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sr-092810-7c~~.., .,; ~a~,e8 nr~,ets~~' To: C~tayor and City Council City Cos~racit leetirag: Septe€r~ber 28, 201 ~ Agenda Iterroa ~' ""C- From: Marsha Jones iVtoutrie, City Attorney Subject: Qrdinance Adopting Development Agreement 10-001 for the Construction of a M1lew Biotechnology Research and Development Facility Re~s~er~cled A~#ir~ Staff recommends that the City Council adopt tt~e attached ordinance. ~xecutiv~ Szarnrrsary At its meeting on September 14, 2010, the City Council introduced for first reading an ordinance adopting Development Agreement 10-001 for the construction of a new biotechnology research and development facility. The ordinance is now presented to the City Council for adoption. Rrepar~ed by; IU€arsha Jones ~outrie, City Attorney Apprcrvoti; _ Fc~ ara~~ tcs Coun~ii: t~P rsha Jan s iUoutr Ci y Atto ne Rod Gould City fVlanager 1 - ~- EXHIBIT 1 DEVELOPMENT AGREEMENT 4 DEVELOPMENT AGREEMENT BETWEEN CITY OF SANTA MONICA AND AGENSYS, INC. FOR 1800 STEWART STREET DEVELOPMENT AGREEMENT This Development Agreement ("Agreement"), dated for reference purposes 2010, is entered into by and between AGENSYS, INC., a California corporation ("Agensys"), 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 (the "City"), with reference to the following facts: RECITALS A. Pursuant to Califomia Government Code Section 65864 et seq., Chapter 9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No. 2242 (collectively, the "Development Agreemeut Statutes"), the City is authorized to enter into binding development agreements with persons or entifies having a legal interest or an equitable interest in real property for the development of such real property. B. Agensys is a leading biotechnology firm that researches, develops and manufactures new drugs to treat cancer. Agensys proposes to relocate and consolidate its existing corporate office, research and development, and manufacturing functions currently located elsewhere in the City of Santa Monica to a new biotechnology research and development and light manufacturing facility as more fully described in this Agreement. Agensys intends to construct the Project on that certain parcel of land located in the City of Santa Monica, State of California, commonly known as 1800 Stewart Street, all as more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (collectively, the "Property"). C. The Property is owned by the City, and is the subject of that certain Commercial Lease, dated November 7, 1980, originally entered into by and between Southern Pacific Transportation Company, a corporation, as "Lessor," and The Richaar Partnership, a partnership composed of Lawrence N. Field and Richard L. Weiss, as "Lessee", as amended by that certain First Modification of Lease Agreement, dated March 5, 2007, by and between the City of Santa Monica, a municipal corporation, as successor-in-interest to Southern Pacific Transportation Company, and 1800 Stewart/Richlar, LLC, a California limited liability company, as successor-in-interest to the Richaar Partnership, as amended further by that certain Assignment of Lease, dated August 15, 2007, by and between 1800 Stewart/Richlar, LLC, as "Assignor," to CF .SANTA MONICF, OFFICE VI, LP, as "Assignee" (collectively, the "Ground Lease"). Agensys has entered into an agreement to purchase the interest of the "Lessee" under the Ground Lease and therefore has an equitable interest in the Property. D. City and Agensys are, concurrently herewith, entering into an Amendment to the Ground Lease for the purpose of extending the term thereof, and making other modifications thereto, with the intention that, given that the Ground Lease and this Agreement will be between the same parties, the terms of the Ground Lease and this Agreement shall be consistent in all material respects. E. The Property is currently developed with two post-production buildings containing approximately 64,732 and 57,656 square feet of floor area, respectively, and 204 parking spaces in a surface lot. The existing buildings are legally non-conforming as to parking. One building will be demolished and one will be partially demolished and partially renovated. On February 17, 2009, the City issued Administrative Approva108- AA-004 to allow the addition at the Property of approximately 7,315 square feet of mezzanine space and 46 additional parking spaces, for a total of 250 spaces. F. The City has included the Property within the Bergamot Transit Village land use designation under the City's recently adopted Land Use and Circulation Element of its General Plan ("LUCE"). The Property is located within the Light Manufacturing / Studio District ("LMSD") under the City's zoning ordinance. The City intends to update the zoning ordinance to conform to the new LUCE. To aid in the redevelopment of the Property, the City and Agensys desire to allow Agensys to construct a new facility totaling approximately 159,558 square feet of Floor Area (defined below), up to 220 parking spaces, and related facilities on the Property. G. Agensys filed an application for a Development Agreement, pursuant to Santa Monica Municipal Code ("SMMC") Section 9.48.020, on May 13, 2010 (the "Development Application"). The Development Application was designated by the City as Application No. DEV-10-001. The Development Application is for the planned development of the Property that would replace the two existing buildings, as well as the existing surface parking area, with a project that will include the following: (a) approximately19,872 square feet for administrative offices; (b) approximately 11,514 square feet for amenities, including an employee cafeteria and a fitness center; (c) approximately 48,610 square feet for manufacturing of drugs and similar treatments, including cancer treatments for clinical trials; (d) approximately 72,052 square feet for research and development, including laboratories and associated work space; (e) approximately 22,000 square feet of open space, including a publicly accessible, privately maintained pocket park and a pedestrian pathway providing a connection to Bergamot Station and the future Expo Line station; (f) an approximately 8,758 square- foot mechanical yard (partially enclosed); (g) parking for a maximum of 205 cazs, surface parking spaces which will be screened from view to the south; and (h) related improvements, all as shown on the Project plans and elevations attached to this Agreement as Exhibit "B" (the "Project"). The Project is more fully described in the Mitigated Negative Declaration dated September, 2010 for the Project (the "MND") and as set forth in this Agreement. H. The Project would represent a net increase over existing uses of only approximately 31,267 square feet of building area. However, Interim Ordinance No. 2242 prohibits the issuance of permits for new development in the LMSD zone that represents a net increase of 5,000 square feet, except for projects that (a) comply with the interim development standards in that ordinance or (b) are developed pursuant to a 2 development agreement adopted in accordance with SMMC Chapter 9.48. Adoption of this Agreement will allow for the issuance of permits for the Project. I. Agensys has paid all necessary costs and fees associated with the City's processing of the Development Application and this Agreement. J. The primary purpose of the Project is to permit Agensys to construct the Project on the Property and thereby provide the LMSD zone with a new biotechnology research and development and light manufacturing facility. The Parties desire to enter into this Agreement in conformance with the Development Agreement Statutes in order to achieve the development of the Project on the Property. The Parties likewise desire to provide a land use on the Property consistent with the Bergamot Transit Village District land use designation under the City's General Plan and enable the City to retain an important biotechnology company currently located in the City and provide additional public benefits, al] in the promotion of the health, safety, and general welfare of the residents of the City. The Project will be a vital part of the redevelopment of the Bergamot Transit Village District and requires the assurances set forth in this Development Agreement with respect to the identification of specific development standards and requirements in order to accommodate the development of the Project on the Property. I. The City Council has determined that a development agreement is appropriate for the proposed development of the Property. This Agreement will (1) eliminate uncertainty in planning for the Project and securing orderly development of the Project, (2) assure installation of necessary improvements on the Property, (3) provide for public infrastructure and services appropriate to development of the Project, (4) preserve substantial City discretion in reviewing subsequent development of the Property, (5) secure for the City improvements that benefit the public, and (6) otherwise achieve the goals and purposes for which the Development Agreement Statutes were enacted. J. This Agreement is consistent with the public health, safety, and welfare needs of the residents of the City and the surrounding region. The City has specifically considered and approved the impact and benefits of the development of the Project on the Property in accordance with this Agreement upon the welfare of the region. The Project will provide a number of public benefits, including without limitation, the following: (i) retaining an important biotechnology technology company currently located in the City; (ii) retaining and providing additional high paying skilled jobs; (iii) providing a pedestrian connection through the Property as well as generous sidewalks along Stewart Street to facilitate public access to and to promote transit usage of the Expo Line; (iv) improving the aesthetics of the Property by replacing unsightly existing structures with new, well-designed buildings and enhanced landscaping; and (v) providing privately maintained publicly accessible open space adjacent to Bergamot Station. K. The City Council has found that the provisions of this Development Agreement are consistent with the relevant provisions of (1) the City's General Plan and (2) the Zoning Ordinance (defined in Section 1.46 below), including the standards of the LMSD zone. L. On September 28, 2010, the City Council held a duly noticed public hearing on the Development Application and at such hearing the City Council adopted the MND and adopted Ordinance No. ,approving this Agreement. NOW THEREFORE, in consideration for the covenants and conditions hereinafter set forth, the Parties hereto do hereby agree as follows: ARTICLE 1 DEFINITIONS The terms defined below have the meanings in this Agreement as set forth below. 1.1 "Agreement" means this Development Agreement entered into between the City and Agensys as of the Effective Date. 1.2 "ARB" means the City's Architectural Review Board. 1.3 "Assumption Agreement" has the meaning set forth in Section 13.3 below. 1.4 "Breach" has the meaning set forth in Section 1 l.l.l below. 1.5 "Buildings" means the three new primary buildings to be constructed as part of the Project, which will contain, in the aggregate, a total of up to 156,800 square feet of Floor Area. 1.6 below. 1.7 1.8 designee. "Certificate of Performance" has the meaning set forth in Section 15.18 "City" is defined in the introductory paragraph above. "City Council" means the City Council of the City of Santa Monica, or its 1.9 "City General Plan" or "General Plan" means the applicable General Plan of the City of Santa Monica. 1.10 below. 1.11 1.12 A above. "City Indemnified Parties" has the meaning set forth in Section 14.1 "Damages" has the meaning set forth in Section 14.1 below. "Development Agreement Statutes" has the meaning set forth in Recital 1.13 "Development Application" has the meaning set forth in Recital G above. 1.14 "Agensys Parties" has the meaning set forth in Section 14.1 below. 1.15 "Discretionary Approvals" are actions which require the exercise of judgment or a discretionary decision, and which contemplate and authorize the imposition of revisions or additional conditions, by the City, including any board, commission, or department of the City and any officer or employee of the City. Discretionary Approvals do not include any Ministerial Approvals. 1.16 "Effective Date" has the meaning set forth in Section 9.1 below. 1.17 "Estoppel Certificate" has the meaning set forth in Section 15.6 below. 1.18 "Event of Monetary Default" has the meaning set forth in Section 11.2 below. 1.19 "Event of Non-Monetary Default" has the meaning set forth in Section 11.3.1 below. 1.20 "Excusable Delays" has the meaning set forth in Section 15.8.1 below. 1.21 "Existing Regulations" has the meaning set forth in Section 5.1.1 below. 1.22 "Hearing Notice" has the meaning set forth in Section 11.4.2 below: 1.23 "Including" means "including, but not limited to." 1.24 "Legal Action" means any action in law or equity. 1.25 "LMSD" has the meaning set forth in Recital F above. 1.26 " LUCE" has the meaning set forth in Recital F above. 1.27 "Ministerial Approval" means an action which merely requires the City (including any board, commission, or department of the City and any officer or employee of the City), in the process of approving or disapproving a permit or other entitlement, to determine whether there has been compliance with applicable statutes, ordinances, regulations, or conditions of approval. 1.28 "Mortgage" has the meaning set forth in Section 12.1 below. 1.29 "New Technical Requirements" has the meaning set forth in Section 7.3.4 below 1.30 "Notice of Breach" has the meaning set forth in Section 11.1.1 below. 1.31 "Parties" mean both City and Agensys and "Party" means either City or Agensys, as applicable. 1.32 "Periodic Review" has the meaning set forth in Section 10.1 below. 1.33 "Planning Director" means the Planning Director of the City of Santa Monica, or his or her designee. 1.34 "Project" has the meaning set forth in Recital G above. 1.35 "Property" has the meaning set forth in Recital B above. 1.36 "Request for Notice" has the meaning set forth in Section 12.1.3 below. 1.37 "Secured Lender" has the meaning set forth in Section 12.1 below. 1.38 "Secured Lender's Cure Period" has the meaning set forth in Section 12.1.3 below. 1.39 "SMMC" has the meaning set forth in Recital G above. 1.40 "Subsequent Code Changes" has the meaning set forth in Section 5.1.1 below. 1.41 "Technical City Permits" has the meaning set forth in Section 7.1.1 below. 1.42 "Technical Codes" has the meaning set forth in Section 7.3.2 below. 1.43 "Technical Permit Applications" has the meaning set forth in Section 7.1.2 below. 1.44 "Term" has the meaning set forth in Section 9.2.1 below. 1.45 "Termination Certificate" has the meaning set forth in Section 9.2.2 below. 1.46 "Zoning Ordinance" means Chapter 9 of the Santa Monica Municipal Code as in effect on the Effective Date, a copy of which is attached hereto as "Exhibit ,.E.. 6 ARTICLE 2 DESCRIPTION OF THE PROJECT 2.1 General Description. The Project includes all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans, as such plans maybe modified in accordance with this Agreement. If there is a conflict or inconsistency between the text of this Agreement and the Project Plans, the Project Plans will prevail. 2.1.1 Principal Components of the Proiect. One existing building will be demolished and one will be partially demolished and partially renovated to allow for the development of the Project. The Project will include the following principal components: 2.1.2 One of the primary Buildings, facing Stewart Street, will be a three-story administrative and research and development building with a maximum height of approximately 48 feet. This Building will contain a total of approximately 72,052 square feet of research laboratories and supporting facilities on the first and second floors. This Building will also contain approximately 19,872 square feet of administrative offices on the third floor, as well as entry lobby space. 2.1.3 The second primary Building will be a single story amenities building, with a maximum height of approximately 25 feet. This Building will contain up to 11,514 square feet of space for employee amenities, including meeting rooms, employee-only fitness center, and pedestrian cafe open to the public that will also function as an employee cafeteria. These amenities will be located at grade, with direct access to the pocket park and pedestrian pathway. 2.1.4 The third primary Building will be a two-story manufacturing building, with a maximum height of approximately 36 feet. This Building will contain approximately 48,610 square feet of manufacturing and related facilities. 2.1.5 The Project will provide a minimum of 180 and a maximum of 205 surface parking spaces for employees and visitors. 2.1.6 The Project will contain approximately 22,000 square feet of open space, including a publicly accessible; privately maintained pocket park and a pedestrian pathway providing a connection to Bergamot Station and the future Expo Line station. Covered walkways, shaded entries and green spaces will be provided throughout the property to provide a comfortable human scale and inviting aesthetic. 2.1.7 The Project will include an approximately 8,758 square-foot mechanical yard (partially enclosed). 2.2 No Obligation to Develop. 2.2.1 Except as specifically provided herein: (a) Nothing in this Agreement shall be construed to require Agensys to purchase the Ground Lease or to proceed with the construction or any other implementation of the Project or any portion thereof. (b) The decision to proceed or to forbear or delay in proceeding with implementation or construction of the Project shall be in Agensys's sole discretion. (c) Failure by Agensys to proceed with construction or implementation of the Project or any portion thereof shall not give rise to any liability, claim for damages or cause of action against Agensys, except as may arise pursuant to a nuisance abatement proceeding under SMMC Chapter 8.96, or any successor legislation. 2.2.2 Failure by Agensys to proceed with construction or implementation of the Project or any portion thereof shall not result in any loss or diminution of development rights, except upon expiration of Agensys's vested rights pursuant to this Agreement. 2.2.3 Notwithstanding any provision of this Section 2.2 to the contrazy, Agensys shall be required to implement all the fees and exactions and mitigation measures required under this Agreement in accordance. with Exhibit "C, Exhibit "D" and Exhibit "G" attached to this Agreement. 2.3 [Intentionally omitted.] 2.4 Vested Rights. 2.4.1 Approval of Project Plans. The City hereby approves the Project Plans. The City shall maintain a complete copy of the Project Plans, stamped "Approved" by the City, in the Office of the City Clerk, and Agensys shall maintain a complete copy of the Project Plans, stamped "Approved" by the City, in its offices at the Project site. The Project Plans to be maintained by the City and Agensys shall be ahalf- size set. Further detailed plans for the construction of the buildings and improvements, including, without limitation, structural plans and working drawings shall be developed by Agensys based upon the Project Plans. 2.4.2 Minor Modifications to Project. Agensys, with the approval of the Planning Director, may make minor changes to the Project or Project Plans ("Minor Modifications") without amending this Agreement; provided that the Planning Director makes the following specific findings that the Minor Modifications: (i) are consistent with the Project's approvals as approved by the City Council; (ii) are consistent with the Project's approvals by the ARB and the Planning Commission; (iii) are consistent with the provisions, purposes and goals of this Agreement; (iv) would not result in reduction of setbacks by more than ten percent; (v) would not result in reduction of the number of parking spaces by more than ten percent; (vi) are not detrimental to the public health, safety, convenience or general welfare; and (vii) will not significantly and adversely affect the public benefits associated with the Project. Notwithstanding anything to the contrary contained herein, approval by the Planning Director shall not be required for modifications to the Project Plans that are not inconsistent with the development standards set forth herein or in the Existing Regulations (defined in Section 5.1.1 below). 2.4.3 Modifications Requiring Amendment to this Agreement. Agensys shall not make any "Major Modifications" (defined below) to the Project without first amending this Agreement to permit such Major Modifications. A "Major Modification" means any proposed modification to the Project which would conflict with the following standards: (a) The minimum setbacks of the Project, which are set forth in Section 2.8, shall not be reduced by more than ten percent; (b) The aggregate gross Floor Area of all components of the Project shall not exceed the maximum Floor Area set forth in Section 2.8. below; (c) No Building in the Project shall exceed three stories or a Building Height of fifty-one feet (51'), except as permitted under the Existing Regulations or as set forth in Section 7.3.4 below; (d) The use of the Project shall not be varied from the permitted uses defined in Section 2.5 below; (e) The number of parking spaces shall not be more than ten percent less than the number of parking spaces required pursuant to Section 2.7 below; (f) The number or location of curb cuts shown on the Project Plans shall not be materially changed; (g) Design, massing and building configuration shall not be varied to render such aspects out of substantial compliance with the Project Plans; and (h) The public benefits set forth in Section 2.6 shall not be materially reduced 2.4.4 City Consent to Modifrcations. The Planning Director shall not unreasonably withhold, condition or delay its approval of a request for such Minor Modification. The City may impose fees, exactions, conditions, and mitigation measures in connection with its approval of a Major Modification, subject to Section 4.2 below. Notwithstanding anything to the contrary herein or in the Existing Regulations, if the Planning Director approves a Minor Modification or if the City Council approves a Major Modification (and the corresponding amendment to this Agreement for such Major Modification), as the case may be, Agensys shall not be required to obtain any other 9 Discretionary Approvals for such modification, except for ARB approval, in the case of certain Major Modifications. 2,45 Ri¢ht to Develop. Subject to its obligations under Section 3.4 below, Agensys shall have the vested rights (the "Vested Rights") to (a) develop and construct the Project in accordance with the following: (i) the Project Plans (as the same may be modified from time to time in accordance with this Agreement) (ii) any Minor Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications which are approved pursuant to Section 2.4.3, and (iv) the requirements and obligations of Agensys related to the improvements which are specifically set forth in this Agreement, and (b) use and occupy the Project for the permitted uses set forth in Section 2.5. Except as expressly set forth in this Agreement, the City shall have no further discretion over the elements of the Project which have been delineated in the Project Plans (as the same may be modified from time to time in accordance with this Agreement). 