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Ya City Council Report
Santa Monica
City Council Meeting: November 8, 2011
Agenda Item: 113
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Ordinance Approving the Development Agreement (1317 Seventh Street)
Between the City of Santa Monica, a Municipal Corporation and
Seventh and arizona, LLC, a California Limited Liability Company
Recommended Action
Staff recommends that the City Council adopt the attached ordinance.
Executive Summary
At its meeting on October 25, 2011, the City Council introduced for first reading an
ordinance an ordinance approving the Development Agreement (1317 Seventh Street)
between the City of Santa Monica, a Municipal Corporation, and Sevenandarizona,
LLC, a California Limited Liability Company. The ordinance is now presented to the City
Council for adoption.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved: Forwarded to Council:
M s a Jo outrie Rod Gould
Cit ttorn y City Manager
Recording Requested B,
City of Santa Monica
When Recorded Mail To
City of Santa Monica
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, CA 90401
Attention: Senior Land Use Attorney
Space Above Line For Recorder's Use
No Recording Fee Required
California Government Code Section 27383
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF SANTA MONICA
AND
SEVENTHANDARIZONA, LLC
FOR THE PROPERTY LOCATED AT
1317 SEVENTH STREET
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Revised: November 1. 2011
Table Of Contents
Article 1 DEFINITIONS .................................................................... ..............................3
Article 2 DESCRIPTION OF THE PROJECT .................................. ..............................5
2.1 General Description ........................................... ..............................5
2.2 Principal Components of the Project .................. ..............................5
2.3 No Obligation to Develop ................................... ..............................6
2.4 Vested Rights .................................................... ..............................6
2.5 Uses .................................................................. ..............................8
2.6 Alcoholic Beverage Permits ............................... ..............................9
2.7 Right to Future Subdivision of Property for Purposes
Other Than Establishment of Residential Condominiums ..............12
2.8 Project and Community Benefits ....................... .............................12
2.9 Prohibited Activities in the Public Use Area ...... .............................20
2.10 Design .............................................................. .............................20
Article 3 CONSTRUCTION ............................................................. .............................21
3.1
Construction Mitigation Plan ............................. .............................21
3.2
Construction Hours ........................................... .............................21
3.3
Outside Building Permit Issuance Date ............ .............................21
3.4
Construction Period .......................................... .............................22
3.5
Tiebacks ........................................................... .............................22
3.6
Damage or Destruction ..................................... .............................22
Article 4 PROJECT FEES, EXACTIONS, AND CONDITIONS ....... .............................22
4.1 Fees, Exactions, and Conditions ...................... .............................22
4.2 Conditions on Modifications .............................. .............................23
4.3 Implementation of Conditions of Approval ........ .............................23
Article 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS .............23
5.1 Development Standards for the Property; Existing Regulations ....23
5.2
Permitted Subsequent Code Changes ............. .............................24
5.3
Common Set of Existing Regulations ............... .............................26
5.4
Conflicting Enactments ..................................... .............................26
5.5
Timing of Development ..................................... .............................26
Article 6 ARCHITECTURAL REVIEW BOARD ............................... .............................26
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6.1 Architectural Review Board Approval ............... .............................26
6.2 Concurrent Processing ..................................... .............................26
Article 7 CITY TECHNICAL PERMITS ........................................... .............................27
7.1 Definitions ......................................................... .............................27
7.2 Diligent Action by City ....................................... .............................27
7.3 Conditions for Diligent Action by the City .......... .............................27
7.4 New Technical Requirements ........................... .............................28
7.5 Duration of Technical City Permits .................... .............................28
Article 8 AMENDMENT AND MODIFICATION ............................... .............................29
8.1 Amendment and Modification of Development Agreement ............ 29
Article9 TERM ............................................................................... .:...........................29
9.1 Effective Date ................................................... .............................29
9.2 Term ................................................................. .............................29
Article 10 PERIODIC REVIEW OF COMPLIANCE ........................... .............................29
10.1 City Review ....................................................... .............................29
10.2 Evidence of Good Faith Compliance ................ .............................30
10.3 Information to be Provided to Developer .......... .............................30
10.4 Notice of Breach; Cure Rights .......................... .............................30
10.5 Failure of Periodic Review ................................ .............................30
10.6 Termination of Development Agreement .......... .............................30
