Civil Code of the State of
California, which section provides as follows:
"A general release does not extend to
claims which the creditor does not know
or suspect to exist in his favor at the
time of executing the release, which if
known to him must have materially
affected his settlement with the
debtor."
12. Amendment of Agreement.
This Agreement may be amended or modified in whole
or in part only by mutual written consent of the parties.
13. General Provisions.
A. Waiver. The waiver by any party of a breach
of any provision of this Ageement by any other party
shall not operate or be construed as a waiver of any
subsequent breach of any type.
31
B. Binding Effect. All of the terms of this
Agreement shall be binding upon, and inure to the
benefit of, and be enforceable by, the parties hereto
and their spouses, families, heirs, executors,
administrators, employees, agents, officers, directors,
transferees, predecessors, successors in interest,
assignors and/or assigns, and all persons claiming by
or through such respective parties.
C. Assignment. This Agreement shall not be
severable from OWNER's interest in the 4TH STREET
PROJECT. Any transfer of the 4TH STREET PROJECT shall
automatically operate to transfer the benefits and
burdens of this Agreement. OWNER may freely sell,
transfer, exchange, encumber, or otherwise dispose of
his interests in the 4TH STREET PROJECT andfor the 6TH
STREET PROPERTY without the consent of the CITY.
D. Relationship Of Parties. It is understood
the contractual relationship between the CITY and OWNER
is such that OWNER is an independent contractor, and
not the agent of the CITY.
E. Execute Other Documents. Each of the parties
hereto specifically agrees to execute and deliver such
other and further instruments, documents and things as
may reasonably be required to effectuate the terms,
conditions and objectives of this Agreement.
~~
F. Counterparts. This Agreement may be executed
in ,two or more counterparts, each of which shall be
deemed to be a duplicate original, but all of which,
together, shall constitute one and the same instrument.
G. Notices. Any notices to be given hereunder
by either party to the other may be effected by
personal delivery, in writing, or by registered or
certified mail, postage prepaid, with return receipt
requested. Mailed notices shall be addressed as
follows:
NAME
ADDRESS
OWNER Harris Toibb
307 21st Street
Santa Monica, CA 90401
CITY OF SANTA MONICA ATTN: City Attorney
City Hall
1685 Main Street
Santa Monica, CA 90401
Each party hereto may change its address by giving
written notice to every other party in accordance with
the terms of this Paragraph. Notices delivered
personally shall be deemed communicated as of the date
of actual receipt; notices delivered by mail shall be
deemed .communicated as of the date of the first
attempted delivery thereof by the Post Office.
33
14. Duration of Agreement.
This Agreement shall expire forty (40) years from
the date_of COUNCIL approval.
15. Recording of Agreement. The parties hereto shall
cause this Agreement, or a Memorandum thereof, to be
recorded in the official records of Los Angeles County.
IN WITNESS WHEREOF, this Agreement has been executed by
the parties on the day and year first above written.
OWNER
CITY OF SANTA MONICA,
a Municipal Corporation
HARRIS TOIBB
Attest:
By
ANN M. SHORE,
City Clerk
Approved as to Form:
ROBERT M. MYERS,
City Attorney,
City of Santa Monica
By
JOHN ALSCHULER,
City Manager
SANTA MONICA CITY COUNCIL
By
RUTH YANNATTA GOLDWAY,
Mayor
34
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