2.5 Permitted Uses. The City approves the following permitted uses for the Project: (i) biotechnology research and development, including laboratories and associated work areas, and other related biotechnology uses, activities and processes; (ii) entertainrnent production; and (iii) creative arts. The City also approves uses that aze directly related to, supportive of, and ancillary to a permitted use ("ancillary uses"), including administrative offices, food service, dining and recreation for employees and occupants of the buildings, marketing, promotion, licensing, sales, financing, accounting, legal, and professional services; parking for primary and ancillary uses; and such other uses as maybe authorized by the City pursuant to Section 8.1 below; provided, however that such ancillary office uses shall not exceed 19,872 square feet of floor area. In addition, Agensys may hold up to four special events per year at the Property to which the public is invited without needing to obtain a use permit, administrative approval, or other Discretionary Approval; provided that Agensys shall not hold such special events at times that Agensys is providing shared parking for Bergamot Station pursuant to Section 2.6 (k) below, unless Agensys is holding a joint event. 2.6 Public Benefits. 2.6.1 Local and Regional Public Benefits. This Agreement provides assurances that the public benefits identified below in this Section 2.6 will be achieved and developed in accordance with the terms of this Agreement. The Project will provide local and regional public benefits to the City, including without limitation: (i) increasing tax revenues; (ii) providing new light manufacturing and research and development space in order to retain and attract good-paying, environmentally clean, biotechnology - orientedjobs; and (iii) reducing vehicle trips by implementing a TDM program that takes advantage of the forthcoming Expo Line and other alternative modes of transportation. 2.6.2 Additional Public Benefits. The Project shall provide the following unique public benefits: 10 (a) Pedestrian Path. The Project shall include the pedestrian path connecting the widened sidewalk at Stewart Street to the Bergamot Station site in substantial conformance with Exhibit "I" (the "Pedestrian Path"). The Pedestrian Path shall be approximately 570 feet long and vary in width from approximately 10 feet to 40 feet. Agensys shall make the Pedestrian Path accessible to the public from (i) the earlier of 6:00 a.m. or one half hour prior to the commencement of daily Expo Line operation at the planned station adjacent to Bergamot Station, until (ii) the later of 11:00 p.m. or one- halfhour after such daily Expo Line operations cease. Such public access shall be for walking, strolling, reading and other similar activity. In addition, bicyclists who walk their bikes may use the Pedestrian Path for access through the Property. Agensys may exclude any individuals from the Pedestrian Path who do not comply with such rules and regulations established in accordance with Section 2.6.3. Agensys shall maintain such space in good repair and free of accumulations of trash. In addition, Agensys shall develop a signage and wayfinding system to direct pedestrians to the pedestrian pathway, public cafe and on-site publicly accessible open space. Such signage shall be subject to the review and approval of the ARB in accordance with Article 6 below. (b) Pedestrian Cafe Onen to Public. Agensys shall open the Project pedestrian cafe. to the public at a minimum during the hours of 11:30 a.m. to 2:30 p.m. Monday through Friday; provided, however, that it is the parties' intention to limit public access to the pedestrian cafe to pedestrians only, and Agensys shall not be obligated to provide any public parking. The pedestrian cafe shall have approximately 40 indoor and 60 outdoor seats. Agensys shall cause the operator of the pedestrian cafe to use reasonable efforts to make residents and workers within walking distance aware of the pedestrian cafe, including but not limited to the hours that it is open to the public and its lack of parking for cafe patrons. (c) Public Open Space Adjacent to Stewart Street. From dawn to dusk daily, Agensys shall make the approximate 60 feet by 80 feet area adjacent to the outdoor seating area of the cafe as shown on Exhibit "J" open to the public for access and passive recreation. Such public use shall be subject to such rules and regulations that the Agensys may from time to time establish in accordance with Section 2.6.3. Agensys may exclude any individuals from such area who do not comply with such rules and regulations. Agensys shall maintain such space in good repair and free of accumulations of trash. (d) Widened Sidewalk along Stewart. Agensys shall widen and improve the sidewalk adjacent to the Project along Stewart Street in substantial conformance with the Exhibit "K" as follows: (1) at the pocket park and the central entry driveway, Agensys shall construct a 6- foot concrete sidewalk widening, for a total sidewalk width of 14 feet and length of 100 feet, which will match the existing sidewalk finish; (2) a planting area shall be added between the existing sidewalk and the new parking stalls at the north of the site; and (3) the new building at the southeast corner of the site shall be set back 8 feet from the existing edge of the sidewalk and such area shall be planted with a vegetated Swale to capture rainwater runoff. 11 (f) Traffic Demand Management Program. During operation of the Project, Agensys shall comply with the requirements of the Traffic Demand Management Program set forth in Exhibit "L". (g) Sculpture Garden. Agensys shall install on concrete pedestals up to ten sculptures adjacent to the Pedestrian Path in substantial conformance with Exhibit "M" (the "Sculpture Garden"). The initial set of sculptures (the "Initial Sculptures') shall be made primarily of stainless steel, shall be up to 10 feet in height, and may have an abstract biological theme. Agensys shall be responsible for the costs of transportation, installation, maintenance, security, and special lighting of the sculptures. Agensys shall replace such sculptures in accordance with Section 4.4 below. It is anticipated that the cost of the Sculpture Garden shall exceed the amounts otherwise required under SMMC Section 9.04.10.20 et seq., but shall be considered to be a public benefit only to the extent that it actually exceeds such amount. (h) Local Hiring Program. Agensys shall implement the local hiring program set forth in Exhibit "N". (i) Internship Program. Agensys shall offer at least two paid internships in biotechnology to students who attend Santa Monica College or are residents of Santa Monica. One internship shall be a fulltime position during the summer, and the other shall be a part time position during the school year. Agensys may select the students for the internships in its discretion. All interns must have sufficient course work, including laboratory experience, as Agensys determines in its discretion. (j) Student Tours. During each school year, Agensys shall send a letter to the Santa Monica-Malibu Unified School District inviting high school students (grades 9 to 12) for a total of four Yours of the Project to help the students better understand the biotechnology industry. Each tour shall be limited to 30 students at one time and shall include a lecture from an Agensys scientist. Students shall be accompanied at all times by teachers. (k) Shared Parkin. Upon receipt of at least 30 days' advance notice, Agensys shall make its parking area available at least 5 times per month between the hours of 7:00 p.m. to 10:00 p.m. Monday through Friday and 11:00 a.m. to 10:00 p.m. Saturday and Sunday for special events at Bergamot Station where additional parking maybe needed. Agensys may charge for such parking at then-prevailing market rates and may establish reasonable rules and regulations for the use of an access to and from the parking area. Agensys may exclude any individuals who do not comply with such rules and regulations. (1) Transit Infrastructure Contribution. On or before issuance of a building permit for the Project, Agensys shall make a $70,350 transit infrastructure contribution to the City to be specifically used in the Bergamot Station area with an emphasis on improving bicycle access and shall make a $20,000 contribution to the City for studies related to implementation of the LUCE Bicycle Network and improvements thereto. 12 (m) Continuine Community Outreach. At least twice in the first year following completion of the Project, and at least annually thereafter, Agensys shall hold a community meeting at the Project site with the residential area generally bounded by Exposition Boulevazd, Centinela Avenue, Pico Boulevard and Stewart Street, as well as the Stewart Street mobile home park. Agensys shall provide residents in such area with at least 15 days' prior written notice of such meeting by U.S. Mail. The purpose of the meetings will be to identify and address any issues that may arise from Project operations. Agensys shall designate a community liaison coordinator to respond to any requests for information or respond to any complaints. 2.6.3 Prohibited Activities on Pedestrian Path and Public Open SRace. Nothing herein shall give members of the public the right, without the prior written consent of Agensys, which consent may be conditioned or withheld by Agensys in Agensys' sole discretion, to engage in any other activity on the Pedestrian Path and the Public Open Space, including, without limitation (i) cooking, dispensing or preparing food, (ii) selling any item or engaging in the solicitation of money, signatures, or other goods or services, (iii) sleeping or staying overnight, (iv) engaging in political or other demonstrations, (v) using sound amplifying equipment, and (vi) engaging in any illegal, dangerous or other activity that Agensys reasonably deems to be inconsistent with other uses in the Project or with the use of the Pedestrian Path and the Public Open Space by other members of the public for the permitted purposes, such as excessive noise or boisterous activity, bicycle or skateboard riding (provided, however, bicyclists who walk their bikes shall be permitted to use the Pedestrian Path as set forth in Section 2.6.2(a)), skating or similaz activity, dressing inappropriately, being intoxicated, having offensive bodily hygiene, having shopping carts or other wheeled conveyances (except for wheelchairs and baby strollers/carriages), and Agensys shall retain the right to cause persons engaging in such conduct to be removed from the Project. Should any such persons refuse to leave the Project, they shall be deemed to be trespassing and be subject to arrest in accordance with applicable law. Agensys shall be entitled to establish and post rules and regulations for use of the Pedestrian Path and the Public Open Space consistent with the foregoing. Nothing in this Agreement or in the Project Plans shall be deemed to mean that the Pedestrian Path and the Public Open Space are public parks or are subject to legal requirements applicable to a public park or other public space. The Pedestrian Path and the Public Open Space shall remain the private property of Agensys with members of the public having only a license to occupy and use the Pedestrian Path and the Public Open Space in a manner consistent with Sections 2.6.2(a), 2.6.2(c), and 2.6.3. 2.7 Parking. Notwithstanding anything to the contrary contained in the Existing Regulations, the Project shall provide a minimum of 180 and a maximum of 205 parking spaces. For all surface parking spaces provided, not less than twenty-five percent (25%) of the parking spaces shall be standard size spaces. All parking spaces within the Project shall be secured and screened from offsite view, as shown on the Project Plans. The Project may provide unstriped spaces in the mechanical yard for loading and unloading of vehicles. 13 2.8 Maximum Floor Area. New construction shall not exceed an aggregate of 159,558 square feet of Floor Area. 2.9 Setbacks and Ste by acks. Agensys shall maintain the setbacks and stepbacks for the Project as set forth on the Project Plans. This Section 2.9 sets forth the exclusive setback and stepback requirements for the Project and supersedes all other setback and stepback requirements under the Existing Regulations, including Sections 9.04.10.02.040 and 9.04.08.35.050 of the Zoning Ordinance. 2.10 Signa¢e. The location, size, materials and color of any signage shall be reviewed by the ARB in accordance with the procedures set forth in Section 6.1. All signs on the Property shall be subject to the Santa Monica Sign Code in effect as of the Effective Date, a copy of which is attached to this Agreement as Exhibit "F". Directional signs for vehicles shall be located at approaches to driveways as required by the City's Department of Transportation. 2.11 Li_ghti~. All Project exterior lighting shall incorporate fixtures and light sources that focus light on-site to minimize light trespass. ARTICLE 3 CONSTRUCTION 3.1 Construction Mitigation Plan. During the construction phase of the Project, Agensys shall comply with the Construction Mitigation Plan attached as Exhibit "G" hereto. 3.2 Construction Hours. Agensys shall be permitted to perform construction between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to 5:00 p.m. Saturday; provided that (a) concrete pours may begin at 7:00 a.m. Monday through Friday and 8:00 a.m. Saturday and may continue until 10:00 p.m. Monday through Saturday, as needed, subject to the conditions and public notice requirements set forth in the Construction Mitigation Plan; and (b) interior construction work which does not generate noise of more than thirty (30) decibels beyond the Property line may also be performed between the hours of 7:00 a.m. to 8:00 a.m. and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. 3.3 Construction Traffic. Agensys shall prepare and implement, or cause the general contractor for the Project to prepare and implement, a construction traffic mitigation plan that shalt be subject to the review and approval of the City. 3.4 Completion of Construction. Agensys shall complete construction on or before December 31, 2013, as such date may be extended due to Excusable Delay. 14 ARTICLE 4 PROJECT FEES, EXACTIONS, MITIGATION MEASURES AND CONDITIONS 4.1 Permitted Fees Exactions, Mitigation Measures and Conditions. Except as expressly set forth in Section 4.2 (relating to modifications), 2.6 (relating to Public Benefits), and Section 5.2 (relating to Subsequent Code Changes) below, the City shall charge and impose only those fees, exactions, mitigation measures, conditions, and standards of construction set forth in this Agreement, including Exhibits "C", "D" and "G" attached hereto, and no others. The City may not increase any such fees, mitigation measures, conditions or exactions, and the City may not charge any fees, mitigation measures, conditions or exactions that are not listed on Exhibits "C", "D", and "G". The mitigation measures shall be implemented in compliance with the Mitigation Monitoring Program attached as Exhibit "O" hereto. If any of the mitigation measures or conditions set forth on Exhibit "D" is satisfied by others, Agensys shall be deemed to have satisfied such measures or conditions. All fees and exactions shall be calculated based on the net new Floor Area resulting from the Project, with a credit for the Floor Area of existing uses demolished to the extent that this is consistent with the standard practice of the City in imposing such fees and exactions. 4.2 Conditions on Modifications. The City may impose fees, exactions, mitigation measures and conditions in connection with its approval of Minor or Major Modifications, provided that all fees, exactions, mitigation measures and conditions shall be in accordance with applicable law. 4.3 Childcare Linkage Fee. Notwithstanding anything to the contrary in the Existing Regulations, only 19,872 square feet of the uses approved for the Project constitute "Office" use as defined in Section 9.72.030 of the SMMC. Accordingly, the childcare linkage fee pursuant to Section 9.72.020 et seq. of the SMMC shall only be assessed on such Office square footage. 4.4 Project Mitigation Measures. Notwithstanding anything to the contrary in the Existing Regulations, only 19,872 square feet of the uses approved for the Project constitute "Office". Accordingly, the Project Mitigation Measures pursuant to Sections 9.04.10.12.010 to 9.04.10.12.040 of the SMMC shall only be assessed on such Office square footage. 4.5 Cultural Arts Requirement. Agensys shall satisfy the Private Developer Cultural Arts Requirement requirements set forth in SMMC Section 9.04.10.20 et seq: by installing the Initial Sculptures in the Sculpture Garden at set forth in Section 2.6(g) and replacing them in accordance with this Section 4.4. It is Agensys' intention to replace the sculptures in the Sculpture Garden as often as annually, but no less frequently than every other year of the Term. All such sculptures shall be subject to review and approval by the Arts Commission or its designee. Agensys shall in good faith consider Santa Monica 15 artists for all future sculptures, but need not utilize a Santa Monica artist for the Initial Sculptures. Agensys shall also request that the artist give a lecture regarding the sculptures at any special event commemorating installation of the sculptures. If Agensys ever discontinues the sculpture program for any reason, it shall pay to the City the cultural arts development contribution required under SMMC Section 9.04.10.20.120, less a credit for the actual amounts that Agensys has spent on the program up to the time of discontinuance. 4.5 Release of Prior Covenant. On March 5, 2009, a party with interests in the Property executed that certain Agreement to Pay Cultural Arts Development Contribution (the "Art Covenant"), which Art Covenant was recorded against title to the Property on March 5, 2009 as Instrument Number 20090317604 in the Los Angeles County Recorder's official records. Agensys intends to satisfy it obligation pursuant to Section 9.04.10.20.120 et seq. of the SMMC by providing an on-site art. Accordingly, Agensys shall have no obligation, financial or otherwise, under or with respect to the Art Covenant. The City shall, within ninety (90) days after the Effective Date, execute a release and termination of the Art Covenant, in a form reasonably requested by Agensys's title insurance company. 4.6 Imylementation of Mitigation Measures and Conditions. Agensys shall be responsible for implementing the mitigation measures set forth on Section A of Exhibit "D" hereto and for adhering to the conditions of approval set forth on Section B of Exhibit "D" hereto. If Agensys proceeds with the construction of the Project, except as otherwise expressly limited herein, the obligations and requirements imposed by the Project description in Section 2.1 above, as well as the Mitigation Measures and Conditions of Approval attached as Exhibit "D", shall survive the Term of this Agreement and shall be binding upon Agensys, it successors and assigns, and shall continue in effect until release by the Planning Director. ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS 5.1 Development Standards for the Property Existing Regulations. The following development standards and restrictions set forth in this Section 5.1 govern the use and development of the Project and shall constitute the Existing Regulations, except as otherwise expressly required by this Agreement. 5.1.1 Defined Terms. The following terms shall have the meanings set forth below: (a) "Existing Regulations" collectively means all of the following which are in force and effect as of the Effective Date: (i) the General Plan (including, without limitation, the LUCE); (ii) the Zoning Ordinance (including the provisions of the LMSD zone) except as modified herein; (iii) any and all ordinances, rules, regulations, standards, specifications and official policies of the City governing, 16 regulating or affecting the demolition, grading, design, development, building, construction, occupancy or use of buildings and improvements or any exactions therefore, except as amended by this Agreement; and (iv) the development standards and procedures in Article 2 of this Agreement. (b) "Subsequent Code Changes" collectively means all of the following which are adopted or approved subsequent to the Effective Date, whether such adoption or approval is by the City Council, any department, division,. office, board, commission or other agency of the City, by the people of the City through charter amendment, referendum, initiative or other ballot measure, or by any other method or procedure: (i) any amendments, revisions, additions or deletions to the Existing Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications and official policies of the City governing or affecting the grading, design, development, construction, occupancy or use of buildings or improvements or any exactions therefor. "Subsequent Code Changes" includes, without limitation, any amendments, revisions or additions to the Existing Regulations imposing or requiring the payment of any fee, special assessment or tax. 5.1.2 Existing Regulations Govem the Proiect. Except as provided in Section 5.2, development of the buildings and improvements that will comprise the Project, including without limitation, the development standards for the demolition, grading, design, development, construction, occupancy or use of such buildings and improvements, and any exactions therefor, shall be governed by the Existing Regulations. Any provisions of the Existing Regulations inconsistent with the provisions of this Agreement, to the extent of such inconsistencies and not further, are hereby deemed modified to that extent necessary to effectuate the provisions of this Agreement. The Project shall be exempt from: (a) all Discretionary Approvals or review by the City or any agency or body thereof, other than the review. by the Architectural Review Board as specified in Section 6.1, and review of modifications to the Project as expressly set forth in Section 2.4.2 and 2.4.3; (b) the application of any subsequent local development or building moratoria, development or building rationing systems or other restrictions on development which would adversely affect the rate, timing, or phasing of construction of the Project; and (c) Subsequent Code Changes which are inconsistent with this Agreement. 5.2 Permitted Subsequent Code Changes. 