10.7 City Cost Recovery ........................................... .............................30
Article 11 DEFAULT., .................................................................................................... 31
11.1
Notice and Cure ................................................ .............................31
11.2
Remedies for Monetary Default ........................ .............................31
11.3
Remedies for Non - Monetary Default ................ .............................32
11.4
Modification or Termination of Agreement by City .........................34
11.5
Cessation of Rights and Obligations ................. .............................34
11.6
Completion of Improvements ............................ .............................35
Article 12 MORTGAGEES ................................................................ .............................35
12.1 Encumbrances on the Property ........................ .............................35
Article 13 TRANSFERS AND ASSIGNMENTS ................................ .............................37
13.1 Transfers and Assignments .............................. .............................37
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13.2 Release Upon Transfer ..................................... .............................37
Article 14 INDEMNITY TO CITY ....................................................... .............................38
14.1 Indemnity ........................................................ ............................... 38
14.2 City's Right to Defense ..................................... .............................38
Article 15 GENERAL PROVISIONS ................................................. .............................38
15.1
Notices .............................................................. .............................38
15.2
Entire Agreement; Conflicts .............................. .............................39
15.3
Binding Effect ................................................... .............................39
15.4
Agreement Not for Benefit of Third Parties ....... .............................40
15.5
No Partnership or Joint Venture ....................... .............................40
15.6
Estoppel Certificates ......................................... .............................40
15.7
Time .................................................................. .............................40
15.8
Excusable Delays ............................................. .............................40
15.9
Governing Law ................................................. .............................41
15.10
Cooperation in Event of Legal Challenge to Agreement ................41
15.11
Attorneys' Fees ................................................. .............................42
15.12
Recordation ...................................................... .............................42
15.13
No Waiver ......................................................... .............................42
15.14
Construction of this Agreement ........................ .............................42
15.15
Other Governmental Approvals ........................ .............................42
15.16
Venue ............................................................... .............................44
15.17
Exhibits ............................................................. .............................44
15.18
Counterpart Signatures ..................................... .............................44
15.19
Certificate of Performance ................................ .............................44
15.20
Interests of Developer ....................................... .............................45
15.21
Operating Memoranda ...................................... .............................45
15.22
Acknowledgments, Agreements and Assurance
on the Part of Developer ................................... .............................45
15.23
Not a Public Dedication .................................... .............................46
15.24
Other Agreements ............................................ .............................46
15.25
Severability and Termination ............................ .............................46
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Exhibit "A ":
Legal Description of Property
Exhibit "B ":
Project Plans
Exhibit "C ":
Permitted Fees and Exactions
Exhibit "D"
Conditions of Approval
Exhibit "E ":
Zoning Ordinance
Exhibit T ":
Santa Monica Sign Code
Exhibit "G:
Construction Mitigation Plan
Exhibit "H ":
Assignment and Assumption Agreement
Exhibit "I"
Local Hiring
1317SeventhDA
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DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement "), dated for reference purposes
2011, is entered into by and between SEVENTHANDARIZONA, LLC, a
California limited liability company (the "Developer "), and the CITY OF SANTA
MONICA, a municipal corporation organized and existing pursuant to the laws of the
State of California and the Charter of the City of Santa Monica (the "City "), with
reference to the following facts:
RECITALS
A. Pursuant to California Government Code Sections 65864 et seq., Chapter
9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No.
2356 (collectively, the "Development Agreement Statutes "), the City is authorized to
enter into binding development agreements with persons or entities having a legal or
equitable interest in real property.for the development of such real property.
B. Developer is the owner of approximately 15,000 square feet of land
located in the City of Santa Monica, State of California, commonly known as 1317
Seventh Street and more particularly, described in Exhibit "A" attached hereto and
incorporated herein by the reference (the "Property "). The Property is improved with a
surface parking lot.
C. The City has included the Property within the Downtown Core land use
designation under the City's recently adopted Land Use and Circulation Element of its
General Plan (the "LUCE "). The Property is located within the C -3 Downtown
Commercial Zoning District under the City's Zoning Ordinance. To aid in the
redevelopment of the Property, the City and Developer desire to allow Developer to
construct a new building with subterranean parking and related improvements.