5.2.1 Notwithstanding the terms of Section 5.1, this Agreement shall not prevent the City from applying to the Project the Subsequent Code Changes set forth below in this Section 5.2.1. (a) Processing fees and charges imposed by the City to cover the estimated actual costs to City or processing applications for development approvals including: (i) all application, permit, and processing fees incurred for the processing of this Agreement, any administrative approval of a Minor Modification, or any amendment of this Agreement in connection with a Major Modification; (ii) all building plan check and building inspection fees for work on the Property in effect at the time an application 17 for a grading permit or building permit is applied for; and (iii) the public works plan check fee and public works inspection fee for public improvements constructed and installed by Agensys for monitoring compliance with any development approvals, or for monitoring compliance with environrnental impact mitigation measures; provided that such fees and charges are uniformly imposed by the City at similar stages of project development on all similar applications and for all similar monitoring. (b) General or special taxes, including, but not limited to, property taxes, sales taxes, parcel taxes, transient occupancy taxes, business taxes, which may be applied to the Property or to businesses occupying the Property; provided that (i) the tax is of general applicability City-wide and does not burden the Property disproportionately to other similar developments within the City; and (ii) the tax is not a levy, assessment, fee or tax imposed for the purpose of funding public or private improvements on other property located within the Bergamot Transit Village District (as defined in the City's General Plan as of the Effective Date). (c) Procedural regulations relating to hearing bodies, petitions, applications, notices, documentation of findings, records, manner in which hearings are conducted, reports, recommendations, initiation of appeals, and any other matters of procedure; provided such regulations are uniformly imposed by the City on all matters, do not result in any unreasonable decision-making delays and do not affect the substantive findings by the City in approving this Agreement or as otherwise established in this Agreement. (d) Regulations governing construction standards and specifications which are of general application that establish standards for the construction and installation of structures and associated improvements, including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code; provided that such construction standards and specifications are applied on a City-wide basis and do not otherwise limit or impair the Project approvals granted in this Agreement. (e) Any City regulations to which Agensys has consented in writing. (f) Collection of such fees or exactions as are imposed and set by governmental entities not controlled by City but which are required to be collected. by City. (g) Regulations which do not impair the rights and approvals granted to Agensys under this Agreement. For the purposes of this Section 5.2.1(g), regulations. which impair Agensys's rights or approvals include; but are not limited to, regulations which (i) materially increase the cost of the Project (except as provided in Section 5.2.1(a) and Section 5.2.1(b) above) or (ii) which would materially delay development of the Project. 18 5.2.2 This Agreement shall not be construed to prevent the City from applying new rules, regulations and policies in those circumstances specified in Government Code Section 65866. 5.2.3 If state or federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations; provided that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City and Agensys shall use reasonable efforts to identify, assemble and copy three identical sets of the Existing Regulations to be retained by the City and Agensys, so that if it becomes necessary in the future to refer to any of the Existing Regulations, there will be a common set of the Existing Regulations available to all Parties. 5.4 Conflicting Enactments. Any Subsequent Code Change which would conflict in any way with or be more restrictive than the Existing Regulations shall not be applied by the City to any part of the Property. Agensys may, in its sole discretion, give the City written notice of its election to have any Subsequent Code Change applied to such portion of the Property as it may own, in which case such Subsequent Code Change shall be deemed to be an Existing Regulation insofar as that portion of the Property is concerned. If there is any conflict or inconsistency between the terms and conditions of this Agreement and the Existing Regulations, the terms and conditions of this Agreement shall control. 5.5 Timing of Development. The California Supreme Court held in Pardee Construction Co. v. Cit~f Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement. It is the intent of Agensys and the City to cure that deficiency by expressly acknowledging and providing that any Subsequent Code Change that purports to limit over time the rate or timing of development or to alter the sequencing of development phases (whether adopted or imposed by the City Council or through the initiative or referendum process) shall not apply to the Property or the Project and shall not prevail over this Agreement. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed by the City on the amount of total square feet of buildings or structures that can be built each year on the Property. 19 ARTICLE 6 ARCHITECTURAL REVIEW BOARD 6.1 Architectural Review Board Approval. Most elements of the design review process have been incorporated in the review process of this Agreement and have been considered and approved by the City Council pursuant to this Agreement. Therefore, only the Project's landscaping and signage shall be subject to review and approval or conditional approval by the ARB in accordance with design review procedures in effect under the Existing Regulations. Except for landscaping and signage, the ARB shall not review any features which are specifically approved by this Agreement or in the Project Plans. The ARB shall have no authority to disapprove or coriditionally approve or otherwise adversely affect any features or matters which have been specifically approved by this Agreement or in the Project Plans (including without limitation height, intensity, setbacks, building location and orientation and the structural design of the Project) unless expressly authorized to do so by this Agreement. Decisions of the ARB are appealable to the Planning Commission in accordance with the Existing Regulations. Notwithstanding the foregoing, prior to the issuance of a building permit for the Project, Agensys, subject to the approval of Planning Director or her designee, shall address the issue of solar access on the windows of the eastern and western facades of the Project's south building. ARTICLE 7 CITY TECHNICAL PERMITS; CITY OBLIGATIONS 7.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: 7.1.1 "Technical City Permits" means any Ministerial Approvals, consents or permits from the City or any office, board, commission, department, division or agency of the City, which are necessary for the actual construction of the Project or any portion thereof in accordance with the Project Plans, and this Agreement. Technical City Permits include, without limitation (a) building permits; (b) related mechanical, electrical; plumbing and other technical permits, and (c) demolition, excavation and grading permits, and (d) temporary or final certificates of occupancy. 7.1.2 "Technical Permit Applications" means any applications required to be filed by Agensys for any Technical City Permits. 7.2 Diligent Action by City. 7.2.1 Upon satisfaction of the conditions set forth in Section 73, the City shall accept the Technical Permit Applications filed by Agensys with the City, shall 20 commence to review and process each such Technical Permit Application in first priority to all other such pending applications then being reviewed by the City, and the City shall diligently proceed to process such Technical Permit Applications to completion. 7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the City shall diligently issue the Technical City Permits which are the subject of the Technical Permit Applications. Without limiting the foregoing, the City shall provide a dedicated planner and plan checker for the Project. 7.3 Conditions for Diligent Action by the City. 7.3.1 Acceptance and Processing of Technical Permit Applications. Agensys intends to construct the Project in phases. Accordingly, Technical Permit Applications may from time to time be submitted by Agensys with respect to one or more Buildings within the Project. The obligation of the City to accept and diligently process the Technical Permit Applications which are filed by Agensys, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions: (a) Agensys shall have completed and filed all Technical Permit Applications for a particular Building which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided that such procedures and policies are uniformly in force and effect throughout the City; (b) Agensys shall have paid all processing and permit fees established by the City in connection with the filing and processing of any Technical Permit Application which are in effect on the date when the Technical Permit Application is filed; provided that such fees are uniformly in force and effect throughout the City; and (c) If required for the particular Technical Permit Application, Agensys shall have obtained the approval of the ARB referred to in Section 6.1 above. 7.3.2 Issuance of a Technical Ci Permit. The obligation of the City to issue a Technical City Permit which is the subject of a Technical Permit Application filed by Agensys is subject to the satisfaction of the following conditions (and only such conditions and no others): (a) Agensys shall have complied with all of its obligations under this Agreement which are required to be performed prior to or concurrent with the issuance of the Technical City Permits for the proposed Building; (b) Agensys shall have received any permits or approvals from other governmental agencies which are required by law to be issued prior to or concurrent with the issuance of the Technical City Permits for the proposed Building; (c) The proposed Building conforms to the development standards for that Building established in this Agreement. If a proposed Building is not 21 in conformance with the development standards, Agensys shall have the right to seek any relief from such standards under the procedures then available in the City; and 7.3.3 The proposed Building conforms to the Administrative and Technical Construction Codes of the City (Article VIII, Chapter 1 of the Santa Monica Municipal Code) (the "Technical Codes") in effect on the date that the Technical Permit Application is filed. 7.3.4 New Technical Requirements. From time to time, the City's Technical Codes are amended to meet new technical requirements related to techniques of building and construction. If the sole means of achieving compliance for the Project with such revisions to the Technical Codes made after the Effective Date ("New Technical Requirements") would require an increase from the allowable Building Height established in this Agreement for the Project, then the Planning Director is hereby authorized to grant Agensys relief from the allowable Building Height without amending this Agreement. Any such approval shall be granted only after the Planning Director's receipt of a written request for such relief from Agensys. Agensys is required to supply the Planning Director with written documentation of the fact that compliance with the New Technical Requirements cannot be achieved by some other method. Any such relief shall only be granted to the extent necessary in the Planning Director's determination for Agensys to comply with the New Technical Requirements. Any such approval is deemed Ministerial and shall not require the approval of the ARB or the amendment of this Agreement. 7.4 Duration of Technical City Permits. The duration of Technical City Permits issued by the City, and any extensions of the time period during which such Technical City Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. The lapse or expiration of a Technical City Permit shall not preclude or impair Agensys from subsequently filing another Technical Permit Application for the same matter during the Construction Period of this Agreement, which shall be processed by the City in accordance with the provisions of this Article 7. 7.5 Certificates of Occupancy. Agensys contemplates that the Project may be constructed in phases and upon the completion of any one Building in the Project, tenants or Agensys or its affiliates may occupy such Building prior to the completion of any other Building. Therefore, the City shall not condition the issuance of a temporary or final certificate of occupancy for any Building within the Project upon the commencement or completion of any other building in the Project. Agensys may obtain temporary certificates of occupancy for any portion of space within a Building, even though the remainder of the Building may be incomplete; provided that Agensys complies with all applicable fire/life safety requirements. 7.6 Exno Line. The Expo Line Construction Authority is proceeding with the design and construction the Phase 2 extension of the Expo Line. The approved location of Phase 2 of the Expo Line is attached to this Agreement as Exhibit "H" (the "Expo Line Map"). As shown on the Expo Line Map, a portion of Phase 2 of the Expo Line 22 will be located near the Property along Olympic Boulevard. The Parties acknowledge that the Expo Line project will be constructed as a so-called "transit parkway" and will include bicycle paths and.pedestrian paths, as well as trees and landscaping such transit parkway. Agensys intends to seek the agreement and approval of the Board of Directors of the Expo Line Construction Authority for the following matters: (a) The location of Phase 2 of the Expo Line shall be located in substantially the same alignment as depicted on the Expo Line Map; (b) The construction of Phase 2 of the Expo Line and the related transit parkway shall not encroach onto the Property; (c) The design and construction of Phase 2 of the Expo Line and the related transit parkway shall be done in a manner that minimizes vibration and noise that affect the Property; and (d) The design and construction of Phase 2 of the Expo Line and the related transit parkway shall be done in a manner such that the operation and use of the Expo Line does not have a material adverse effect on Agensys's planned use or development of the Property. The City will be supportive of Agensys in its endeavors to obtain such agreement and approvals, to the extent consistent with the City's support of the extension of the Expo Line. ARTICLE 8 AMENDMENT AND MODIFICATION 8.1 Amendment and Modification of Development Agreement. Subject to the notice and hearing requirement of the applicable Development Agreement Statutes, this Agreement may be modified or amended from time to time only with the written consent of Agensys and the City or their successors and assigns in accordance with the provisions of the SMMC and Section 65868 of the Government Code. ARTICLE 9 TERM 9.1 Effective Date. This Agreement shall be dated, and the obligations of the Parties hereunder shall be effective as of the date upon which the ordinance approving this Agreement becomes effective (the "Effective Date"). The Parties shall execute this Agreement within ten (10) working days of the Effective Date. 9.2 Term. 9.2.1 The term of this Agreement shall commence on the Effective Date and shall continue through the term of the Ground Lease for the Property between 23 Agensys and the City, as such term may be extended (the "Term"), unless this Agreement is otherwise terminated pursuant to Section 11.4, after the satisfaction of all applicable public hearing and related procedural requirements. 9.2.2 Upon termination of this Agreement, the Parties hereto shall execute an appropriate certificate of termination in recordable form (a "Termination Certificate"), which shall be recorded in the official records of Los Angeles County. ARTICLE 10 PERIODIC REVIEW OF COMPLIANCE 10.1 City Review. The City shall review compliance with this Development Agreement once each year, on or before each anniversary of the Effective Date (each, a "Periodic Review"), in accordance with this Article 10 in order to determine whether or not Agensys is out-of-compliance with any specific term or provision of this Agreement. At commencement of each Periodic Review, the City shall notify Agensys in writing that said Periodic Review is or has been commenced. 10.2 Evidence of Good Faith Compliance. During each Periodic Review, the City shall deliver written notice to Agensys requesting Agensys to demonstrate that it has been in good faith compliance with this Agreement during the twelve (12) month period prior to the anniversary of the Effective Date. For purposes of this Agreement, the phrase "good faith compliance" shall mean the following: (a) compliance by Agensys with the requirements of the Existing Regulations, except as otherwise modified by this Agreement; (b) compliance by Agensys with the terms and conditions of this Agreement, subject to the existence of any specified Excusable Delays (as defined in Section 15.8 below) which prevented or delayed the timely performance by Agensys of any of its obligations under this Agreement. 10.3 Information to be Provided to Agensys. The City shall deliver to Agensys a copy of all staff reports prepared in connection with a Periodic Review, written comments from the public and, to the extent practical, all related exhibits concerning such Periodic Review. If the City delivers to Agensys a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver to Agensys a copy of all staff reports prepared in connection with such Notice of Breach, all written comments from the public and all related exhibits concerning such Notice of Breach. 10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City reasonably concludes on the basis of substantial evidence that Agensys has not demonstrated that it is in good faith compliance with this Agreement, then the City may issue and deliver to Agensys a written Notice of Breach pursuant to Section 11.1 below, and Agensys shall have the opportunity to cure the default identified in the Notice of Breach during the cure periods and in the manner provided by Section 11.2 and Section 11.3, as applicable. 24 10.5 Failure of Periodic Review. The City's failure to review at least annually compliance by Agensys with the terms and conditions of this Agreement shall not constitute or be asserted by any Party as a breach by any other Party of this Agreement. 10.6 Termination of Development Agreement. If Agensys fails to timely cure any item(s) ofnon-compliance set forth in a Notice of Default, then the City shall have the right but not the obligation to initiate proceedings for the purpose of terminating this Agreement pursuant to Section 11.4 below. 10.7 City Cost Recovery. Following completion of each Periodic Review, Agensys shall reimburse the City for its actual and reasonable costs incurred in connection with such review. ARTICLE 11 DEFAULT 1 I.1 Notice and Cure. 11.1.1 Breach. If either Party fails to substantially to perform any term, covenant or condition of this Agreement which is required on its part to be performed (a "Breach"), the non-defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non-defaulting Party has first sent a written notice of Breach (a "Notice of Breach"), in the manner required by Section 15.1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by Agensys, the City shall also deliver a copy of the Notice of Breach to any Secured Lender of Agensys which has delivered a Request for Notice to the City in accordance with Section 12.1.3. 11.1.2 Monetary Breach. In the case of a monetary Breach by Agensys, Agensys shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by Agensys of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Agensys shall deliver to the City reasonable evidence of the Excusable Delay. 11.1.3 Non-Monetary Breach. In the case of anon-monetary Breach by either Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for anon-monetary Breach shall be extended as is reasonably necessary to remedy such Breach; provided that the alleged defaulting Party commences such cure promptly after receiving the Notice of Breach and continuously and diligently pursues such remedy at all times until such Breach is cured. 25 11.1.4 Excusable Delay. Notwithstanding anything to the contrary contained in this Agreement, the City's exercise of any of its rights or remedies under this Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8 below. 11.2 Remedies for Monetary Default. If there is a Breach by Agensys in the performance of any of its monetary obligations under this Agreement which remains uncured (a) thirty. (30) business days after receipt by Agensys of a Notice of Breach from the City and (b) after expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of Agensys has delivered a Request for Notice to the City in accordance with Section 12.1), then an "Event of Monetary Default" shall have occurred by Agensys and the City shall have available any right or remedy provided in this Agreement, at law or in equity. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy. In the event of a monetary default by Agensys, the City shall not be required to comply with the procedures set forth in Section 11.4; provided, however, that Agensys may pay any disputed amounts under protest. 11.3 Remedies for Non-Monetary Default. 11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from the other Party regarding anon-monetary Breach, and the non-monetary Breach remains uncured: (a) after expiration of all applicable notice and cure periods, and (b) in the case of a Breach by Agensys, after the expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of Agensys has delivered a Request for Notice to the City in accordance with Section 12.1), then an "Event of Non-Monetary Default" shall have occurred and the non-defaulting Party shall have available any right or remedy provided in this Agreement, or provided at law or in equity except as prohibited by this Agreement. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver. or election in respect to any other available remedy. 11.3.2 ~ecific Performance. Due to the size, nature and scope of the Project and due to the fact that it will not be practical or possible to restore the Property to its condition as of the date of this Agreement once implementation of this Agreement has begun, Agensys may be foreclosed from other choices it may have had for the use of the Property or portions of the Property. Agensys has invested significant time and resources, performed extensive planning and processing of the Project, and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. Consequently, the City and Agensys acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance is an appropriate remedy for the enforcement of this Agreement. Therefore, unless otherwise expressly provided herein, the remedy of specific performance shall be available to Agensys and the City under this Agreement if the other Party causes an Event ofNon-Monetary Default to occur. 26 11.33 Writ of Mandate. The City and Agensys hereby stipulate that Agensys shall be entitled to obtain relief in the form of a writ of mandate in accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy any Event ofNon-Monetary Default by the City of its obligations and duties under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary standard or the standard of review applicable to any action of, or approval by, the City pursuant to this Agreement or with respect to the Project. 