D. On January 6, 2011, Developer filed an application for an administrative
approval, pursuant to Santa Monica Municipal Code ( "SMMC ") Sections 9.04.20.20.020
and 9.04.20.28.020 ( "AA" or "AA Application "). The AA Application was designated by
the City as Administrative Approval Application No. 11AA -001, The AA Application was
for a mixed -use project that will include neighborhood - serving commercial uses (ground
floor only) and residential rental units and subterranean parking (the " Proiect'). The
Project is more fully described in this Agreement.
E. The Project is consistent with the City's General Plan, including the LUCE.
F. On February 8, 2011, the Santa Monica City Council adopted an
ordinance establishing interim development procedures pending implementation of the
LUCE ( "Initial IZO ") (Ordinance No. 2345 (CCS)). Thirty -one days later, on March 11,
2011, the Initial IZO took effect.
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G. On April 26, 2011, the City Council adopted an emergency ordinance
(Ordinance No. 2356 (CCS)) to extend the Initial IZO with certain modifications to
October 26, 2012 ( "VO ").
H. A dispute arose between Developer and City with respect to the
applicability of the IZO and whether the City could convert Developer's pending AA
Application into a development agreement application.
I. On May 27, 2011, Developer and City entered into a settlement
agreement with respect to the Project ( "Settlement Agreement "). The Settlement
Agreement, inter alia, contemplates Developer filing a draft development agreement for
the Project with the City.
J. Developer timely filed a draft development agreement for the Project with
the City as contemplated in the Settlement Agreement. Adoption and execution of this
Agreement will allow for the issuance of permits for the Project and waiver of
Developer's claims as to the IZO under the Settlement Agreement.
K. Developer has paid all necessary costs and fees associated with the City's
processing of this Agreement.
L. The primary purpose of the Project is to create a pedestrian- oriented,
mixed -use project in the Downtown consistent with the LUCE.
M. The LUCE also contemplates a reduction in the amount of required
parking where it can be demonstrated that the peak parking demand for a project is less
than the Zoning Ordinance parking requirements. LUCE Policy T26.4 encourages
"adjusting parking requirements for projects when it can be demonstrated that a lower
parking demand is appropriate." (LUCE P. 4.0 -73.) The LUCE also states that parking
policies should be utilized to achieve housing affordability, congestion management and
air quality goals. (LUCE Circulation Goal T26, p. 4.0 -73.)
N. In accordance with the LUCE, the parking and traffic engineering firm of
Linscott, Law & Greenspan Engineers ( "LLG ") prepared a parking demand study for
Developer, which has been reviewed by the City. The LLG study demonstrates that due
to the walkability of the Project, shared parking between uses, and the location of the
Project near public transit and bicycle routes, peak parking demand for the Project is 73
spaces. Furthermore, Developer and City anticipate that the Project's Transportation
Demand Management Plan ( "TDM Plan ") will further reduce parking demand.
O. 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.
P. 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 result in the orderly
development of the Project, (2) assure installation of necessary improvements on the
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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.
Q. 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 and project benefits, including without limitation
the following: a comprehensive TDM Plan, ample bicycle storage for residents and
employees, LEED certification, unbundled parking, electric vehicle conduit and
stubouts, a monetary contribution towards the light rail station, providing on -site
affordable Rental Housing, and enhanced Project design consistent with the LUCE.
R. The City Council has found that the provisions of this Development
Agreement are consistent with the relevant provisions of City's General Plan, including
the LUCE.
S. On September 21, 2011, the City's Planning Commission held a duly
noticed public hearing on the Development Agreement. The Planning Commission
recommended that the City Council approve the Development Agreement.
T. On October 25, 2011, the City Council held a duly noticed public hearing
on the Development Agreement and at such hearing the City made the necessary
California Environmental Quality Act ( "CEQA ") findings that the Project qualifies for an
exemption from CEQA pursuant to Public Resources Code Section 21159.24; and
introduced Ordinance No. for first reading, approving this Agreement.
U. On November 8, 2011, the City Council adopted Ordinance No.
NOW THEREFORE, in consideration for the covenants and conditions
hereinafter set forth, the Parties hereby agree as follows:
Article 1
The terms defined below have the meanings in this Agreement as set forth
below, unless the context otherwise requires:
1.1 "Agreement" means this Development Agreement entered into between
the City and Developer as of the Effective Date.
1.2 "ARB" means the City's Architectural Review Board.
1.3 'Building" means a new five -story residential /commercial mixed -use
building with subterranean parking.
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1.4 "City Council' means the City Council of the City of Santa Monica, or its
designee.