11.3.4 No Dama eg s Against City. Agensys acknowledges that the City would not have entered into this Agreement if the City were to be liable in damages under or with respect to this Agreement or the application thereof. Consequently, subject to Section 11.3.5 below, and except for the payment of attorneys' fees in accordance with Section 15.11 and court costs, the City shall not be liable in damages to Agensys or to any "Property Transferee". Agensys hereby covenants on behalf of itself and its successors in interest not to sue the City for or make any claim against the City for any of the following: (a) damages for any Event ofNon-Monetary Default under this Agreement, or which arises out of this Agreement; (b) damages for the taking, impairment or restriction of any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or (c) damages arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 11.3.5 Damages against the City in Certain Circumstances. The limitations on damages set forth in Section 11.3.4 shall not apply to causes of action or claims by Agensys under this Agreement if the City has unreasonably or maliciously disregarded the terms of this Agreement. In addition the limitations on damages set forth in Section 11.3.4 shall not limit the liability of the City, if any, for damages which: (a) are not for an Event ofNon-Monetary Default or which do not arise under this Agreement; (b) are not with respect to any right or interest conveyed or provided hereunder or pursuant hereto; or (c) do not arise out of or are not connected with any dispute, controversy or issue regarding the application, interpretation, or effect of the provisions of this Agreement. 11.3.6 No Damages Against Agensys. The City acknowledges that Agensys would not have entered into this Agreement if Agensys were to be liable in damages under or with respect to any Event ofNon-Monetary Default by Agensys under this Agreement. Consequently, subject to Section 11.3.7 below, and except for the payment of attorneys' fees in accordance with Section 15.11 and court costs, Agensys shall not be liable in damages to the City for any Event ofNon-Monetary Default by Agensys under this Agreement. The City hereby covenants not to sue Agensys for or make any claim against Agensys for any of the following: 27 (a) damages for any Event ofNon-Monetary Default under this Agreement, or which arises out of this Agreement; or (b) damages arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 11.3.7 Damages a¢ainst Agensys in Certain Circumstances. The limitations on damages set forth in Section 11.3.6 shall not limit the liability of Agensys, if any, for damages which: (a) are not for an Event ofNon-Monetary Default of this Agreement or which do not arise under this Agreement; (b) are not with respect to any right or interest conveyed or provided hereunder or pursuant hereto; (c) do not arise out of or are not connected with any dispute, controversy or issue regarding the application, interpretation, or effect of the provisions of this Agreement. Nothing herein shall be deemed to limit the City's ability to impose fines or penalties pursuant to SMMC Chapters 1.09 and 1.10. 11.3.8 No Other Limitations. Except as expressly set forth in this Section 11.3, the provisions of this Section 11.3 shall not otherwise limit any other rights, remedies, or causes of action that either the City or Agensys may have at law or equity after the occurrence of any Event ofNon-Monetary Default. 11.4 Modification or Termination of Agreement by City. 11.4.1 Default b~gens~. In the event that (1) the City finds and determines pursuant to Section 10.1 above, on the basis of substantial evidence, that Agensys has not been in good faith compliance with the terms and conditions of this Agreement, or (2) the City finds and determines that there has been anon-monetary Default by Agensys of its obligations under this Agreement which have not been cured during the application notice cure periods under Section 11.1(a) above and Section 11.1(b) above, the City may commence proceedings to terminate or modify this Agreement pursuant to this Section. 11.4.2 Procedure for Modification or Termination. The procedures for modification or termination of this Agreement by the City for the grounds set forth in Section 11.4.1 are as follows: (a) The City shall provide a written notice to Agensvs (and to any Secured Lender of Agensys which has delivered a Request for Notice to the City in accordance of Section 12.1) of its intention to modify or terminate this Agreement unless Agensys (or the Secured Lender) cures or corrects the acts or omissions that constitute the basis of such determinations by the City (a "Hearing Notice"). The Hearing Notice shall be delivered by the City to Agensys in accordance with Section 15.1 and shall contain the time and place of a public hearing to be held by the City Council on the determination of the City to proceed with modification or termination of this Agreement. The public hearing shall not be held earlier than: (i) thirty-one (31) days after delivery of the Hearing Notice to Agensvs or (ii) if a Secured Lender has delivered a Request for 28 Notice in accordance with Section 12.1, the day following the expiration of the "Secured Lender Cure Period" (as defined in Section 12.1). (b) If, following the conclusion of the public hearing, the City Council: (i) determines that either an Event of Monetary Default has occurred or an Event ofNon-Monetary Default has occurred, as applicable and (ii) further determines that Agensys (or the Secured Lender, if applicable) has not cured (within the applicable cure periods) the acts or omissions that constitute the basis of the Event ofNon-Monetary Default or if those acts or omissions could not be reasonably remedied prior to the public hearing that Agensys (or the Secured Lender) 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 proceeding therewith to completion, then upon making such conclusions, the City Council may modify or terminate this Agreement.. The City cannot unilaterally modify the provisions of this Agreement pursuant to this Section 11.4. Any such modification requires the written consent of Agensys. In the event that Agensys does not consent to a modification submitted by the City pursuant to this Section 11.4, the City Council may elect to terminate this Agreement. 11.5 Cessation of Rights and Obligations. If this Agreement is terminated by the City pursuant to and in accordance with Section 11.4, the rights; duties and obligations of the Parties under this Agreement shall cease as of the date of such termination, except only for those rights and obligations that expressly survive the termination of this Agreement. In such event, any and all benefits, including money received by the City prior to the date of termination, shall be retained by the City. 11.6 Completion of Improvements. Notwithstanding the provisions of Sections 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Agensys has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit issued by the City, then Agensys shall have acquired a vested right to complete construction of the Building that is the subject of the building permit in accordance with the terms of the building permit and occupy or use such Building upon completion for the use(s) permitted for that Building as provided in this Agreement. Any building completed or occupied pursuant to this Section 11.6 shall be considered legal non-conforming subject to all City ordinances standards and policies as they then exist governing legal non-conforming buildings and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district. ARTICLE 12 MORTGAGEES 12.1 Encumbrances on the Property. This Agreement shall not prevent or limit Agensys (in its sole discretion), from encumbering the Property (in any manner) or any portion thereof or any improvement thereon by any mortgage, deed of trust, assignment 29 of rents or other security device securing financing with respect to the Property (a "Mortgage"). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a "Secured Lender") on the Property shall be entitled to the rights and privileges set forth in this Article 12. Any Secured Lender may require from the City certain interpretations of this Agreement. The City shall from time to time, upon request made by Agensys, meet with Agensys and representatives of each of its Secured Lenders to negotiate in good faith any Secured Lender's request for interpretation of any part of this Agreement. The City will not unreasonably withhold, condition or delay the delivery to a Secured Lender of the City's written response to any such requested interpretation; provided such interpretation is consistent with the intent and purposes of this Agreement. 12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section 12.1.2 below, neither entering into this Agreement nor a Breach of this Agreement, nor any Event of Monetary Default nor any Event ofNon-Monetary Default shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. 12.1.2 Priority of Agreement. This Agreement shall be superior and senior to the lien of any Mortgage recorded on or after the Effective Date. Any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Secured Lender or its successor in interest (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise) shall be subject to all of the terms and conditions of this Agreement. 12.1.3 Right of Secured Lender to Cure Default. (a) A Secured Lender may give notice to the City, specifying the name and address of such Secured Lender and attaching thereto a true and complete copy of the Mortgage held by such Secured Lender (a "Request for Notice"). If the Request for Notice shall be given, at the same time the City sends such notice to Agensys, the City shall send to such Secured Lender a copy of each Notice of Breach and Hearing Notice from the City to Agensys which relates to, affects, or potentially many adversely affect, the interest of Agensys in the Property or portion thereof which serves as security for the Mortgage. The copy of the Notice of Breach or Heazing Notice sent to the Secured Lender pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the City. The period within which a Secured Lender may cure a particular Event of Monetary Default or Event of Non-Monetary Default shall not commence until the City has sent to the Secured Lender such copy of a Notice of Breach or Heazing Notice. (b) After a Secured Lender has received a copy of such Notice of Breach or Hearing Notice, such Secured Lender shall thereafter have a period of time (in addition to any notice and/or cure period afforded to Agensys under this Agreement) equal to: (a) ten (10) days in the case of any Event of Monetary Default and (b) thirty (30) days in the case of any Event ofNon-Monetary Default, during which period the Secured Lender may provide a remedy or cure of the applicable Event of Monetary Default or may provide a remedy or cure of the applicable Event ofNon-Monetary 30 Default; provided that if the cure of the EventofNnn-Monetary Default cannot reasonably be completed within thirty days, Secured Lender may within such 30-day period commence to cure the same and thereafter diligently prosecute such cure to completion (a "Secured Lender's Cure Period"). If Agensys has caused an Event of Monetary Default or an Event ofNon-Monetary Default, then each Secured Lender shall have the right to remedy such Event of Monetary Default or an Event ofNon-Monetary Default, as applicable, or to cause the same to be remedied prior to the conclusion of the Secured Lender's Cure Period and otherwise as herein provided. The City shall accept performance by any Secured Lender of any covenant, condition, or agreement on Agensys's part to be performed hereunder with the same force and effect as though performed by Agensys. (c) The period of time given to the Secured Lender to cure any Event of Monetary Default or an Event ofNon-Monetary Default by Agensys which reasonably requires that said Secured Lender be in possession of the Property to do so, shall be deemed extended to include the period of time reasonably required by said Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver or otherwise) promptly and with due diligence; provided that during such period all other obligations of Agensys under this Agreement, including, without limitation, payment of all amounts due, are being duly and promptly performed. 12.1.4 Secured Lender Not Obligated Under this Agreement. (a) No Secured Lender shall have any obligation or duty under this Agreement to perform the obligations of Agensys's or the affirmative covenants of Agensys's hereunder or to guarantee such performance unless and until such time as a Secured Lender takes possession or becomes the owner of the estate covered by its Mortgage, and then only for obligations arising or accruing during or with respect to the time a Secured Lender is in possession or is the owner under such estate. (b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City's authority to terminate this Agreement, as against any Secured Lender as well as against Agensys if any curable Event of Monetary Default or an Event ofNon-Monetary Default is not completely cured within the Secured Lender's Cure Period. ARTICLE 13 TRANSFERS AND ASSIGNMENTS 13.1 Transfers and Assiamnents. 13.1.1 Not Severable from Ownership Interest in Property. This Agreement shall not be severable from Agensys's interest in the Property and any transfer of the Property or any portion thereof shall automatically operate to transfer the 31 benefits and burdens of this Agreement with respect to the transferred Property or transferred portions, as applicable. 13.2 Transfer Rights. Agensys may sell, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Property in accordance with the terms of the Ground Lease. 13.3 Release Upon Transfer. Upon the sale, transfer, exchange or hypothecation of the rights and interests of Agensys to the Property, Agensys shall be released from its obligations under this Agreement to the extent of such sale, transfer or exchange with respect to the Property if : (a) Agensys has provided written notice of such transfer to City; and (b) the Property transferee executes and delivers to City a written agreement in which the Property transferee expressly and unconditionally assumes all of the obligations of Agensys under this Agreement with respect to the Property (an "Assumption Agreement"). Upon such transfer of the Property and the express assumption of Agensys's obligations under this Agreement by the transferee, the City agrees to look solely to the transferee for compliance with the provisions of this Agreement. Any such transferee shall be entitled to the benefits of this Agreement as "Developer" hereunder and shall be subject to the obligations of this Agreement. Failure to deliver a written Assumption Agreement hereunder shall not affect the transfer of the benefits and burdens as provided in Section 13.1, provided, however, that the transferor shall not be released from its obligations hereunder unless and until the executed Assumption Agreement is delivered to the City. ARTICLE 14 INDEMNITY TO CITY 14.1 Indemnity. Agensys agrees to and shall defend, indemnify and hold harmless the City, its City Council, boards and commissions, officers, agents, employees, volunteers and other representatives (collectively referred to as "City Indemnified Parties") from and against any and all loss, liability, damages, cost, expense, claims, demands, suits, attorney's fees and judgments (collectively referred to as "Damages"), including but not limited to claims for damage for personal injury (including death) and claims for property damage arising directly or indirectly from the following: (1) for any act or omission of Agensys or those of its officers, board members, agents, employees, volunteers, contractors, subcontractors or other persons acting on its behalf (collectively referred to as the "Agensys Parties") which occurs during the Term and relates to this Agreement; (2) for any act or omission related to the operations of Agensys Parties, including but not limited to the maintenance and operation of areas on the Property accessible to the public. Agensys's obligation to defend, indemnify and hold harmless applies to all actions and omissions of Agensys as described above caused or alleged to have been caused in connection with the Project or Agreement, except to the extent any Damages are caused by the active negligence or willful misconduct of any City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to have 32 been suffered by the City Indemnified Parties regardless of whether or not the City prepared, supplied or approved plans or specifications or both for the Project. 14.2 City's Right to Defense. The City shall have the right to reasonably approve legal counsel retained by Agensys to defend any claim, action or proceeding which Agensys is obligated to defend pursuant to Section 14.1, which approval shall not be unreasonably withheld, conditioned or delayed. If any conflict of interest results during the mutual representation of the City and Agensys in defense of any such action, or if the City is reasonably dissatisfied with legal counsel retained by Agensys, the City shall have the right (a) at Agensys's costs and expense, to have the City Attorney undertake and continue the City's defense, or (b) with Agensys's approval, which shall not be reasonably withheld or delayed, to select separate outside legal counsel to undertake and continue the City's defense. ARTICLE 15 GENERAL PROVISIONS 15.1 Notices. Formal notices, demands and communications between the Parties shall be deemed sufficiently given if delivered to the principal offices of the City or Agensys, as applicable, by (i) personal service, or (ii) express mail, Federal Express, or other similar overnight mail or courier service, regularly providing proof of delivery, or (iii) registered or certified mail, postage prepaid, return receipt requested, or (iv) facsimile (provided that any notice delivered by facsimile is followed by a separate notice sent within twenty-four (24) hours after the transmission by facsimile delivered in one of the other manners specified above). Such notice shall be addressed as follows: To Cit City of Santa Monica 1685 Main Street, Room 204 Santa Monica, CA 90401 Attn: City Manager Fax: (310)917-6640 With a Copy to: City of Santa Monica 1685 Main Street, Room 212 Santa Monica, CA 90401 Attn: Planning and Community Development Director Fax: (310)458-3380 33 To Agens~: Agensys, Inc. 2225 Colorado Avenue Santa Monica, CA 90404 Attn: Paul Kanan -Fax: (310) 382-2880 With a Copes: Agensys, Inc. 2225 Colorado Santa Monica, CA 90404 Attn: Shane M. Popp, Esq. Fax: 310-382-2888 With a Copy to: Armbruster Goldsmith & Delvac LLP 11611 San Vicente Blvd., Suite 900 Los Angeles, California 90024 Attn: Dale Goldsmith, Esq. Fax: (310) 209-8801 Notice given in any other manner shall be effective when received by the addressee. Any Party may change the addresses for delivery of notices to such Party by delivering notice to the other Party in accordance with this provision. 15.2 Entire Agreement; Conflicts. This Agreement represents the entire agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Existing Regulations, then the provisions of this Agreement shall prevail. Should any of the Conditions of Approval set forth in Section B of Exhibit "D" attached hereto conflict with any of the Mitigation Measures set forth in Section A of Exhibit "D" attached hereto, the more stringent or exacting requirement shall control. 15.3 Bindin Eg ffect. The Parties intend that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property during the Term for the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of all successors-in-interest to the Parties hereto. Every Parry who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Project during the Term is and shall be conclusively deemed to have consented and agreed to every provision contained herein, to the extent relevant to said right, title or 34 interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project. 15.4 Agreement Not for Benefit of Third Parties: This Agreement is made and entered into for the sole protection and benefit of Agensys and the City and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 15.5 No Partnership or Joint Venture. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the City and Agensys or to render either Party liable in any manner for the debts or obligations of the other. 15.6 Estoppel Certificates. Either Parry may, at anytime, and from time to time, deliver written notice to the other Party requesting such Party to certify in writing (each, an "Estoppel Certificate"): (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 the responding Party, the requesting Party is in Breach or claimed Breach in the performance of its obligations under this Agreement, and, if so, describing the nature and amount of any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the responding Party, any event has occurred or failed to occur which, with the passage of time or the giving of notice, or both, would constitute an Event of Monetary Default or an Event ofNon-Monetary Default and, if so, specifying each such event. A Party receiving a request for an Estoppel Certificate shall execute and return such Certificate within thirty (30) days following the receipt of the request therefor. If the party receiving the request hereunder does not execute and return the certificate in such 30-day period and if circumstances are such that the Party requesting the notice requires such notice as a matter of reasonable business necessity, the Party requesting the notice may seek a second request which conspicuously states "FAILURE TO EXECUTE THE REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE DEVELOPMENT AGREEMENT" and which sets forth the business necessity for a timely response to the estoppel request. If the Party receiving the second request fails to execute the Estoppel Certificate within such 15-day period, it shall be conclusively deemed that the Agreement is in full force and effect and has not been amended or modified orally or in writing, and that there are no uncured defaults under this Agreement or any events which, with passage of time of giving of notice, of both, would constitute a default under the Agreement. The City Manager shall have the right to execute any Estoppel Certificate requested by Agensys under this Agreement. The City acknowledges that an Estoppel Certificate may be relied upon by any Property Transferee, Secured Lender or other party. 15.7 Time. Time is of the essence for each provision of this Agreement of which time is an element. 35 15.8 Excusable Delays. 15.8.1 In addition to any specific provisions of this Agreement, non- performance by Agensys of its obligations under this Agreement shall be excused when it has been prevented or delayed in such performance by reason of any act, event or condition beyond the reasonable control of Agensys (collectively, "Excusable Delays") for any of the following reasons: (a) War, insurrection, walk-outs, riots, acts of terrorism, civil unrest, floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused performances; (b) Governmental restrictions or moratoria imposed by the City or by other governmental entities or the enactment of conflicting State or Federal laws or regulations; (c) The imposition of restrictions or moratoria by judicial decisions or by litigation, contesting the validity, or seeking the enforcement or clarification of, this Agreement whether instituted by Agensys, the City or any other person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or any permit oYapproval Agensys deems necessary or desirable for the implementation of the Project; (d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement; (e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes; and (f) Failure of the City to timely perform its obligations hereunder, including its obligations under Section 7.2 above 15.8.2 Under no circumstances shall the inability of Agensys to secure financing be an Excusable Delay to the obligations of Agensys. 