1.5 "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 Ministerial Approvals.
1.6 "Effective Date" has the meaning set forth in Section 9.1 below.
1.7 "Floor Area" has the meaning given that term in Section 9.04.02.030.315
of the SMMC, provided however: (a) in accordance with the IZO, no Subterranean
Space shall constitute, or be included in the calculation of, Floor Area, (b) consistent
with Section 9.04.02.030.315(d), no portion of the roof decks shall be counted as Floor
Area; and (c) in accordance with Section 9.04.08.15.060(a)(1) of the SMMC, the Floor
Area devoted to Residential Use shall be discounted by fifty percent (50 %) for purposes
of calculating FAR.
1.8 "Floor Area Ratio" and "FAR" mean the Floor Area of the Project, as
calculated in accordance with Section 1.7 of this Agreement, divided by the area of the
Property.
1.9 "General Plan" or "City General Plan" means the General Plan of the
City of Santa Monica, and all elements thereof including the LUCE, as of the Effective
Date unless otherwise indicated in this Agreement.
1.10 "Including" means "including, but not limited to."
1.11 'Incidental Food Service" has the meaning given that term in Section
9.04.02.030.420 of the SMMC.
1.12 "LEEDO Ratinq System" means the Leadership in Energy and
Environmental Design (LEEDO) Green Building Rating System For New Construction &
Major Renovations, Version 3.0 dated 2009 (LEEDO NC v3 -2009) adopted by the U.S.
Green Building Council, unless Developer chooses in its sole and absolute discretion to
use a subsequent version adopted by the U.S. Green Building Council.
1.13 "Legal Action" shall mean any action in law or equity.
1.14 "Ministerial Approvals" mean any 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.
1.15 "Parties" mean both the City and Developer, and "Party" means either the
City or Developer, as applicable.
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1. 16 "Planning Director" means the Planning Director of the City of Santa
Monica, or his or her designee.
1.17 ''Project Plans" mean the plans for the Project that are attached to this
Agreement as Exhibit "B ".
1.18 "Rental Housing" means dwelling units intended for Residential Use, as
defined in Section 1.19, but which are not available for separate or individual ownership.
The term Rental Housing shall not include short -term rental housing or hotel uses as
defined in SMMC Sections 9.04.02.030.778 and 9.04.02.030.410, respectively.
1.19 "Residential Use" means one or more rooms designed, occupied or
intended for occupancy as primary living quarters in a building or portion thereof.
1.20 "Restaurant" and "Restaurant Use" have the meaning provided in
Section 9.04.02.030.730 of the SMMC.
1.21 "Screening Room" means a room improved with video and audio
equipment and seating (either fixed or movable) for use by the Project's commercial and
residential tenants and their guests, invitees and customers with an occupancy load not
to exceed 49 persons. No Screening Room may be operated as an independent
commercial enterprise.
1.22 "Subterranean Space" means all space in the Project below the ground
floor as shown on the Project Plans attached as Exhibit "B ".
1.23 "Zoning Ordinance" means the City of Santa Monica Comprehensive
Land Use and Zoning Ordinance (Chapter 9.04 of the SMMC), as the same is in effect
on the Effective Date, is set forth in its entirety in Exhibit "E ".
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. If there is a conflict or inconsistency between the text of this
Agreement and the Project Plans, the Project Plans will prevail; provided, however, that
omissions from the Project Plans shall not constitute a conflict or inconsistency with the
text of this Agreement.
2.2 Principal Components of the Project. The Project consists of the
following elements, as well as the other elements delineated in the Project Plans, all of
which are hereby approved by the City subject to the other provisions of this
Agreement:
(a) Demolition of the existing surface parking lot and construction of a
new five -story residential /commercial mixed -use building, including fifty -seven (57)
Rental Housing units on floors two through five, other uses on the ground floor and in
the Subterranean Space as specified in Section 2.5(b), and roof decks for use by the
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occupants of the Rental Housing units and their guests. Of the 57 Rental Housing units,
16 will be singles, 25 will be one - bedroom Rental Housing units, 3 will be one - bedroom
plus den Rental Housing units, and 13 will be two - bedroom units including 6 two -
bedroom affordable Rental Housing units as specified in Sections 2.8.1 and 2.8.2(a);
and
(b) Construction of a new subterranean parking garage beneath the
mixed -use building providing no less than 73 parking spaces (based on a parking
demand study) and up to 83 parking spaces as shown on the Project Plans.
2.3 No Obligation to Develop.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require Developer
to proceed with the construction of the Project or any portion thereof.
(b) The decision to proceed or to forbear or delay in proceeding with
construction of the Project or any portion thereof shall be in Developer's sole discretion.
(c) Failure by Developer to proceed with construction of the Project or
any portion thereof shall not give rise to any liability, claim for damages or cause of
action against Developer, except as may arise pursuant to a nuisance abatement
proceeding under SMMC Chapter 8.96, or any successor legislation.
2.3.2 Failure by Developer to proceed with construction of the Project or
any portion thereof shall not result in any loss or diminution of development rights,
except upon expiration of Developer's vested rights pursuant to this Agreement, or the
termination of this Agreement.
2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary,
Developer shall be required to implement all conditions required under this Agreement
in accordance with Exhibit "D ".
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 Developer shall maintain a
complete copy of the Project Plans, stamped "Approved" by the City, in its offices or at
the Project site. The Project Plans to be maintained by the City and Developer shall be
in a half -size set. Further detailed plans for the construction of the Building and
improvements, including, without limitation, structural plans and working drawings, shall
be prepared by Developer subsequent to the Effective Date based upon the Project
Plans.
2.4.2 Minor Modifications to Project. Developer with the approval of the
Planning Director, may make minor changes to the Project or Project Plans ( "Minor
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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
provisions, purposes and goals of this Agreement; (iii) are not detrimental to the public
health, safety, convenience or general welfare; and (iv) will not significantly and
adversely affect the public benefits associated with the Project.
2.4.3 Modifications Requiring Amendment to this Agreement. Developer
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 modifications to the Project Plans which would conflict with the
following standards:
(a) Any setback of the Project, as depicted on the Project Plans,
is reduced if by such reduction the applicable setback would be less than is permitted in
the applicable zoning district under the Zoning Ordinance as in effect on the date such
modification is applied for.
(b) A reduction in the depth of Zone A on the ground floor, such
that the depth of Zone A no longer complies with the Zoning Ordinance then in effect.
(c) Any change in use not consistent with the permitted uses
defined in Section 2.5 below.
(d) A reduction in the number of Rental Housing units specified
in Section 2.2(a) by more than five (5) units.
(e) Any increase in the number of parking spaces shown on the
Project Plans by more than ten percent (10 %) above the amount provided for in Section
2.2(b); or any decrease in the number of parking spaces below 73 as established by the
parking demand study referenced in Section 2.2(b).
(f) Any variation in the design, massing, and building
configuration, including but not limited to, floor area and building height, that renders
such aspects out of substantial compliance with the Project Plans.
(g) Any change that would materially reduce the Public Benefits.
If a proposed modification does not exceed the Major Modification thresholds
established above, then the proposed modification may be reviewed in accordance with
Section 2.4.2.
2.4.4 City Consent to Modification. If the City's consent is required for a
Minor Modification, 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, and conditions in connection with its approval of a Minor or Major
Modification, subject to any applicable law. Notwithstanding anything to the contrary
herein or in the Existing Regulations, if the Planning Director approves a Minor
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Modification or if the City approves a Major Modification (and the corresponding
amendment to this Agreement for such Major Modification), as the case may be,
Developer shall not be required to obtain any other Discretionary Approvals for such
modification, except for ARB approval, in the case of certain Major Modifications.
2.4.5 Right to Develop. Subject to the provisions of Section 3.3 below,
during the Term (as defined in Section 9.2 below) of this Development Agreement,
Developer 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 Developer 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(b). Except for any required approvals from the ARB pursuant to Section 6.1
of 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 Uses. The City approves the following permitted uses for the Project:
(a) Prior To The Development Of The Proiect. Until commencement
of the Project's construction, the uses of the Property and the building(s) and
structures(s) located thereon may remain and continue to operate without further
approvals.
below:
(b) Permitted Uses. Permitted Uses in the Project are as specified
(1) Above the ground floor: Rental Housing.
(2) As depicted on the Project Plans, the ground floor shall be
divided into two zones: Zone A and Zone B.