15.8.3 In order for an extension of time to be granted for any Excusable Delay, Agensys must deliver to the City written notice of the commencement of the Excusable Delay within thirty (30) days after the date on which Agensys becomes aware of the existence of the Excusable. Delay. The extension of time for an Excusable Delay shall be for the actual period of the delay. 15.9 Governing Law. This Agreement shall be governed exclusively by the provisions hereof and by the laws of the State of California. 15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any court action or other proceeding commenced that includes any challenge to the validity, 36 enforceability or any term or provision of this Agreement, then Agensys shall indemnify, hold harmless, pay all costs actually incurred, and provide defense in said action or proceeding, with counsel reasonably satisfactory to both the City and Agensys. The City shall cooperate with Agensys in any such defense as Agensys may reasonably request. 15.11 Attorneys' Fees. If any Party commences any action for the interpretation,. enforcement, termination, cancellation or rescission of this Agreement or for specific performance for the Breach of this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post-judgment proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid whether or not such action is prosecuted to judgment. In any case where this Agreement provides that the City or Agensys is entitled to recover attorneys' fees from the other, the Party so entitled to recover shall be entitled to 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. The fair market value of the legal services for public attorneys shall be determined by utilizing the prevailing billing rates of comparable private attorneys. 15.12 Recordation. Promptly following Agensys's acquisition of the Ground Lease, the Parties shall cause this Agreement to be recorded against title to the Property in the Official Records of the County of Los Angeles. The cost, if any, of recording this Agreement shall be borne by Agensys. 15.13 No Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and referring expressly to this Section 15.13. No delay or omission by either Party in exercising any right or power accruing upon non-compliance or failure to perform by the other Party under any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof, except as expressly provided herein. No waiver by either Party of any of the covenants or conditions to be performed by the other Party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof of this Agreement. 15.14 Construction of this Agreement. The Parties agree that each Party and its legal 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. 15.15 Other Governmental Approvals. Agensys may apply for such other permits and approvals as may be required for development of the Project in accordance with this Agreement from other governmental or quasi-governmental agencies having jurisdiction over the Property. The City shall reasonably cooperate with Agensys in its endeavors to obtain such permits and approvals. 15.15.1 Further Assurances• Covenant to Sign Documents. Each Party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if 37 required, any and all documents and writings, which maybe necessary or proper to achieve the purposes and objectives of this Agreement. 15.15.2 Processin¢. Upon satisfactory completion by Agensys of all required preliminary actions and payments of appropriate processing fees, if any, the City shall, subject to all legal requirements, promptly initiate, diligently process, and complete at the earliest possible time all required steps, and expeditiously act upon any approvals and permits necessary for the development by Agensys of the Project in accordance with this Agreement, including, but not limited to, the following: (a) the processing of applications for and issuing of all Discretionary Approvals requiring the exercise of judgment and deliberation by City; (b) the holding of any required public hearings; and (c) the processing of applications for and issuing of all City Technical Permits requiring the determination of conformance with the Existing Regulations. 15.15.3 No Revocation. The City shall not revoke or subsequently disapprove any. approval or future approval for the development of the Project or the Property once issued by the City; provided that the development of the Project or the Property is in accordance with such approval. Any disapproval by the City shall state in writing the reasons for such disapproval and the suggested actions to be taken in order for approval to be granted. 15.15.4 Processine Durin¢ Third Pa Liti ag tion. If any third party lawsuit is filed against the City or Agensys relating to this Agreement or to other development issues affecting the Property, the City shall not delay or stop the development, processing or construction of the Property, or issuance of City Technical Permits, unless the third party obtains a court order preventing the activity. The City shall not stipulate to or fail to oppose the issuance of any such order. 15.15.5 State, Federal or Case Law. Where any state, federal or case law allows the City to exercise any discretion or take any act with respect to that law, the City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. 15.16 Venue. Any legal action or proceeding among the Parties arising out of this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California. 38 15.17 Exhibits. The following exhibits which are part of this Agreement are attached hereto and each of which is incorporated herein by this reference as though set forth in full: Exhibit "A" Legal Description of the Property Exhibit "B" Project Plans Exhibit "C" Permitted Fees and Exactions Exhibit "D" Mitigation Measures and Conditions Exhibit "E" Zoning Ordinance Exhibit "F" Santa Monica Sign Code Exhibit "G" Construction Mitigation Plan Exhibit "H" Expo Line Map Exhibit "I" Pedestrian Path Exhibit "J" Public Open Space Exhibit "K" Widened Sidewalk Exhibit "L" TDM Program Exhibit "M" Sculpture Garden Exhibit "N" Local Hiring Program If there are any inconsistencies between the Exhibits and the text of this Agreement, the text of this Agreement shall prevail. 15.18 Certificate of Performance. Upon the completion of the Project, or any phase thereof, or upon performance of this Agreement or its earlier revocation and termination, the City shall provide Agensys, upon Agensys's request, with a statement ("Certificate of Performance"} evidencing said completion, termination or revocation and the release of Agensys from further obligations hereunder, except for any further obligations which survive such completion, termination or revocation. The Certificate of Performance shall be signed by the appropriate agents of Agensys and the City and shall be recorded against title to the Property in the official records of Los Angeles County, California. Such Certificate of Performance is not a notice of completion as referred to in California Civil Code Section 3093. 15.19 Interests of Agensys. Agensys represents to the City that, as of the Effective Date, it has entered into a purchase and sale agreement which gives Agensys the right to purchase the Ground Lease, subject to encumbrances, easements, covenants, conditions, restrictions, and other matters of record. 15.20 O~erating_Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and Agensys. During the Term of this 39 Agreement, clarifications to this Agreement and the Existing Regulations may be appropriate with respect to the details of performance of the City and Agensys. If and when, from time to time, during the term of this Agreement, the City and Agensys agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by the City and Agensys, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with futare written approval by the City and Agensys. Operating memoranda are not intended to and cannot constitute an amendment to this Agreement but mere ministerial clarifications, therefore public notices and hearings shall not be required for any operating memorandum. The City Attorney shall be authorized, upon consultation with and approval of Agensys, to determine whether a requested clarification may be effectuated pursuant to the execution and delivery of an operating memorandum or whether the requested clarification is of such character to constitute an amendment of this Agreement which requires compliance with the provisions of Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council. 15.21 Acknowledgments Agreements and Assurance on the Part of Agensys. 15.21.1 Agensys's Faithful Performance. The Parties acknowledge and agree that Agensys's faithful performance in developing the Project on the Property and in constructing and installing certain public improvements pursuant to this Agreement and complying,with the Existing Regulations will fulfill substantial public needs. The City acknowledges and agrees that there is good and valuable consideration to the City resulting from Agensys's assurances and faithful performance thereof and that same is in balance with the benefits conferred by the City on the Project. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable. Agensys acknowledges that the consideration is reasonably related to the type and extent of the impacts of the Project. on the community and the Property, and further acknowledges that the consideration is necessary to mitigate the direct and indirect impacts caused by Agensys on the Property. 15.21.2 Obligations to be Non-Recourse. As a material element of this Agreement, and as an inducement to Agensys to enter into this Agreement, each of the Parties understands and agrees that the City's remedies for breach of the obligations of Agensys under this Agreement shall be limited as described in Section 11.2, Section 11.3 and Section 11.4 above. 15.22 Not a Public Dedication. Nothing in this Agreement shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Except as expressly provided herein, Agensys shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas 40 and buildings and improvements located thereon, by any person for any purpose inimical to the development of the Project, including without limitation to prevent any person or entity from obtaining or accruing any prescriptive or other right to use the Property or the Project. 15.23 Severability and Termination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law which becomes effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 15.24 Counterpart Signatures. The Parties may execute this Agreement on separate signature pages which, when attached hereto, shall constitute one complete Agreement. {Signatures on next page} 41 This Agreement is executed by the Parties on the date first set forth above and is made effective on and as of the Effective Date. Agensys AGENSYS, INC., a California corporation By: DRAFT Name: Title: CITY: CITY OF SANTA MONICA By: DRAFT Name: Title: ATTEST By: DRAFT Name: City Clerk APPROVED AS TO FORM: By: _ Name: City Attorney DRAFT 42 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: ALL THAT CERTAIN PIECE OR PARCEL OF LAND SITUATED IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT OF INTERSECTION OF THE SOUTHEASTERLY LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED TO SOUTHERN RAILROAD COMPANY, RECORDED IN BOOK 955 PAGE 142 OF DEEDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, WITH THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF STEWART STREET, 30 FEET WIDE, AS SHOWN ON THE MAP OF TRACT NO. 7993, RECORDED IN BOOK 98 PAGES 89 THROUGH 91 INCLUSIVE OF MAPS, IN THE OFFICE OF SAID COUNTY RECORDER, SAID POINT OF INTERSECTION BEING DESCRIBED IN THE DEED TO DEFENSE PLANT CORPORATION, RECORDED ON OCTOBER 25, 1941 IN BOOK 18890 PAGE 141 OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 13 DEGREES 55 MINUTES 00 SECONDS WEST, ALONG THE WESTERLY LINE OF THE LAND DESCRIBED IN SAID DEED TO DEFENSE PLANT CORPORATION, 4.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 76 DEGREES OS MINUTES AO SECONDS WEST, ALONG A LINE PARALLEL WITH AND DISTANT NORTHWESTERLY 4.50 FEET, MEASURED AT RIGHT ANGLES FROM AFORESAID SOUTHEASTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO SOUTHERN PACIFIC RAILROAD COMPANY, A DISTANCE OF 574.07 FEET; THENCE NORTH 13 DEGREES 55 MINUTES 00 SECONDS WEST, 285.01 FEET; THENCE NORTH 71 DEGREES 53 MINUTES 00 SECONDS EAST, 376.69 FEET; THENCE NORTH 15 DEGREES 21 MINUTES 30 SECONDS WEST, 10 FEET; THENCE NORTH 74 DEGREES 38 MINUTES 30 SECONDS EAST, 198.70 FEET TO A POINT IN THE NORTHEASTERLY PROLONGATION OF SAID WESTERLY LINE DESCRIBED IN AFORESAID DEED TO DEFENSE PLANT CORPORATION; THENCE SOUTH 13 DEGREES 55 MINUTES 00 SECONDS EAST; ALONG SAID NORTHWESTERLY PROLONGATION OF SAID WESTERLY LINE, 327.60 FEET TO THE TRUE POINT OF BEGINNING. Assessor's Parcel Number: 8940-288-023 and 8940-288-023 EXHIBIT "B" PROJECT PLANS Agensys, Inc. 1800 ,eooaTeveaTSTaerr _ _ __ _ i $ANTh MONICA~C0.90900 ., .__ _ _ -~ ARCRITHCTYRAI - ~ D RBVIHW BOARD ..~ ... m.w o - - ~ ~ SVDMITfAL R . ... ....._.... __ ._.... .____.. w ~ n m,e :.~..~., ~. owz~~o v..ai~: _...... __ ' vuiww.wr l __ ... ... ~ ~ ~ ~ ____ l .__ .w.owoM _ __ __ _ __ ..» n s- , .f ....,wry BERGAMOT w, STATION ~w H ® z ~ I "" - - ~ ® a a t , °~ ~~ ~~ 1 k®~ - a iq - . _ ~,~ ,. ... a..~ ~:, exPOamox BLVD c.vlo»r~. M Nw co ».w~e r.w.r.,..ar. , 0.GBSIiEPVN y~p~a, BTARDARD TREE PROTEGTIOx 20RH GDIDHLIxaB - SITE P{.AN .. u.unc.r ui ii....w in nw®+wvuue.i...e.iunn[smp„wsemmwmn.u.m.vminiw 091112010 " ~» ®.,mmq : .m . .... ~~ ...w.....,., s,.,w,,.wow.m.,w. sae9 wt M w w>.-m..,~_,m~.wM ..~~~..I,pr.w.,,.a,.-..„.,...r-._.~.n~ , ~ ARB-101 Agensys, Inc. -~` `~~ - --- ----- - --- --- -- 1800 /'"~~ L" ~ i0W 5iEWPRTSiPEEi SOMA MONIG, CA 9pW4 .,~.~ I ARCHITECTURAL RBVIEW BOARD h - .. \ •~ •' \ •~ \- \ •~ \- • •~ \- • \- • SUBMITTAL I __ ___ ~ -___ t I FI FB'IBFI9 I Y- _ _ _ ~I I F F F1 FI FIB 1~- L ~`F Y I F 1B Fl 19 FIYe %Ra.{ I I I I IA `E~ ' at ~Flie 1 n 19 F o X20 3 - - - \ ~ ~ IJ 19 1J 13 J 13 19 _ • II ~ F ~ ~~ ~ @m ~I__' °~°~~ .~.~I r~>, Ire. - -i F~ - ~ ~ _ / ~.o~ _ 1 - ~ x~w l.e.,e.llwm r.w ._ 1 - - _ e nu~,w 4 u 1 `~ c~wlxl'n - I ~ ~ ~ .. .... ~ ~ ~~ ~ 1~ ~~ ~ ..o~ and ___________ _____________c____________________________________-________-_____ ° ;~ o. SITE rt ~ ~ LIGHTING PLAN a,mw- E,+,m. -- ~Mw ARB-102 Agensys, Inc. 1800 _ ___________^ 10W STEWPRT STREET $4NTAMpNICA G.B0006 ~ __ 1 ARCHITECTURAL ----'~' -~-~ 1 REVIEW BOARB ___.-_ __________--_ ~ ~ SUBMITTAL _-______ _ ________ ~ ~ ~ - - ~" __- __- _ ___ I , 1 I __ 1 I _ I ~ I _ 1 ~, ~ , 1 I g 1 1 I 1 1 I ~ Y ~ I 1 I yI I e 1 I ~ ~ ~ 1 ~smwrinwz ^ ^ 1 u^ `l ~~ v I I ~I 1 I I - - ~ o - _-_ _ . -Y -- I _ u~ I I 1 W~ u . ~~ 1 1 I • ~ 1 I I I 1 I I 1 I I I 1 I ^~ v O ~ I MWNeN~n•WneI LLP l l l 1 I lwr sp M InlMan I 1 i • i IMnNM Caerv111M '(.fie ®j J r. ~ r. c u ~ • • I • I I wuw FRRi ~ a+~suv mx I . 1 I ~ ~ I wnrvwnnc _ ___ __-______________-____ ___-_____ __ ______________________ _ __________ OVERALL N. FIRBT FLOOR PLAN ` owl~rzom NN _ WJLFINSIRp]A°"" ARB-201 Agensys, Inc. 1800 18W STEWPfYt 31'FEE! 3ANTAMpNICh CA.BM00 aecROrecruRA~ REVIEW BOARD 8UBMITTaL n ~1 v -.~-.-. ~. • o - 0 ou u ... • 4 ~' . . i n bromew..l ur . YeMboMw v.vb»re.v i Inbrlen YWnNg l (r/m\a~/+\a~ \/ V w llq ~ ^ u ~ nrwmu ~ OVERALL SECOND FLOOR PLAN oulz~zolo Ww~ ~.,p era saeo ' ""a'W~"'~°NN"°°a""" ARB-202 Agensys, Inc. 1800 ieoosrervaarsrneer 54NTp MONICA~CA. SVfpp ARCHITECTURAL REVIEW 80ARU SUBMITTAL ~, __ Yv Y I - /~I - ~ ~-1 4 /1 t `/4 ^ ~ I--T IJ N~I.W IKKbmlloiW LLP v.ml...n.o PlvnnlnB e .x \J V nn¢. OVERALL .. -- ~ THIRD FLOORIROOF PLAN • owivm,a Aullp, ~ enw ~~ ~orE~i,NlNOaoa+owx ARB-203 EOE~88tl ismsasulmne~eav ` ~ onus a„~, +w~v ~....w~ NVId aoo~d isaii j-~ -- ~-'---1- _1_--'--_ 1'_'____ 1_-- '-'--~------ ~-'-- ~ '- ~ I s ~Niavna -- a 9 y - ---- ~~~°-----0 : I ,ua .u ., i a ~a.i I i I ~,~.. ~n~~.,~, ~ ~.~ I I , v a ~, I I ~ I i °r i ~ i i s~ ~ i I i I , I• I) ~~ eolx•..=a Wn~•u ~ _ ~ -~ ~ I ~ ., I I . I ~ ~ w,..NWi rb~~ mi•ww..sw u a 1 ~ ~-~~ -¢ ' I ~ ------ ~ I - --.- -- -- - ( i ----- eUL wa .' a -- - - ~-..-- 9 - - ----- -- - - 9- --- ------ - ' 0 ------..-- ® I L ~ I N 9 I I I I ° I I i I .,, I ~ I .. Y; ' ~ 00 -- f== ; - -- ' - -- - - - I ~ I I ` i I t ~ T ~ - - -- -- --- ----~ e g ~ ~ a~"~ w ~ ~ ~ . , `~; I i a ' i I ; ~ , i I ~. a ~ ~s I .... i I , -_'~ . ', ' I is : -_- _ ~ ~ 3d .o,. ,tiro ~ 9 o~~. ... ___ M.,- --_ . I ~ 9~ I --_~ I .a,,. .a .., s I Ia a, ,Ian I ____ r ' I r x I I ~ : ~ ~ ~~ I ; I I I o a ~ ~ ~ addoe x~~ as ivanaaayaoav N .~ ___ I __~ ~ - ' - ~ __ ___ __ - __ __ - --- - - *~" ----~ DO4M'tlJ'tlJINOW tl1Ntl5 133tl1S1tlbM315008L - -~ ~ ~ r I ~ . ~ ~••~ _ ..~ ~'.. ~.. ~.. .i~.._.._.._.1:_.._.._.I_.._.._.:',~..~.. ~..y~..~.. ~-~I~~ 0086 .,~ m n a •aui `s~fsua~~ zL a v I Agensys Inc „ Q Q Q , ., ~ 7800 -.-~ _ _ _ _ A 10W SiEWPRT SiPEET S4MAMONICA, C4. 90106 I i ARCMITEGTURAL REVIEW BOARD 1 - _--- _ i ----_-_ • I I I_I ~ a i SUBMITTAL I I I ~ ,~. are ~.~~,,.a, 9 r______ _____ _ ___ 0 owl i ~o.v i ~o.p v v v.e • a _______ i ~ . ' ...:. I o -____ I__~~ . I I _ . -- ___ c a I I I II ~o.~. . k cl I I I l I I s E ~ I I I I ~A I DO ~ I i $ I ~ , i ! a a ~..~ a --- --- I ~ I ~ ~ I - ----I '~ --- MLYI IMmNloml LLY ' I :, w aoMx. pmlw..Mv I aY~l` I ~ _ I 0 Cae•IwNN9 ~' I ~ I /\ /~ . ' ~ xirvm. ' \/ \l -~ - I wrmc 0 _ __ _'_ ;-__ _J_~~6NM~ __J..__-__ liI_ l ~ BUILDING FIRBT C ~ FLOOR I ___PLAN . o9naao~o -_ __ o- n~imr~ uw w M u~e ~unlu~cnu+aaox ARB-304 Agensys, Inc. 1800 .° .o> i iOW SREWPRTSTPEET ~ * .lo ~ ~ ______~P__ _____________ ___~ _ __.~~._r __~__~ TURA1. R o-- ~J '__- --- _-_ _ ___ -_-_- € ____ '~_ --- --_- - --- - --= - _- -------'=-- SVBM ~n,~ ~ k ~ ~ ~ 0 _ u' -- -- -- _ ~ o- ---- - - - -~ -- - _ ~ ° ~ - -- - - - - -- -- - ----- --- h ,- ~ _ ~` Y ~ ° ~~ F o- --- -- -- - - ___ ___ - __ -_ __-___ __ __ _^ - - -' -------- _ ~ -- E i ~ ~ i~ ~~` ti° i ~ ~ ~ i ~ ~ 00 4 ~ ~ - o- ~ -- - -° - - - ----- - ---- ~ :~: = -- ~ ( . : --- ;~ - -~v-~ ; i s~- Y,.a. I~ „ ~ ~ , '~ ~ ~~ ~ ~ ~~ ~~ ,.~P, rtennW I Couuuplnp mnsuv.am m -~ rtmv~wa a u5 m.a Y I BUILDING D FIRST FLOOR -_PLAN- ~ . •. oaorrmia -_ _ ~ -- armor" ' uw oM Pa°°'~~°PU'F~°P ARB-305 ~ ~ ~ ~ s Agensys, Inc. 1800 _.._~.IL ~ o--_ ~Ii,. I = .._.._ .L.. __ ~° I i _ _.._...L...._ _ _____ ___ ..,_. L..~.._. _.. •~•• _-_ __ ____ ___ __ __ ~.._. _.. _. •~• .~.. ~.. __ ___ _ ___ __ ___ ~~ ____ . ~... ~ -_-_-_ .. _ ~ A IBW STEYYPRT STPEEi SANTAMONICA~CA, 9JW6 ARCHITECTURAL REVIEW BOARD SUBMITTAL ' ' ~..v ~o.> w.v ~o. ~~ M w.e ~a.n ~mP ~a.v ... -~ ~ ~o.o~ .„.P ' m.v ~o.a ` .. ~a..~ ~- -A ~ I I I i I i ~ I i i I I 1 4 > __ I I u I I I I I I I a- - - i j, I, - I ---- ~~PI .:~ ' ' I _ I I ~I I I I ' I I ~I I I y I `~ I I ~ I ~ e I o-_- ~ ~ -~ - - - - -- -- - y , ~ - ---- ---; - ---- F - - 0 I , I, I ~ I - ~ ~I J .......... .~.~ I *~~ I I I . I I I o----- - . - ~ -------- -- e ~ ~ ---gam --- I I I ------ , a ~ . I ~ e '~~ . ~,.m.,M~. ~~ I I ! I II I I I - ,., .~. --,_ . .~ ,,. I I ----~--------~ I I II I - -- - ----- ----- ~.~,. -~- I I -- .,. --- a --- . n ,.~ - -_ ~ II - -- II ---- a - „ M_ ~~ ,.,~~ ~..M~ ,rv X.n~, I I o-.____A~I _ •~ lil ________ -- I I __ _____ ___ I I i _______ _ - __ _= I___ __ I ~~ I I I i ~ ________ I _ ___ __.____ I I I I ~ i i __ '~~f_____ ~ P I _ ~o~ oM BUILDINGB SECOND FLOOR PLAN owivmio anmr•. ..o. $aeo Mp OF09M~~WOfi EECQUU0.WH ARB-306 Q Q Q ~ ~ Agensys, Inc. 7800 . • ~ 1Wp STEWAPTSTREET SANTAMONICP. CA.BpbO ~I ~ ~ I I --~-~---~ -------Q axcxrcecruxa~ l i i I I ~ I nevn=.w soaxo suem~rra. __e. ~ I - I I ~ ~i ~. I. I - 12 -----0 s • ~ ~; ~ ~ ~; I >sk ~ <t~ 'I I ; ------o ` ~ I j DD a- - I _ --- ~0 ~ I , ~.~ . o- --- - - i W M,.~.~..,.~. I -- i -- I - - -o :;Ep~wn c.ew.~iro m x a iuWOp _____ _ _ I nww ~ e.. rv~ ~ rt * wrv xw.aw ----- ------Q ~ , rvvam~s BUILDING C I ~ i .r; SECOND I ( I FLOOR I II PLAN psr~a~wia Autlwrv: neu Si¢0 ~ `""~°~"°° ~°°"°f'°°^ ARB-307 Agensys, Inc. 1800 ieoosrtvuaarsTasar $PNTPMONIG~G90100 ~ I ARCNITECTURAI f REVIEW BOARD ~~ I BVBMITTAL I I I _ I _ ~ ~ ~ 1 I _ ____ - I __ -_-_ _ _-_ _ 1 P _-_-' - _____ -_-_- __ _ A _ _-_-___ ~:.. - _- ~ y e x ~ I ° ~, ~..,~ ~,..~, ,,.. ... . ,~ I s.,~ ... I I , .,. I e. I o- ., ___ ~ .~.. °- - --T~ - ~ - - - -- -- ~ - ' ~ I w~ ..,. ... I o I ~ ~ t w ..I >rPl ~~ I I rs I I .~ ~ I I o- --- ~ ~ ` " § i I - - - - ~ --_ - I - --- --..--- ----- - - ~--- I ~ g ~ I ~0 F I ~ ~7~~ ' ~` o ~ I I I _ I I o t § I *" -~ ~ '~ f . . I I I o- - --- s - --- ---- I _- ~ I - - - • - ----- ;r-- ----- ~e- g --- ~ ~y ~ • ~ ~ i XlW plemaNVneI LLP ~ v C~aIJbaWn • XM x - I Mb I I .m' ,wc, ~ " i .. .mow I '* I hr" ' r~ I I I ..wm,a o~ BUILDIND D I SECOND FLOOR PLAN - ow~vzaia oMY A PNB~~I,~INOas«o.,oP~a RB-308 n C) G> >ro., -~ a ---~-~ Agensys, Inc. .o j l I I I I I I I 1800 ~~_~_~- S9NTAMON CA~CApE9J900 __. __ _. _..._ _ _-_ --__, _/,~ ARCRITBCTURAL j j z SUBMITTAL I __ ~ r I ~ I I I I I I § ~ - ~ I I I I I I I i l I I I I I - -___ _ __ __ _ __I __ _ __ _ _ __ _ ___ _ 1 `I I _ _ _ _ _ _ ___ _____ _____ _____ ___ I I 1 I I I I I I I s I , I (I I I I I I I I j , e II --- - I --- I - - ~ ----- I - -- - --- -= - - I j - - - --- - - ` --- " -~ i I e. I I I I j oa •~ ,~ I I I. 'I i I j ~ I I ~~ ~ I ~ ~ j ' I ~ ri.~ I ! I ~ f i I, I ~ ~~ ~ I I I I ° - I I ~ . I j ~ 'I ~ ~~;~~E I .r,m.~ ~ ~ .o.~ ® _____ i j ________ _______ ___ __ ____ _ ______ -7- r -~ -I -r -7 -°'T I I I I I _ X~XI~MIU11ee4W ~eYlnxrNp '^'^'°^ . i j I I C ~ I rmoam wm~, I P ~ j .I -____.I I ._________ __________ __________ _______.__ . _____________ - __ ______._ - _____ ___ I _____ _ X -Q ~onM BUILIDING B I I I i i - _I , I THIRD I I~ I I I I I I s--- I I FLOOR/ROOF I I I I I I I I _. oanrmto A~imr•.. .R~ swo Mn AXX_XmamXX.X~XOr~~wX~r ARB-309 -- Agensys, Inc. Q Q Q Q Q Q Q Q ~ Q Q Q Q ~ Q Q Q Qni' 1800 HP.PpjP ~ ~ ' 1800 STEWPRT$TPEEi ]> 'tl $gNTAMONICA~LA, 9C1pq ARCHITECTURAL '°"° `" 'wo `" `" °N0 "' ° '" REVIEW BOARD - - - _ _ T °~ l, SUBMITTAL a~FU nn Nn ~zor.o o- ,o .-Q . . I I - _NSr o"-E6"B law bb....wm us mba.~ Inb.l nN~ w~mNa CouWtly oversuLL ELEVATIONS ARB-401 Agensys, Inc. 7800 1BMSTEWPRi SiPEET S4NTq MOWCF, C40DlDG ARCMITEGTURAL REVIEW BOARD 3UDMITTAL ~ i...swmw ~ u~ a p3p -,_.- _ _ _ ~44F ~BAH~~ Vp~~ ~PB~A ~~A~~ 9~~'~. rye 2 MB OVERlJ.L50UiH 6UILL BLD 1 I I I I I I I e1W NbNw~ ' i ~n oNW ~ _ - _ _ _ - ~ ~ - ~- t I I 1 f I I lrr-mN°°`-6 ...~w.~ -_- ~ 't i r Sl- ~ q . , r' t ,~ L ~. c _*ll+N2izvB a~.wnne.. --- i ' +t r ~ ~ L "?"'~ + ' t ~ u,, m,;~ ,b~:, ~,q " fi s ' z-~ ~ ~ i . #s~ ~ P~ ~F ~ _Ne „ ~~ , ~ z+ ~r + ~t. . ~,~- , .-~ v Nr. I ~ - * z < ~ ~ ~ ~ ELEVAIONS ~ , , t ,fi~ ~ .~. ~ .. .. .. ,., ~ .I _ FmE.u~A I i I f ~ ~ ,t 6 '.,I, -~.~ , ~.au ....~.wa.~ ., u«w~.wF....=~, ~~, ,~., <o.w~ ~ ov,.E,~~ " `"~ - osna~za,D __ ~~ --_ aam~" N~ o ww ^^~ WE~~DDTM ARB-402 Agensys, Inc. " 7800 10W STEWMiSTREEf $AM'AMONICA, CA. fWN6 ARCHITECTURAL RBVIEW BOARD BVBMITTAL ~~° E wa. vu -- ._-__.--_"-- -- ar=t?'B _ _ _ _ _ ~ ~~~ ~yP~ w.. '~3 v +f F r, JN.SL~f h~ ~ 1 PAN WEPwll FA6i F1fiVPipN enL LV ~ ~ w AicNllsc n un cwx u x vu ELX T u ~ rvm ru ~ SCR ENN tl~ ry - w 4 N P ~ rw. vu nvwrtDwe .rI { g` ^ vwnnc ~ I r f ~ y ~ _ LEGOtL'EV s,NS`.9 OVERALL _ ~ ~ ~ - ~ ,~'~ ~ I ~ `~''u ~~ °": ~ ELEVATION , h ~ ~ t „, n ,r ~ ~ ~~ ~ r . :, ..:.~.~ w.w~ i~..a~.N~,a~ w...~.N=w~ .w~..w~ ~~„... ~,~ r..... ou , _- - -- oaivzNlN -" - - Ammm NN, NO saes ERNI WENTEtEVATINN ARB-403 Agensys, Inc. 7800 ,BW STEWPAT STflEET ioemurv w u ~~i . ~cs ~ iermw ~~~ zai $ANtA MONICA CA.8000G wn nu w., ~ ws, rve,um ~ ~ s nrta~ y ~ ~ .xr<~ ~ ARCRITECTURAL REtl1EW BOARD f 8UEMITTAL -_ __-a n~_e ~ ~ i ~ ~ ..ten I I I ~ ~ ~ ~ I ~ I I I • I I I I I i I I I ~ i ( ~ I i ~ i i ~ 1 I I ~ ~ E I ll ' I I l I li ail ': ',II ~i i '"~,~i i~~- ~•o.n I ~ Nv,. .o< , .. 4~ n~.~... 