(i) In Zone A, Permitted Uses shall be any nonresidential
ground floor uses allowed by the Zoning Ordinance in effect at the time the use is
established; provided, however, that all such uses shall be primarily neighborhood -
serving goods, services, or retail uses not exceeding 15 percent of the total floor area of
the Project. These neighborhood - serving nonresidential uses shall be small -scale
general or specialty establishments primarily serving residents or employees of the
neighborhood, including guests of hotels located in the neighborhood ( "Neighborhood
Serving Uses "); provided that such determination shall be rendered by the City at the
time of issuance of the business license for each such individual use and not thereafter.
Restaurant Uses shall be considered neighborhood - serving goods, services, or retail
uses within the meaning of this Section 2.5(b)(2)(i). Bank branches also shall be
considered neighborhood - serving goods, services, or retail uses within the meaning of
this Section 2.5(b)(2)(i). Rental Housing shall not be a Permitted Use in Zone A unless
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such use is allowed by the Code in effect at the time the use is established.
Notwithstanding the foregoing, artist studios shall be a Permitted Use on the ground
floor within Zone A, provided that within any such artist studios, the area devoted to
living quarters shall not occur within the front 25 feet of the building. If and to the extent
the Project includes artist studios, Developer shall make reasonable efforts to contact
local artists and recognized arts organizations for the purpose of informing them of such
vacancies and the opportunity for artists to occupy such studios.
(ii) In Zone B, Permitted Uses shall be vehicle parking
and Accessory Uses. The term "Accessory Uses" means uses which are determined
by the Planning Director to be necessary and customarily associated with, and
appropriate, incidental, and subordinate to one or more of the Permitted Uses and
which are consistent and not more disturbing or disruptive than the Permitted Uses.
(3) In the Subterranean Space: Vehicle parking and Accessory
Uses.
Except as specifically provided herein, Developer will not be required to obtain any
additional Discretionary Approvals for any of the Permitted Uses. Permitted Uses may
commence in the Project upon issuance of a City business license and without any
discretionary planning approvals for such uses.
(c) Conditionally Permitted Uses. Conditionally Permitted Uses shall
be all nonresidential uses on the ground floor that are identified as conditionally
permitted uses in the Zoning Ordinance in effect at the time the use is sought to be
established; provided, however, that all such uses shall be Neighborhood Serving
Uses. Conditionally Permitted Uses may commence operating at the Project upon
issuance of a Conditional Use Permit ( "CUP ") in accordance with the procedures
established in the Zoning Ordinance and the issuance of a business license; provided
that the combined total of all nonresidential uses shall not exceed 15 percent of the total
floor area of the Project.
(d) Other Uses Subject to Discretionary City Planning
Approvals. In addition to Permitted Uses and Conditionally Permitted Uses, Developer
may seek City discretionary planning approval for ground floor uses that are allowed by
any other City discretionary process as provided in the Zoning Ordinance in effect when
the use is sought to be established; provided, however, that all such uses shall be
Neighborhood Serving Uses. Such use may not commence until the requisite City
discretionary planning approval and a business license are obtained.
2.6 Alcoholic Beverage Permits.
(a) In the event Developer or a business operator proposes a new
business or use dispensing for sale or other consideration, alcoholic beverages,
including beer, wine, malt beverages, and distilled spirits for on -site or off -site
consumption, a Conditional Use Permit shall be required except for Restaurants
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complying with Section 2.6(b). No Conditional Use Permit shall be required for catered
events for which Developer obtains the permits then required for such events.
(b) Restaurants which offer alcoholic beverages including beer or wine
incidental to meal service shall be exempt from the provisions of Section 9.04.10.18 of
the SMMC, provided that the operator of the Restaurant (or Developer, if Developer is
the applicant) agrees in writing to comply with all of the following criteria and conditions:
(1) The primary use of the Restaurant premises shall be for sit -
down meal service to patrons. Alcohol shall not be served to persons except those
intending to purchase meals.
(2) If a counter service area is provided in the Restaurant, a
patron shall not be permitted to sit at the counter unless the patron is ordering a meal in
the same manner as patrons ordering meals at the table seating. The seats located
around the counter service area cannot be used as a waiting area where patrons may
drink before being seated or as a bar where beverages only are served.
(3) Window or other signage visible from the public right -of -way
that advertises the Restaurant's beer or alcohol shall not be permitted.
(4) Customers shall be permitted to order meals at all times and
at all areas of the Restaurant where alcohol is being served. The Restaurant shall serve
food to patrons during all hours the Restaurant is open for customers.