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Aas susMlTrnL /x"r2Slt'~~%15: leaosrEwARr SEPTEMBER 13, 2010 SANTA MONICA CALIFORNIA ~ (PRB_9LpOG A'-BREEZEWAY WEST ELEVATION ATINSTpLLATION T5$ YYM a i4Yii 3 I;RB BLpW A~BREEZEWAV EAST ELEVATION a~INSTALLATION ~ `.tams. 2 IARB 9-0BG'A'- VEgR$ C #RCd li%t q ARB_BLBGA~BREEZEWAY Eq$T ELEVATION atP YEARS 7 Agensys, Inc. nee sus~wirrn~ fi z?Sl~t ~~r1S t8005TEWART SEPTEMBER t3, 2010 i SANTAMONICA, CALIFORNIA EXHIBIT "C" PERMITTED FEES AND EXACTIONS Agensys shall pay the following fees and charges that are within the City's jurisdiction and at the rate in effect at the time applications are made: (a) Upon submittal for Architectural Review Board (ARB) review, Agensys shall pay City fees for processing of ARB applications; (b) Upon submittal for plan check, Agensys shall pay City plan check fees; (c) Prior to issuance of construction permits for a Building, Agensys shall pay the following City fees with respect to such Building: • Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping, Excavation and Shoring Permit fees (collected by Building & Safety) • Construction and Demolition (C&D) Waste Management fee (SMMC Section 7.60.020) (collected by EPWM) (collected by EPWM) • Wastewater Capital Facilities Fee (SMMC Section 7.04.460) (collected by EPWM) • Water Capital Facilities Fee & Water Meter Instillation fee (Water Meter Permit fee) (SMMC Section 7.12.090) (collected by EPWM) • Fireline Meter fee (SMMC Section 7.12.090) (collected by EPWM) • Childcare Linkage Fee (SMMC Section 9.72.040) (applicable to office portion of the Project only) • Project Mitigation Measures (SMMC Sections 9.04.10.12.010 to 9.04.10.12.040) (applicable to office portion of the Project only) (d) Upon inspection of the Project during the course of construction, City inspection fees. 2. Prior to issuance of permits for any construction work in the public right-of--way, or use of public property, Agensys shall pay the following City fees: • Use of Public Property Permit fees (SMMC 7.04.670) (EPWM) • Utility Excavation Permit fee (SMMC 7.04.010) (EPWM) • Street Permit fee (SMMC 7.04.790) (EPWM) 3. Agensys shall reimburse the City for its actual costs to monitor environmental mitigation measures. The City shall bill Agensys for staff time and any material used pursuant to the hourly fees in effect at the time monitoring is performed. Agensys shall submit payment to the City within 30 days. 4. Agensys shall reimburse the City for its ongoing actual costs to monitor the project's compliance with this Development Agreement. The City shall bill Agensys for staff time and any material used pursuant to the hourly fees in effect at the time monitoring is performed. Agensys shall submit payment to the City within 30 days. 2 EXHIBIT "D" MITIGATION MEASURES AND CONDITIONS Section A MITIGATION MEASURES CONSTRUCTION EFFECTS CON-1 (a) Construction Impact Mitigation Plan. The applicant shall prepare, implement and maintain a Construction Impact Mitigation Plan which shall be designed to: •Prevent material traffic impacts on the surrounding roadway network. •Minimize parking impacts both to public parking and access to private parking to the greatest extent practicable. •Ensure safety for both those constructing the project and the surrounding community. •Prevent substantial truck traffic through residential neighborhoods. The Construction Impact Mitigation Plan shall be subject to review and approval by the following City departments: Public Works Department, Fire, Planning and Community Development and Police to ensure that the Plan has been designed in accordance with this Mitigation Measure. This review shall occur prior to commencement of any construction staging for the project. It shall, at a minimum, include the following: Ongoing Requirements Throughout the Duration of Construction •A detailed traffic control plan for work zones shall be maintained. At a minimum, this shall include: parking and travel lane configurations; warning, regulatory, guide and directional signage; and area sidewalks, bicycle lanes and parking lanes. The plan shall include specific information regarding the projects construction activities that may disrupt normal pedestrian and traffic flow and the measures to address these disruptions. Such plans shall be reviewed and approved by the Transportation Management Division prior to commencement of construction and implemented in accordance with this approval. •Work within the public right-of--way shall be performed between 9:00 a.m. and 4:00 p.m. This work includes dirt and demolition material hauling and construction material delivery. Work within the public right-of-way outside of these hours shall only be allowed after the issuance of an after-hours construction permit. •Streets and equipment shall be cleaned in accordance with established PW requirements. •Trucks shall only travel on aCity-approved construction route.. Truck queuing/staging shall not be allowed on Santa Monica streets. Limited queuing may occur on the construction site itself. •Materials and equipment shall be minimally visible to the public; the preferred location for materials is to be onsite, with a minimum amount of materials within a work area in the public right-of-way, subject to a current Use of Public Property Permit. •Any requests for work before or after normal construction hours within the public right- of-way shall be subject to review and approval through the After Hours Permit process administered by the Building and Safety Division. •Provision ofoff-street parking for construction workers, which may include the use of a remote location with shuttle transport to the site, if determined necessary by the City of Santa Monica. Project Coordination Elements That Shall Be Implemented Prior to Commencement of Construction •The applicant shall advise the traveling public of impending construction activities (e.g:, information signs, portable message signs, media listing/notification, implementation of an approved traffic control plan). •The applicant shall obtain a Use of Public Property Permit, Excavation Permit, Sewer Permit or Oversize Load Permit, as well as any Caltrans Permits required, for any construction work requiring encroachment into public rights-of--way, detours or any other work within the public right-of-way. •The applicant shall provide timely notification of construction schedules to all affected agencies (e.g., Big Blue Bus; Police Department, Fire Department, Public Works Department, and Planning and Community Development Department) and to all owners and residential and commercial tenants of propertyin the neighborhood bounded by Stewart Street, Centinela Avenue, Pico Boulevard, and Exposition Boulevard and the Mountain View Mobile Home Park. •The applicant shall coordinate construction work with affected agencies in advance of start of work. Approvals may take up to two weeks per each submittal. •The applicant shall obtain Transportation Management Division approval of any haul routes for earth, concrete or construction materials and equipment hauling. CON-1(b) Diesel Equipment Mufflers. All diesel equipment shall be operated with closed engine doors and shall be equipped with factory recommended mufflers. CON-1(c) Electrically-Powered Tools. Electrical power shall be used to run air compressors and similar power tools. CON-1(d) Restrictions on Excavation and Foundation/Conditioning. Excavation, foundation-laying, and conditioning activities (the noisiest phases of construction) shall 2 be restricted to between the hours of 10:00 a.m. and 3:00 p.m., Monday through Friday, in accordance with Section 4.12.110(d) of the Santa Monica Municipal Code. CON-1 (e) Additional Noise Attenuation Techniques. For all noise-generating construction activity on the project site, additional noise attenuation techniques shall be employed to reduce noise levels to City of Santa Monica noise standards. Such techniques may include, but are not limited to, the use of sound blankets on noise generating equipment and the construction of temporary sound barriers between construction sites and nearby sensitive receptors. CON-1 (f) Construction Sign Posting. In accordance with Municipal Code Section 4.12.120, the project applicant shall be required to post a sign informing all workers and subcontractors of the time restrictions for construction activities. The sign shall also include the City telephone numbers where violations can be reported and complaints associated with construction noise can be submitted. HAZARDS AND HAZARDOUS MATERIALS HAZ-1 Asbestos-Containing Material. Due to the age of the building being demolished, asbestos-containing materials (ACM) may be located in the structure. Exposure to ACM during demolition could be hazardous to the health of the demolition workers as well as area residents and employees. Prior to the issuance of any demolition permit, the applicant shall provide a letter to the Building and Safety Division from a qualified asbestos abatement consultant that no ACM are present in the building. If ACM are found to be present, hazards shall be abated in compliance with the South Coast Air Quality Management District's Rule 1403 as well as all other State and Federal rules and regulations, to the satisfaction of the Building and Safety Division. TRANS PORTATION/TRAFFIC T-1 Transportation Demand Management. Performance Standards. Agensys shall ensure that vehicular trip generation patterns meet the following performance monitoring requirements: AVR Requirement Agensys' initial employee average vehicle ridership (AVR) requirement shall be 1.6 until such time that the Expo light rail is operational. The AVR requirement shall increase to 1.75 within one year after the Expo Line commences operations. Agensys shall determine AVR through employee surveys for one consecutive week during the year. For the purposes of determining AVR, employees who telecommute, have compressed work weeks, or travel or from work by foot, bicycle, public transit or outside of the peak commute hours shall be considered to have carpooled. Chapter 9.16 of the SMMC shall govern how the AVR is calculated. 3 TDM Plan Program Elements The specific program elements related to the. TDM plan for the Agensys project are as follows: 1. Transportation Information Center. Agensys (or Agensys's successors and assigns) shall provide on-site information for employees and visitors about local public transit services (including bus lines, light rail lines bus fare programs, ride share programs, shuttles) and bicycle facilities (including routes, rental and sales locations, on-site bicycle racks and showers for the tenants of the Project). Agensys (or Agensys's successors and assigns) shall also provide walking and biking maps for employees and visitors, which shall include but not be limited to information about convenient local services. and restaurants within walking distance of the Project. Agensys (or Agensys's successors and assigns) shall provide information to tenants and employees of the Project site regarding local rental housing agencies. Such transportation information may be provided through a computer terminal with access to the Internet or, via a website. 2. TDM Website Information. Agensys (or Agensys's successors and assigns) and tenants shall be required to make available via a website transportation information such as the items noted in No. 1 above, including links to local transit providers, area walking, bicycling maps, etc., to inform employees and visitors of available alternative transportation modes to access the Project site and travel in the area. 3. Employee Transportation Coordinator. An Employee Transportation Coordinator (ETC) shall be designated for this Project by Agensys (or Agensys's successors and assigns) as required by the City of .Santa Monica's Transportation Management Division in accordance with Ordinance 1604 (SMMC Section 9.16). The ETC shall manage all aspects of this TDM program and participate in City-sponsored workshops and information roundtables. An ETC shall participate in the Bergamot Station area TMA (see No. 7 below) following its formation. The ETC shall be responsible for making available information materials on options for alternative transportation modes and opportunities. In addition, transit fare media and day/month passes will be made available through the ETC to employees and visitors during typical business hours. 4. Parking Reconfiguration After Occupancy. Any reconfiguration of the parking spaces and operations in order to facilitate partial unbundling of parking and/or flexibility of use shall be considered a Minor Modification under the Development Agreement and shall be subject to City approval. 5. Pedestrian Wayfinding. Agensys (or Agensys's successors and assigns) shall provide and maintain a pedestrian wayfinding program directing employees and 4 visitors to/from the Project site and public transit, including the bus lines and future nearby light rail station. Such signage shall be subject to review and approval by the City. 6. Preferred Drop-off/Pick-up Loading Zone. As shown on the plans approved by the City, Agensys (or Agensys's successors and assigns) shall designate an on-site preferred drop-off/pick-up loading zone that will provide direct access to the Project site so as to discourage on-street double parking. Parking time limits in this on-site designated zone shall be enforced by Agensys (or Agensys's successors and assigns) to facilitate adequate availability of the loading area. 7. Transportation Demand Management Association. Agensys shall be required to participate in a Transportation Demand Management Association (TMA). As part of the LUCE Update process, the City has identified that a TMA should be established for the Bergamot Station area. TMAs would provide employees, businesses, visitors and residents of an area with resources to increase the amount of trips taken by transit, walking, bicycling, and ridesharing. Agensys (e.g., as represented by the ETC or others) shall attend organizational meetings, provide traffic demand data to the TMA, and make available information to its tenants relative to the services provided by the TMA. Agensys may delegate any of its TDM program requirements to the TMA (i.e., offer the required programs through the TMA instead of directly as part of this TDM program.) Agensys may seek to modify the requirements in this Section subject to the reasonable approval of the Planning Director as a Minor Modification under the following circumstances: a. If the TMA assesses dues or other charges that are not proportional to square footage or number of employees; b. If the TMA charges for services Agensys is already providing; c. If the TMA assesses annual dues over the average fee for TMAs in the Los Angeles region; or d. If the TMA seeks to impose programs that Agensys believes would adversely affect Agensys' TDM program or its ability to achieve the AVR requirements herein. 8. Carpool Program. As shown on the plans approved by the City, Agensys (or Agensys's successors and assigns) shall provide preferential parking within the parking areas for Project employees who commute to work in employer registered carpools and vanpools. Preferential parking spaces are those considered most desirable, e.g., close to the entrance or exit. Agensys shall place signs or markings to designate the spaces reserved for carpools and vanpools. An employee who drives to work with at least one other employee in the Project or adjacent facilities may register as a carpool entitled to preferential parking within the meaning of this provision. 9. Employer Transportation Allowance. Agensys (or Agensys's successors and assigns) shall provide each employee a monthly transportation allowance equivalent to no less than the monthly cost of the Metro EZ Pass. The employee may use the cash allowance to: 1) purchase a monthly transit pass; 2) off-set the costs for 5 parking a vehicle on-site; 3) off-set the costs for equipment related to walking or bicycling to work; or 4) otherwise use at the discretion of the employee. 10. Parking Pricing. Parking pricing shall be market-based and adjusted periodically in an effort to ensure parking .availability for employees and visitors during .peak parking hours. All employees will be required to pay for parking a vehicle on-site. Employees shall be prohibited from parking in the neighborhood. 11. Convenient Parking for Bicycle Commuters. As shown on the plans approved by the City, Agensys shall provide location(s) within the parking facility or other convenient location within the Project site for secure bicycle parking for employees working at the site and visitors to the site. Bicycle parking shall be provided for a minimum of 25 bicycles, which is equivalent to approximately 12.5% of the total vehicle parking spaces proposed to be provided for the Project. The secure bicycle parking shall be located within the Project site such that long-term and short-term parkers can be accommodated. For purposes of this requirement, bicycle parking may mean bicycle racks, a locked cage, or other secure parking area. Agensys shall not charge for bicycle parking and shall expand such parking as Agensys determines is needed to accommodate demand. 12.On-Site Showers and Lockers. As shown on the parking plans approved by the City, shower and clothing locker facilities shall be provided for on-site employees who bicycle or use another active means, powered by human propulsion, of getting to work. 13. Compressed Work Week Schedule. Agensys shall offer, where feasible, a Compressed Work Week schedule for employees whereby their hours of employment may be scheduled in a manner which reduces trips to/from the worksite during peak hours for the surrounding streets. 14. Flex-Time Schedule. Agensys shall permit, where feasible, employees within the Project to adjust their work hours in order to accommodate public transit schedules, rideshare arrangements, or off-peak hour commuting. 15. Guaranteed Return Trip. Agensys (or Agensys's successors and assigns) shall provide employees within the Project who vanpool or carpool, with a return trip to their point of commute origin at no additional cost to the employee, when a Personal Emergency Situation requires it. 16. Carshare Space. Agensys shall undertake reasonable good faith efforts to retairi a carshare provider and shall provide. at least one parking space at no cost for a public carshare vehicle. 17. Coordination. Agensys will use reasonable efforts to coordinate ridesharing programs, including vanpooling, among its employees and in coordination with nearby businesses. 6 TDM Plan Monitoring and Modifications AVR Monitoring Requirement. Agensys shall provide a baseline survey to be filed within 6 months of issuance of a final C of O for the project. Thereafter, the City shall monitor TDM plan performance based on Agensys's annual ETRP. In the event that the applicable AVR requirement is not reached in any annual ETRP, Agensys, shall propose modifications to the TDM program to achieve the AVR requirements by the next ETRP. Such modification shall be subject to approval as a Minor Modification. The AVR shall be monitored through the annual Periodic Review for the term of this development agreement. 2. Changes to TDM Program. Subject to the reasonable approval by the City's Planning Director, Agensys may from time to time modify this TDM program. Section B CONDITIONS OF APPROVAL PLANNING AND COMMUNITY DEVELOPMENT Project Specific Conditions The existing driveway, located on the northern half of the subject site shall be exit only. Furthermore, due to the proximity of this driveway to the Stewart Street and Expo Light Rail crossing, it may be necessary to install an extinguishable "Train Coming" indication facing traffic exiting the driveway. 2. Good Neighbor Policy. Agensys, Inc. shall develop a written Good Neighbor Policy advising Project employees and visitors (i) to utilize the travel routes to and from the Project site that avoid local residential streets and (ii) not to park in the residential neighborhoods near the Project site. 3. Privacy for residential uses. Agensys, Inc. shall ensure privacy for residential uses by requiring that the Project's south-facing windows shall be clerestory-type and designed to allow for natural light in the adjoining research and development and manufacturing space and not to allow for views of the- 4. Pedestrian path. A public pedestrian path connecting the widened sidewalk at Stewart Street to the Bergamot Station has been incorporated into the plan. The pedestrian path will be approximately 570 feet long and vary in width from approximately 10 feet to 40 feet. The pedestrian path will be accessible to the public from (i) the earlier of 6:00 a.m. or one-half hour prior to the commencement of daily Expo Line operation at the planned station adjacent to Bergamot Station, until (ii) the later of 11:00 p.m. or one-half hour after Expo Line operations cease. Such public access shall be for walking, strolling, reading and other similar activity, as well as allowing cyclists to walk with their bikes along the path. In addition, Agensys shall develop a signage and way-finding system to direct pedestrians to the pedestrian pathway, public cafe, and on-site publicly accessible open space. Such signage shall be subject to the review and approval of the Architectural Review Board. 5. Pedestrian Cafe Open to Public. A pedestrian cafe open to the public, at a minimum, during the hours of 11:30 a.m. to 2:30 p.m. Monday through Friday is provided. The cafe would be limited to pedestrians only as no on-site parking would be made available to cafe patrons. The pedestrian cafe is designed with approximately 40 indoor and 60 outdoor seats. The DA requires Agensys, Inc. to use reasonable efforts to make residents and workers within walking distance aware of the pedestrian cafe including, but not limited to, the hours that it is open to the public and that no parking is available for cafe patrons. 6. Public Open Space Adjacent to Stewart Street. A passive open space adjacent to Stewart Street is proposed. The open space would be approximately 5,100 square feet and would be open to the public from dawn to dusk daily. 7. Widened Sidewalk along Stewart. A widened and improved sidewalk adjacent to Stewart Street will be provided. The sidewalk will be widened at the entry to the passive open space and the central entry driveway. The sidewalk would be widened for a total sidewalk width of 14 feet and length of 100 feet. A planting area will be added between the existing sidewalk and the new parking stalls at the north of the site. The new building at the southeast corner of the site will be set back eight feet from the existing edge of the sidewalk. The area adjacent to the sidewalk will be planted with a vegetated Swale to capture rainwater runoff. 8. Traffic Demand Management Program. A Transportation Management Plan will be incorporated with the project. The TDM plan requires several elements to help achieve a high level of trip reduction. Aggressive Average Vehicle Ridership (AVR) rates. of 1.6 (initially) and 1.75 (after the light rail train is operational) will be required due to the project site's location within a "Higher Goal" District of the LUCE. Agensys, Inc.'s current level of achievement is 1.25 AVR at its existing locations within the City of Santa Monica. Additionally, the following TDM program elements are included in the plan: • Mandatory participation in a Transportation Management Association (TMA); • A Transportation Information Center; • TDM website information; s • An Employee Transportation Coordinator; Pedestrian way-finding signage; • Opportunities for shared parking; • An on-site drop-off and pick-up loading zone; • Carpool program; • Transportation allowance for employees (parking cash-out) covering the costs of a transit pass; • Parking pricing (payment for parking on-site) at market rates; • On-site secured bike parking, and on-site showers and lockers for employees who bike to work; • Possible public car sharing space; • A compressed work week schedule and flex-time schedule; • Guaranteed return trip home for employees; • Astringent monitoring and compliance plan. 9. Sculpture Garden. A sculpture garden is proposed to satisfy the provisions of the City's Cultural Arts Requirements. The sculpture garden would be installed on concrete pedestals with up to 10 sculptures adjacent to the pedestrian path. The initial set of sculptures will be made primarily of stainless steel, will be up to 10 feet in height, and may have an abstract biological theme. Agensys, Inc. will be responsible for the costs of transportation, installation, maintenance, security, and special lighting of the sculptures. Agensys, Inc. would change sculptures from time to time with the approval of the City's Arts Commission. 10. Local Hiring Program. A local hiring program is proposed and components of the program are discussed below;. however, all provisions and definitions of the program are detailed in the Development Agreement. • Job Fair. Agensys, Inc. will organize an annual symposium/job fair designed to increase job opportunities in the biotechnology industry for City residents, including at-risk youth and young adults, in the vicinity of the Project site. Agensys, Inc. will solicit and consider in good faith reasonable suggestions from interested community groups in connection with the symposium/job fair. Agensys, Inc. may invite other biotechnology companies to participate. The symposium/job fair will include (a) any other businesses in the area that are interested in mentoring and providing internship programs for at-risk youth who live in the vicinity of the project site, and (b) a jobs fair to match residents in the neighborhood to .job opportunities in the biotechnology industry. The first symposium/job fair will be held on or about the first anniversary of the issuance of a certificate of occupancy for the Project and on or about each subsequent anniversary of such issuance thereafter for five years. 9 Local Hiring Policv. Agensys, Inc. will implement a local hiring policy for the Project. Guidelines include: Targeted Jobs Applicants. Targeted Jobs Applicants will be low-income individuals and other City residents. Agensys, Inc. will consult with trade unions with apprenticeship and cooperative programs as appropriate to facilitate the hiring and training of apprentices from the local neighborhood. Coverage. The Local Hiring Policy will apply to hiring for all.on-site jobs by Agensys, Inc. and its contractors. Outreach. In order to inform Targeted Job Applicants of job opportunities, in addition to the job fairs Agensys, Inc. (or, during Project construction, the general contractor) shall advertise job openings in the Santa Monica Daily Press or similar local newspaper. In addition, Agensys, Inc. will provide telephonic or email notice of job opportunities to two community- based organizations, including one in the Pico neighborhood, to be jointly selected by Agensys, Inc. and the City. Hiring. Agensys, Inc. and its general contractor will consider in good faith each Targeted Jobs Applicant in accordance with their respective normal hiring practices. Term. Agensys, Inc. will implement the Local Hiring Policy commencing on the Effective Date until the seventh anniversary of the issuance of a certificate of occupancy for the Project. 11. Internship Program. A student internship program will be provided and will include at least two paid internships in biotechnology to students who attend Santa Monica College or are residents of Santa Monica. One of the internships will be a full-time position during the summer and the other will be a part-time position during the school year. 12. Student Tours. During each school year, Agensys,. Inc. will send a letter to the Santa Monica-Malibu Unified School District inviting high school students (grades 9 to 12) for a total of four tours of the Project to help the students better understand the biotechnology industry. Each tour will be limited to 30 students at one time and will include a lecture from an Agensys, Inc. scientist. Students shall be accompanied at all times by teacher. 13. Shared Parking. Shared parking for events at Bergamot Station will be provided. Upon at least 30 days advance notice, Agensys, Inc. will make the parking area available at least five times per month between the hours of 7:00 p.m. to 10:00 p.m. Monday through Friday and from 11:00 a.m. to 10:00 p.m. Saturday and Sunday for special events at Bergamot Station. Agensys, Inc. may charge for 10 such parking at then-prevailing market rates, and establish reasonable rules and regulations for the use of and access to and from the parking area. 14. Continuing Community Outreach. To encourage continuing community outreach, at least twice in the first year following completion of the Project, and at least annually thereafter, Agensys, Inc. will hold a community meeting at the Project site with the residents living in the neighborhood bounded by Exposition .Boulevard, Stewart Street, Centinela Avenue, and Pico Boulevard and the Stewart Street Mobile Home Park residents. Agensys, Inc. will provide residents with at least 15 days' prior written notice of such meetings by U.S. Mail. The purpose of the meetings will be to identify and address any issues that may arise from Project operations. Furthermore, Agensys, Inc. will designate a community liaison coordinator to respond to any requests for information or respond to complaints. Administrative 15. In the event permittee violates or fails to comply with any conditions of approval of this permit, no further permits, licenses, approvals or certificates of occupancy shall be issued until such violation has been fully remedied. Conformance with Approved Plans 16. This approval is for those plans dated September 7, 2010, a copy of which shall be maintained in the files of the City Planning Division. Project development shall be consistent with such plans, except as otherwise specified in these conditions of approval. 17. Minor amendments to the plans shall be subject to approval by the Director of Planning. A significant change in the approved concept shall be subject to review as provided in the Development Agreement. Construction shall be in conformance with the plans submitted or as modified in accordance with the Development Agreement. 18. Except as otherwise provided by the Development Agreement, project plans shall be subject to complete Code Compliance review when the building plans are submitted for plan check and shall comply with all applicable provisions of Article IX of the Municipal Code and all other pertinent ordinances and Genera( Plan policies of the City of Santa Monica prior to building permit issuance. FEES 19. In accordance with Sections 9.04.10.12.010 to 9.04.10.12.040 of the Santa Monica Municipal Code, prior to issuance of a building permit the developer shall 11 execute an irrevocable letter of credit or other form of security acceptable to the City for the payment of an in-lieu fee for housing and parks equal to $4.79/sq.ft. for the first 15,000 sq. ft. of net rentable office floor area and $10.66/sq.ft. for the remaining net rentable office floor area. This fee shall be adjusted for inflation by the percentage change in the Consumer Price Index ("CPI") between October 1984 through the month in which the payment is made. Upon mutual agreement of the developer and the City, the developer may satisfy the Project Mitigation measures by providing low and moderate income housing or developing new park space on or off the project site. To fulfill this obligation an agreement shall be secured in writing by the developer and approved by the City Attorney and City staff prior to issuance of a building permit. This fee will be $123,785.52 based on a net rentable office floor area of 19,872 square feet. 20. No building permit shall be issued for the project until the developer complies with the requirements of Part 9.04.10.20 of the Santa Monica Municipal Code, Private Developer Cultural Arts Requirement. If the developer elects to comply with these requirements by providing on-site public art work or cultural facilities, no final City approval shall be granted until such time as the Director of the Community and Cultural Services Department issues a notice of compliance in accordance with Part 9.04.10.20. 21. No building permit shall be issued for the project until the developer complies with the requirements of Chapter 9.72 of the Santa Monica Municipal Code, the Child Care Linkage Program. Mitigation Monitoring Program 22. Pursuant to the requirements of Public Resources Code Section 21081.6, the City Planning Division will coordinate a monitoring and reporting program regarding any required changes to the project made in conjunction with project approval and any conditions of approval, including those conditions intended to mitigate or avoid significant effects on the environment. This program shall include, but is not limited to, ensuring that the City Planning Division itself and other City divisions and departments such as the Building and Safety Division, the Department of Environmental and Public Works, the Fire Department, the Police Department, the Planning and Community Development Department and the Finance Department are aware of project requirements which must be satisfied prior to issuance of a Building Permit, Certificate of Occupancy, or other permit, and that other responsible agencies are also informed of conditions relating to their responsibilities. Project owner shall demonstrate compliance with conditions of approval in a written report submitted to the Planning Director and Building Officer prior to issuance of a Building Permit or Certificate of Occupancy, and, as applicable, provide periodic reports regarding compliance with such conditions. 12 Cultural Resources 23. No demolition of buildings or structure built 40 years of age or older shall be permitted until the end of a 60-day review period by the Landmarks Commission to determine whether' an application for landmark designation shall be filed. If an application for landmark designation is filed, no demolition shall be approved until a final determination is made by the Landmarks Commission on the application. 24. If any archaeological remains are uncovered during excavation or construction, work in the affected area shall be suspended and a recognized specialist shall be contacted to conduct a survey of the affected area at project's owner's expense. A determination shall then be made by the Director of Planning to determine the significance of the survey findings and appropriate actions and requirements, if any, to address such findings. Project Operations 25. The operation shall at all times be conducted in a manner not detrimental to surrounding properties or residents by reason of lights, noise, activities, parking or other actions. 26. The project shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). Final Design 27. Plans for final design, landscaping, screening, trash enclosures, and signage shall be subject to review and approval by the Architectural Review Board. 28. The Architectural Review Board, in its review, shall pay particular attention to the project's pedestrian orientation and amenities; scale and articulation of design elements; exterior colors, textures and materials; window treatment; glazing; and landscaping. 29. Landscaping plans shall comply with Subchapter 9.04.10.04 (Landscaping Standards) of the Zoning Ordinance including use of water-conserving landscaping materials, landscape maintenance and other standards contained in the Subchapter. 30. Refuse areas, storage areas and mechanical equipment shall be screened in accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas shall be of a size adequate to meet on-site need, including recycling. The Architectural Review Board in its review shall pay particular attention to the screening of such areas and equipment. Any rooftop mechanical equipment 13 shall be minimized in height and area, and shall be located in such a way as to minimize noise and visual impacts to surrounding properties. Unless otherwise approved by the Architectural Review Board, rooftop mechanical equipment shall be located at least five feet from the edge of the roof. Except for solar hot water heaters, no residential water heaters shall be located on the roof. 31. No gas or electric meters shall be located within the required front or street side yard setback areas. The Architectural Review Board in its review shall pay particular attention to the location and screening of such meters. 32. Prior to consideration of the project by the Architectural Review Board, the applicant shall review disabled access requirements with the Building and Safety Division and make any necessary changes in the project design to achieve compliance with such requirements. The Architectural Review Board, in its review, shall pay particular attention to the aesthetic, landscaping, and setback impacts of .any ramps or other features necessitated by accessibility requirements. 33. As appropriate, the Architectural Review Board shall require the use of anti- graffiti materials on surfaces likely to attract graffiti. Construction Plan Requirements 34. Final building plans submitted for approval of a building permit shall include on the plans a list of all permanent mechanical equipment to be placed indoors which may be heard outdoors. Demolition Requirements 35. Until such time as the demolition is undertaken, and unless the structure is currently in use, the existing structure shall be maintained and secured by boarding up all openings, erecting a security fence, and removing all debris, bushes and planting that inhibit the easy surveillance of the property to the satisfaction of the Building and Safety Officer and the Fire Department. Any landscaping material remaining shall be watered and maintained until demolition occurs. 36. Prior to issuance of a demolition permit, applicant shall prepare for Building Division approval a rodent and pest control plan to insure that demolition and construction activities at the site do not create pest control impacts on the project neighborhood. 14 Construction Period 37. Immediately after demolition and during construction, a security fence, the height of which shall be the maximum permitted by the Zoning Ordinance, shall be maintained around the perimeter of the lot. The lot shall be kept clear of all trash, weeds, etc. 38. Vehicles hauling dirt or other construction debris from the site shall cover any open load with a tarpaulin or other secure covering to minimize dust emissions. Immediately after commencing dirt removal from the site, the general contractor shall provide the City of Santa Monica with written certification that all trucks leaving the site are covered in accordance with this condition of approval. 39. During demolition, excavation, and construction, this project shall comply with SCAQMD Rule 403 to minimize fugitive dust and associated particulate emission; including but not limited to the following: • All material excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering shall occur at least three times daily with complete coverage, preferably at the start of the day, in the late morning, and after work is done for the day. • All grading, earth moving, or excavation activities shall cease during periods of high winds (i.e., greater than 20 mph measured as instantaneous wind gusts) so as to prevent excessive amounts of dust. • All material transported on and off-site shall be securely covered to prevent excessive amounts of dust. • Soils stockpiles shall be covered. • Onsite vehicle speeds shall be limited to 15 mph. • Wheel washers shall be installed where vehicles enter and exit the construction site onto paved roads or wash off trucks and any equipment leaving the site each trip. • An appointed construction relations officer shall act as a community liaison concerning onsite construction activity including resolution of issues related to PM~o generation. • Streets shall be swept at the end of the day using SCAQMD Rule 1186 certified street sweepers or roadway washing trucks if visible soil is carried onto adjacent public paved roads (recommend water sweepers with reclaimed water). • All active portions the construction site shall be sufficiently watered three times a day to prevent excessive amounts of dust. 40. Developer shall prepare a notice, subject to the review by the Director of Planning and Community Development, that lists ail construction mitigation requirements, permitted hours of construction, and identifies a contact person at City Hall as well as the developer who will respond to complaints related to the 15 proposed construction. The notice shall be mailed to property owners and residents of the neighborhood bounded by Stewart Street, Centinela Avenue, Pico Boulevard, and Exposition Boulevard and the Mountain View Mobile Home Park at least five (5) days prior to the start of construction. 41. A sign shall be posted on the property in a manner consistent with the public hearing sign requirements which shall identify the address and phone number of the owner and/or applicant for the purposes of responding to questions and complaints during the construction period. Said sign shall also indicate the hours of permissible construction work. 42. A copy of these conditions shall be posted in an easily visible and accessible location at all times during construction at the project site. The pages shall be laminated or otherwise protected to ensure durability of the copy. 43. No construction-related vehicles may be parked on the street at any time or on the subject site during periods of peak parking demand. All construction-related vehicles must be parked for storage purposes at on oftsite location on a private lot for the duration of demolition and construction. The offsite location shall be approved as part of the Department of Environmental and Public Works review of the construction period mitigation plan and by the Department of City Planning if a Temporary Use Permit is required. Standard Conditions 44. Mechanical equipment shall not be located on the side of any building which is adjacent to a residential building on the adjoining lot, unless otherwise permitted by applicable regulations. Roof locations may be used when the mechanical equipment is installed within asound-rated parapet enclosure. 45. Final approval of any mechanical equipment installation will require a noise test in compliance with SMMC Section 4.12.040. Equipment for the test shall be provided by the owner or contractor and the test shall be conducted by the owner or contractor. A copy of the noise test results on mechanical equipment shall be submitted to the Community Noise. Officer for review to ensure that noise levels do not exceed maximum allowable levels for the applicable noise zone. 46. Final parking lot layout and specifications shall be subject to the review and approval of the Transportation Management Division. 47. Construction period signage shall be subject to the approval of the Architectural Review Board. 16 48. The property owner shall insure any graffiti on the site is promptly removed through compliance with the City's graffiti removal program. PUBLIC WORKS DEPARTMENT (PW) Drainage 49. To mitigate storm water and surface runoff from the project site, an Urban Runoff Mitigation Plan may be required by the Department of Public Works pursuant to Municipal Code Chapter 7.10. Prior to submittal of landscape plans for Architectural Review Board approval, the applicant shall contact Public Works to determine applicable requirements, which include the following: • Non-stormwater runoff, sediment and construction waste from the construction site and parking areas is prohibited from leaving the site; • An sediments or materials which are tracked off-site must be removed the same day they are tracked off-site; • Excavated soil must be located on the site and soil piles should be covered and otherwise protected so that sediments do not go into the street or adjoining properties; • Washing of construction or other vehicles shall be allowed adjacent to a construction site. No runoff from washing vehicles on a construction site shall be allowed to leave the site; • Drainage controls may be required depending on the extent of grading and topography of the site; and • New development is required to reduce projected runoff pollution by at least twenty percent through incorporation of design elements or principles, such as increasing permeable surfaces, diverting or catching runoff via swales, berms, and the like; orientation of drain gutters towards permeable areas; modification of grades; use of retention structures and other methods. 50. Parking areas, equipment degreasing areas, and other facilities generating wastewater with significant oil and grease content are required to pretreat these wastes before discharging to the City sewer or storm drain system. Pretreatment will require that a clarifier or oil/water separator be installed and maintained on site. In cases where settleable solids are present (or expected) in greater amounts than floatable oil and grease, a clarifier unit will be required. In cases where the opposite waste characteristics are present, an oil/water separator with automatic oil draw-off will be required instead. The Public Works Department will set specific requirements. Building permit plans shall show the required installation. 17 Hazardous Materials 51. Prior to the demolition of any existing structure, the applicant shall submit a report from an industrial hygienist to be reviewed and approved as to content and form by the Public Works /Environmental Programs Division. The report shall consist of a hazardous materials survey for the structure proposed for demolition. The report shall include a section on asbestos and in accordance with the South Coast AQMD Rule 1403, the asbestos survey shall be performed by a state Certified Asbestos Consultant (CAC). The report shall include a section on lead, which shall be performed by a state Certified Lead Inspector/Assessor. Additional hazardous materials to be considered by the industrial hygienist shall include: mercury (in thermostats, switches, fluorescent light); polychlorinated biphenyls (PCBs) (including light Ballast), and fuels, pesticides, and batteries. Streets 52. Unless otherwise approved by the Department of Public Works, all sidewalks shall be kept clear and passable during the grading and construction phase of the project. 53. Sidewalks, curbs, gutters, paving and driveways which need replacing or removal as a result of the project as determined by the Department of Public Works shall be reconstructed to the satisfaction of the Department of Public Works. Approval for this work shall be obtained from the Department of Public Works prior to issuance of the building permits. 