(5) The Restaurant shall maintain a kitchen or food - serving area
in which a variety of food is prepared on the premises.
(6) Take out service from the Restaurant shall be only incidental
to the primary sit -down use.
(7) No alcoholic beverage shall be sold for consumption beyond
the Restaurant premises.
(8) Except for special events, alcohol shall not be served by the
Restaurant in any disposable containers such as disposable plastic or paper cups.
(9) No video or other amusement games shall be permitted in
the Restaurant.
(10) No dancing is permitted at the Restaurant. Live
entertainment may only be permitted in the manner set forth in Section 9.04.02.030.730
of the SMMC.
(11) Any minimum purchase requirement may be satisfied by the
purchase of beverages or food.
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(12) The primary use of any outdoor dining area shall be for
seated meal service. Patrons who are standing in the outdoor seating area shall not be
served.
(13) The Restaurant operation shall at all times be conducted in a
manner not detrimental to surrounding properties by reason of lights, noise, activities or
other actions. The Restaurant operator shall control noisy patrons leaving the
restaurant.
(14) The permitted hours of alcoholic beverage service shall be
nine a.m. to twelve midnight Sunday through Thursday, and nine a.m. to one a.m.
Friday and Saturday with complete closure and all Restaurant employees vacated from
the building by one a.m. Sunday through Thursday, and two a.m. Friday and Saturday.
All alcoholic beverages must be removed from the outdoor dining area no later than
twelve midnight. No after hours operation of the Restaurant is permitted.
(15) No more than thirty -five percent (35 %) of the Restaurant's
total gross revenues per year shall be from alcohol sales. The Restaurant operator shall
maintain records of gross revenue sources which shall be submitted annually to the
City's Planning Division at the beginning of the calendar year and also available to the
City and the California Department of State Alcoholic Beverage Control ( "ABC ") upon
request.
(16) Prior to occupancy of the Restaurant, a Restaurant security
plan shall be submitted to the Chief of Police for review and approval. The plan shall
address both physical and operational security issues.
(17) Prior to occupancy, the Restaurant operator shall submit a
plan for approval by the Planning Director regarding its employee alcohol awareness
training programs and policies. The plan shall outline a mandatory alcohol- awareness
training program for all Restaurant employees having contact with the public and shall
state management's policies addressing alcohol consumption and inebriation. The
program shall require all Restaurant employees having contact with the public to
complete an ABC - sponsored alcohol awareness training program within ninety days of
the effective date of the exemption determination. In the case of new Restaurant
employees, the employee shall attend the alcohol awareness training within ninety days
of hiring. In the event the ABC no longer sponsors an alcohol awareness training
program, all Restaurant employees having contact with the public shall complete an
alternative program approved by the Planning Director. The Restaurant operator shall
provide the City with an annual report regarding compliance with this requirement. The
Restaurant operator shall be subject to any future citywide alcohol awareness training
program affecting similar establishments.
(18) Within thirty days from the date of approval of this
exemption, the Restaurant applicant shall provide a copy of the signed exemption to the
local office of the State ABC.
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(19) Prior to occupancy, the Restaurant operator shall submit a
plan describing the establishment's designated driver program, which shall be offered
by the operator to the establishment's patrons. The plan shall specify how the
Restaurant operator will inform patrons of the program, such as offering on the menu a
free non - alcoholic drink for every party of two or more ordering alcoholic beverages.
2.7 Right to Future Subdivision of Property for Purposes Other Than
Establishment of Residential Condominiums. If the Developer elects to file such an
application, the City agrees to process an application for a parcel map or subdivision
map for the Property to divide the Property into various parcels as may be determined
by Developer, including the right to an air space subdivision that would divide the
commercial space from the residential units and could include establishing commercial
condominiums; provided, however, that Developer shall not seek to process an
application to subdivide the residential units into residential condominiums unless
allowed by the SMMC at the time the change is proposed.
2.8 Project and Community Benefits.
2.8.1 Project Benefits. This Agreement provides assurances that the
public benefits identified below in this Section 2.8.1 will be achieved and developed in
accordance with the terms of this Agreement. The Project will provide public benefits to
the City, including without limitation: (i) a mix of uses, including rental housing and
potential restaurants /cafes, within a new building to be constructed in the Downtown;
(ii) tax revenues; (iii) construction jobs; (iv) developer fees for cultural arts; (v) developer
fees for child care facilities; (vi) installation of standard water and wastewater reduction
fixtures within the Project as legally applicable; (vii) various standard public
improvements and fees; and (viii) On -Site Affordable Housing. Developer shall meet
its affordable housing obligation through the development of on -site units for very-low
income tenants pursuant to the City's Affordable Housing Production Program (Chapter
9.56 of the Existing Regulations).