54. Street and/or alley lighting shall be provided on public rights of way adjacent to the project if and as needed per the specifications and with the approval of the Department of Public Works. Off-site 55. All off site improvements required by the City Engineer shall be installed. Plans and specifications for off site improvements shall be prepared by a registered civil engineer and approved by the City Engineer. Environmental Mitigation 56. To mitigate solid waste impacts, prior to issuance of a Certificate of Occupancy, project owner shall submit a recycling plan to the Department of Public Works for its approval. The recycling plan shall include: 1) List of materials such as white paper, computer paper, metal cans, and glass to be recycled; 18 2) Location of recycling bins; 3) Designated recycling coordinator; 4) Nature and extent of internal and external pick-up service; 5) Pick-up schedule; and 6) Plan to inform tenants/ occupants of service. 57. Ultra-low flow plumbing fixtures are required on all new development and remodeling where plumbing is to be added, including dual flush toilets, 1.0 gallon urinals and low flow shower heads. Construction Period Mitigation 58. A construction period mitigation plan shall be prepared by the .applicant for approval by the Department of Public Works prior to issuance of a building permit. The approved mitigation plan shall be posted on the site for the duration of the project construction and shall be produced upon request. As applicable, this plan shall: 1) Specify the names, addresses, telephone numbers and business license numbers of all contractors and subcontractors as well as the developer and architect; 2) Describe how demolition of any existing structures is to be accomplished; 3) Indicate where any cranes are to be located for erection/construction; 4) Describe how much of the public street, alleyway, or sidewalk is proposed to be used in conjunction with construction; 5) Set forth the extent and nature of any pile-driving operations; 6) Describe the length and number of any tiebacks which must extend under the property of other persons; 7) Specify the nature and extent of any dewatering and its effect on any adjacent buildings; 8) Describe anticipated construction-related truck routes, number of truck trips, hours of hauling and parking location; 9) Specify the nature and extent of any helicopter hauling; 10) State whether any construction activity beyond normally permitted hours is proposed; 11) Describe any proposed construction noise mitigation measures, including measures to limit the duration of idling construction trucks; 12) Describe construction-period security measures including any fencing; lighting, and security personnel; 13) Provide a drainage plan; 14) Provide aconstruction-period parking plan which shall minimize use of public streets for parking; 15) List a designated on-site construction manager; 16) Provide a construction materials recycling plan-which seeks to maximize the reuse/recycling of construction waste; 19 17) Provide a plan regarding use of recycled and low-environmental-impact materials in building construction; and 18) Provide a construction period water runoff control plan. OPEN SPACE MANAGEMENT 59. Street trees shall be maintained, relocated or provided as required in a manner consistent with the City's Community Forest Management Plan 2000, per the specifications of the Public Landscape Division of the Community Maintenance Department and the City's Tree Code (SMMC Chapter 7.40). No street trees shall be removed without the approval of the Public Landscape Division. Condition Monitoring 60. The applicant authorizes reasonable City inspections of the property to ensure compliance with the conditions of approval imposed by the City in approving this project and will bear the reasonable cost of these inspections. 20 EXHIBIT "E" ZONING ORDINANCE [To be provided with City Clerk] 2 EXHIBIT "F" SANTA MONICA SIGN CODE [To be provided with City Clerk] EXHIBIT "G" CONSTRUCTION MITIGATION PLAN Agensys shall develop a construction mitigation plan acceptably to the City that will include, but not be limited to, the following requirements: • The Agensys and its contractors and subcontractors shall ensure that construction equipment is properly muffled according to industry standards or as required by the City's Department of Building and Safety, whichever is the more stringent. • The Agensys and its contractors and subcontractors shall place noise-generating construction equipment and locate construction staging areas away from sensitive uses, where feasible, to the satisfaction of the Department of Building and Safety. • The Agensys and its contractors and subcontractors shall implement noise attenuation measures to the extent feasible, which may include, but are not limited to, noise barriers or noise blankets to the satisfaction of the City's Department of Building and Safety. • All equipment shall be properly tuned and maintained in accordance with manufacturer's specifications. • Electrically powered construction activity shall utilize electricity from power poles rather than temporary diesel power generators and/or gasoline power generators (i.e., air compressors) where feasible. • General contractors shall maintain and operate construction equipment such that exhaust emissions are minimized. For example, engines shallbe turned off while in queues or while loading/unloading. In addition, heavy equipment and petroleum-powered generators shall be turned off when not in use. • Exposed surfaces during site preparation activity shall be kept visibly moist. • Water spray techniques shall be employed during demolition activity to limit fugitive dust. o Construction equipment, fixed or mobile, shall be equipped with properly operating and maintained muffler exhaust systems. • Construction activities shall be scheduled so as to avoid operating several pieces of equipment simultaneously to the extent feasible. • Engine idling from construction equipment such as dozers and haul trucks shall be limited to the extenffeasible. Construction equipment, fixed or mobile, shall be located as far from noise- sensitive uses as practical. • Agensys shall provide a telephone number for local residents to call to submit complaints associated with construction noise. The number shall be posted on the project site and shall be easily viewed from the adjacent public areas. • Agensys shall require all Project construction vehicles, including workers to travel to and from the Project site via Stewart Street from Olympic Boulevard. • The Applicant shall only be permitted to perform construction between the hours 0£8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to 5:00 p.m. Saturday; provided that (a) concrete pours may begin at 7:00 a.m. Monday through Friday and 8:00 a.m. Saturday and may continue until 10:00 p.m. Monday through Saturday, as needed, subject to the conditions and public notice requirements set forth in the Construction Mitigation Plan; and (b) interior construction work which does not generate noise of more than thirty (30) decibels beyond the Property line may also be performed between the hours of 7:00 a.m. to 8:00 a.m. and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. • Agensys shall prepare a detailed traffic control plan to the satisfaction of the Transportation Management Division EXHIBIT "H" EXPO LINE MAP PLAN ~ G soo w no m e i o! F zo q y # 't ~ 'G sso , ~I ; ~ ~ ~ ~ $_ . C • ~ r~ E~ i ~ '4 rre pr wl Iltl Mf .~ F ' ~ % Y ,NJT ~ x~ ~ t ,. ,~ I s __. __ - ; ~ ~_ w_ ~ _ i ~ ~ S } 'I ' loa .:... .. , i y ~ I, ~, ~r~i-[ofu °EFJns q'm' M k ~..w¢u ru ~... = 1 ~ m ~.oao _ ~ rwl ao ss' o src w' w• o mo- wa ~ww(s l;?`II Ia Ea ~h 6 ["s'U;IC~OC~1G ~~'I«U~J ~4~ RT TRACK PROFILE ® ~,r„~~p_ yq o Ex osition Met o Li ne Con tructi n a th rit 5 v ~ ~ ~ y a ® p r s o u o y E%POSITION TRANSIT PADJECT-PHASE 2 ~mr r w a r w:.mwmrr®n 1l ALiMSNAI ~ r "" F L ~ ~ PLAN AND PROFILE o T-oo3 ' n.R>W,m.. • OM)M HARRIS IAC{OM .....m r '''~^'' 5 amiE~ea °' STA 73000 TO STA 78000 art v+ios EXHIBIT "I" PEDESTRIAN PATH 2 PE~ESTfl1AN PATH CccEryssq l~~E WFOF lHFSIEWPq!!~ &(ICWNW BEgGAMOT STATION SC' PEOESTflIAN PATH SANDBLASTED CONCNETE BNEEZEWAY E%POSED AGGREGATE CONCgETE BANDING INTEGgAL COIAR CONCRETE SANDBLASTED CONCRETE LANDSCAPING INTEGRAL COLOq CONCgETE MAIN ENTRY TO AGENSVS (, EXHIBIT I PEDESTRIAN PATH EXHIBIT "J" PUBLIC OPEN SPACE I ` I ~, ~~~.r r. I I ~~~INnnir" ~~ i i iii s ~ .,'. ~ . ~ \ h\ " ~ DRIVEWAY/FlHEIANE j BEBDMtOT ~ STATION ~_ =y ~ / 7 ~~~ .Y C ~ ~ ~ ~ j~_ I ~ MFNUfA6T4A1Np ~ E%POSED AGGgEGa IN~EGNAI COI BANDBLABI 92 interior seats 6o anterior seats y OZr qir ~.,, STEWART POCKET-PAFK rmc wauc cav airv~isrnEeo G v ro iEATING Q EXHIBIT J PUBLIC OPEN SPACE EXHIBIT "K" WIDENED SIDEWALK 4 V~ OLYMPIC ELYO ~ ~ (~ ~.I I; I I I I I i4~.o" (widened by y ``~~ ` ,~ yvidth by the ~ ~ ~~ ~'~ 'f: ~ I ~ I I `{'1 bf parking) (°Nidened by fit'-6" near main pedestrain path) Pn N it m ~, II ~ L L 1 J J 1_ L L 1 1 ~.•^ •~ ' q lV "6'„~'~ ~ OHIYEWAY/FIHEIANE = BENOAlIIOT ~ `;: C STATON ~ ---- - '• . wa3r '4 `` t „ ~i12,-Q„ ti - MANUFACnSNINC '„ `-' ?, - (widened by 4'-6" N a~'R ``along side of a, wilding B) - - - %~ ; .• m a +T-6" Width of existing sidewalk © EXHIBIT K WIDENED SIDEWALK EXHIBIT "L" TDM PROGRAM Exhibit "L" TDM Program Performance Standards Agensys shall ensure that vehicular trip generation patterns meet the following performance monitoring requirements: AVR Requirement Agensys' initial employee average vehicle ridership (AVR) requirement shall be 1.6 until such time that the Expo light rail is operational. The AVR requirement shall increase to 1.75 within one year after the Expo Line commences operations. Agensys shall determine AVR through employee surveys for one consecutive week during the year. For the purposes of determining AVR, employees who telecommute, have compressed work weeks, or travel or from work by foot, bicycle, public transit or outside of the peak commute hours shall be considered to have carpooled. Chapter 9.16 of the SMMC shall govern how the AVR is calculated. TDMPIan Program Elements The specific program elements related to the TDM plan for the Agensys project are as follows: 1. Transportation Information Center. Agensys (or Agensys's successors and assigns) shall provide on-site information for employees and visitors about local public transit services (including bus lines, light rail lines ,bus fare programs, ride share programs, shuttles) and bicycle facilities (including routes, rental and sales locations, on-site bicycle racks and showers for the tenants of the Project). Agensys (or Agensys's successors and assigns) shall also provide walking and biking maps for employees and visitors, which shall include but not be limited to information about convenient local services and restaurants within walking distance of the Project. Agensys (or Agensys's successors and assigns) shall provide information to tenants and employees of the Project site regarding local rental housing agencies. Such transportation information may be provided through a computer terminal with access to the Internet or, via a website. 2. TDM Website Information. Agensys (or Agensys's successors and assigns) and tenants shall be required to make available via a website transportation information such as the items noted in No. 1 above, including links to local transit providers, area walking, bicycling maps, etc., to inform employees and visitors of available alternative transportation modes to access the Project site and travel in the area. 3. Employee Transportation Coordinator. An Employee Transportation Coordinator (ETC) shall be designated for this Project by Agensys (or Agensys's successors and assigns) as required by the City of Santa Monica's Transportation Management Division in accordance with Ordinance 1604 (SMMC Section 9.16). The ETC shall manage all aspects of this TDM program and participate in City-sponsored workshops and information roundtables. An ETC shall participate in the Bergamot Station area TMA (see No. 7 below) following its formation. The ETC shall be responsible for making available information materials on options for alternative transportation modes and opportunities. In addition, transit fare media and day/month passes will be made available through the ETC to employees and visitors during typical business hours. 4. Parking Reconfiguration After Occupancy. Any reconfiguration of the parking spaces and operations in order to facilitate partial unbundling of parking and/or flexibility of use shall be considered a Minor Modification under the Development Agreement and shall be subject to City approval. Pedestrian Wayfinding. Agensys (or Agensys's successors and assigns) shall provide and maintain a pedestrian wayfinding program directing employees and visitors to/from the Project site and public transit, including the bus lines and future nearby light rail station. Such signage shall be subject to review and approval by the City. 6. Preferred Drop-off/Pick-up Loading Zone. As shown on the plans approved by the City, Agensys (or Agensys's successors and assigns) shall designate an on-site preferred drop- off/pick-up loading zone that will provide direct access to the Project site so as to discourage on-street double parking. Parking time limits in this on-site designated zone shall be enforced by Agensys (or Agensys's successors and assigns) to facilitate adequate availability of the loading area. 7. Transportation Demand Management Association. Agensys shall be required to participate in a Transportation Demand Management Association (TMA). As part of the LUCE Update process, the City has identified that a TMA should be established for the Bergamot Station area. TMAs would provide employees, businesses, visitors and residents of an area with resources to increase the amount of trips taken by transit, walking, bicycling, and ridesharing. Agensys (e.g., as represented by the ETC or others) shall attend organizational meetings, provide traffic demand data to the TMA, and make available information to its tenants relative to the services provided by the TMA. Agensys may delegate any of its TDM program requirements to the TMA (i.e., offer the required programs through the TMA instead of directly as part of this TDM program.) Agensys may seek to modify the requirements in this Section subject to the reasonable approval of the Planning Director as a Minor Modification under the following circumstances: a. If the TMA assesses dues or other charges that are not proportional to square footage or number of employees; b. If the TMA charges for services Agensys is already providing; c. If the TMA assesses annual dues over the average fee for TMAs in the Los Angeles region; or d. If the TMA seeks to impose programs that Agensys believes would adversely affect Agensys' TDM program or its ability to achieve the AVR requirements herein. 8. Carpool Program. As shown on the plans approved by the City, Agensys (or Agensys's successors and assigns) shall provide preferential parking within the parking areas for Project employees who commute to work in employer registered carpools and vanpools. Preferential parking spaces are those considered most desirable, e.g., close to the entrance or exit. Agensys shall place signs or markings to designate the spaces reserved for carpools and vanpools. An employee who drives to work with at least one other employee in the Project or adjacent facilities may register as a carpool entitled to preferential parking within the meaning of this provision. 9. Employer Transportation Allowance. Agensys (or Agensys's successors and assigns) shall provide each employee a monthly transportation allowance equivalent to no less than the monthly cost of the Metro EZ Pass. The employee may use the cash allowance to: 1) purchase a monthly transit pass; 2) off-set the costs for parking a vehicle on-site; 3) off-set the costs for equipment related to walking or bicycling to work; or 4) otherwise use at the discretion of the employee. 10. Parking Pricing. Parking pricing shall be market-based and adjusted periodically in an effort to ensure parking availability for employees and visitors during peak parking hours. All employees will be required to pay for parking a vehicle on-site. Employees shall be prohibited from parking in the neighborhood. 11. Convenient Parking for Bicycle Commuters. As shown on the plans approved by the City, Agensys shall provide location(s) within the parking facility or other convenient location within the Project site for secure bicycle parking for employees working at the site and visitors to the site. Bicycle parking shall be provided for a minimum of 25 bicycles, which is equivalent to approximately 12.5% of the total vehicle parking spaces proposed to be provided for the Project. The secure bicycle parking shall be located within the Project site such that long-term and short-term parkers can be accommodated. For purposes of this requirement, bicycle parking may mean bicycle racks, a locked cage, or other secure parking area. Agensys shall not charge for bicycle parking and shall expand such parking as Agensys determines is needed to accommodate demand. 12. On-Site Showers and Lockers. As shown on the parking plans approved by the City, shower and clothing locker facilities shall be provided for on-site employees who bicycle or use another active means, powered by human propulsion, of getting to work. 13. Compressed Work Week Schedule. Agensys shall offer, where feasible, a Compressed Work Week schedule for employees whereby their hours of employment may be scheduled in a manner which reduces trips to/from the worksite during peak hours for the surrounding streets. 14. Flex-Time Schedule. Agensys shall permit, where feasible, employees within the Project to adjust their work hours in order to accommodate public transit schedules, rideshare arrangements, or off-peak hour commuting. 15. Guaranteed Return Trip. Agensys (or Agensys's successors and assigns) shall provide employees within the Project who vanpool or carpool, with a return trip to their point of commute origin at no additional cost to the employee, when a Personal Emergency Situation requires it. 16. Carshare Space. Agensys shall undertake reasonable good faith efforts to retain a carshare provider and shall provide at least one parking space at no cost for a public carshare vehicle. 17. Coordination. Agensys will use reasonable efforts to coordinate ridesharing programs, including vanpooling, among its employees and in coordination with nearby businesses. TDMPIan Monitoring and Mod cations AVR Monltoring Requirement. Agensys shall provide a baseline survey to be filed within 6 months of issuance of a final C of O for the project. Thereafter, the City shall monitor TDM plan performance based on Agensys's annual ETRP. In the event that the applicable AVR requirement is not reached in any annual ETRP, Agensys, shall propose modifications to the TDM program to achieve the AVR requirements by the next ETRP. Such modification shall be subject to approval as a Minor Modification.. The AVR shall be monitored through the annual Periodic Review for the term of this development agreement. 2. Changes to TDM Program. Subject to the reasonable approval by the City's Planning Director, Agensys may from time to time modify this TDM program. EXHIBIT "M" SCULPTURE GARDEN CONCEPT 6 3EAGAMOT STATION SCULPTURE SAMPLES (Typical petlestal tlimension: 4'W x 9'Dx 2'H) Q EXHIBIT M SCULPTURE GARDEN EXHIBIT "N" LOCAL HIRING PROGRAM 1. Job Fair. Agensys shall organize an annual symposium/job fair designed to increase job opportunities in the biotechnology industry for City residents, including at- risk youths and young adults, in the vicinity of the Project site. Agensys shall solicit and consider in good faith reasonable suggestions from interested community groups in connection with the symposium/job fair. Agensys may invite other biotechnology companies to participate. The symposium/job fair shall include (a) any other businesses in the area that are interested in mentoring and providing internship programs for at-risk youths who live in the vicinity of the project site, and (b) a jobs fair to match at residents in the neighborhood to job opportunities in the biotechnology industry. The first symposium/job fair shall be held on or about the first anniversary of the issuance of a certificate of occupancy for the Project and on or about each subsequent anniversary of such issuance thereafter for five years. 2. Local Hiring Policy. Agensys shall implement a local hiring policy ("Local Hiring Policy") for the Project consistent with the following guidelines: A. Purpose. The purpose of the Local Hiring Policy is to facilitate the employment by Agensys and its contractors at the Project oflow-income job applicants and others who reside in the proximity of the Project ("Targeted Job Applicants"). B. Targeted Jobs Applicants. Targeted Jobs Applicants shall be low-income individuals ("Low-Income Individuals") and other City residents. ALow-Income Individual shall mean an individual whose household income is no greater than 80% of the median income for the Los Angeles Metropolitan Statistical Area. Targeted Job Applicants under the Local Hiring Policy have the priority set forth below, subject to the provision of Paragraph 2.E below. First Priority: Low-Income Individuals living within one mile of the Project. Second Priority: Low-Income Individuals living in census tracts throughout the City for which household income is no greater than 80% of the median household income for the Los Angeles Metropolitan Statistical Area. Third Priority: Other City residents. Agensys shall consult with trade unions with apprenticeship and cooperative programs as appropriate to facilitate the hiring and training of apprentices from the local neighborhood. C. Coverage. The Local Hiring Policy shall apply to hiring for all on-site jobs ("On- Site Jobs") by the Agensys and its contractors ("Contractors"). On-Site Jobs shall mean all jobs provided by a Contractor for which at least fifty percent of the work 7 hours occur at the Project, and that arises out of either an employment relationship or an independent contractor relationship. A Contractor shall mean a prime contractor, a subcontractor, or any other business entering into a contract ("Contract") with Agensys. A Contract shall mean a contract or other agreement that is related to the use, maintenance, or operation of the Project and that will result in On-Site Jobs, directly or indirectly, either under the contract or agreement itself or through one or more subcontracts. D. Outreach. In order to inform Targeted Job Applicants of job opportunities, in addition to the jobs fairs Agensys (or, during Project construction, it general contractor) shall advertise job openings in the Santa Monica Daily Press or similar local newspaper. In addition, Agensys shall provide telephonic or email notice of job opportunities to two community based organizations, including one in the Pico neighborhood, to be jointly selected by Agensys and the City. Agensys shall invite the members of such organizations to the jobs fairs. At least thirty days prior to the commencement of construction, Agensys' general contractor shall meet with the head of each organization to discuss the types of construction jobs available at the Project site. E. Hiring. Agensys and, during construction, Agensys' general contractor, shall consider in good faith each Targeted Jobs Applicant in accordance with their respective normal hiring practices. The City acknowledges that Agensys' normal hiring practice is to hire the most qualified candidate for each and every position. Agensys agrees to hire those Targeted Jobs Applicants that Agensys determines, in its sole subjective business judgment, to be the most qualified for the position. F. Term. Agensys shall implement the Local Hiring Policy commencing on the Effective Date until the seventh anniversary of the issuance of a certificate of occupancy for the Project. Reference Ordinance No. 2324 (CCS) and Agreement No. 9284 (ccs).