2.8.2 LUCE Community Benefits. Set forth below in this Section 2.8.2
are the additional community benefits that will be provided by the Project.
(a) On -Site Affordable Housing. Developer has agreed to provide
and shall provide a sixth on -site affordable unit instead of paying a fee equal to 70% of
the City's cost of constructing such a unit.
(b) TDM Plan. Developer shall maintain and implement the
following Transportation Demand Management Plan ( "TDM Plan "):
Measures Applicable to Entire Project (Commercial and Residential
Elements
A. Transportation Information Center. The Developer shall maintain,
for the life of the Project, a Transportation Information Center ( "TIC "). The location of
the TIC shall be mutually agreed upon by the Planning Director and the Developer prior
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to the City's issuance of a certificate of occupancy for the Building, and may be
relocated from time to time thereafter upon mutual agreement of the Developer (or
Developer's successor in interest) and the Planning Director. The TIC shall include
information for employees, visitors and residents about:
• Local public transit services, including current maps, bus
lines, light rail lines, fare information, schedules for public
transit routes serving the Project, telephone numbers and
website links for referrals on transportation information,
including numbers for the regional ridesharing agency and
local transit operators, ridesharing promotional material
supplied by commuter - oriented organizations and shuttles;
and
• Bicycle facilities, including routes, rental and sales locations,
on -site bicycle facilities, bicycle safety information and the
shower facility for the commercial tenants of the Project.
The TIC shall also include a list of facilities available for carpoolers, vanpoolers,
bicyclists, transit riders and pedestrians at the site, including walking maps and
information about local services, restaurants, movie theaters and recreational activities
within walking distance of the Project. Such transportation information shall be provided
on -site, regardless of whether also provided on a website.
B. Parking Pricing. Hourly parking pricing for Project visitors shall be
market -based and adjusted periodically to ensure parking availability during peak
parking hours.
C. Guest Bicycle Parking. Developer shall provide short-term bicycle
parking for 8 bikes for guests of the commercial and residential components. This guest
bike parking shall be located on the ground floor of the Project.
D. Unbundled Parking. Developer shall lease (a) its parking to
residential tenants separately from the residential units and (b) its employee parking to
commercial tenants separately from the commercial space. Such parking shall be
leased at market rates established by Developer from time -to -time. Developer may,
subject to the Planning Director's approval, reconfigure the parking spaces and
operations from time -to -time in order to facilitate unbundling of parking. Developer shall
require in all tenant leases it executes as landlord that each tenant charge its
employees for parking and that all subleases contain this same provision.
E. Marketing. Developer shall periodically promote ridesharing
through newsletters or other communications to tenants, both residential and
commercial. Furthermore, Developer shall hold at least one rideshare event annually
for residential tenants and commercial employees of the Project, which may be provided
in conjunction with the contemplated TMA.
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F. On -Site Transportation Coordinator. Developer shall designate an
on -site Transportation Coordinator to be responsible for implementing, maintaining and
monitoring the TDM Plan. Once at least 50% of the residential units are occupied, the
Transportation Coordinator must be available a minimum of fifteen hours per week.
The Transportation Coordinator's contact information shall be provided to the City and
updated as necessary. The Transportation Coordinator shall be responsible for
promoting the TDM Plan to employees and residents, updating information
boards /websites, offering carpool and vanpool matching services and assisting with
route planning and will be the point of contact for administration of the annual survey
and TDM Plan report required by this Agreement, in addition to any other services the
Transportation Coordinator may perform at the Project for Developer. Transportation
Coordinator services may be provided through the TMA contemplated in Section
2.8.2(b)(II)(B) below.
Measures Applicable to Project's Commercial Component Only
A. AVR Requirements. For employees of the commercial tenants,
Developer shall achieve an average vehicle ridership ( "AVR ") of 1.75 by the third year
after the City's issuance of a certificate of occupancy for the Project and the 1.75 AVR
shall continue to be achieved and maintained thereafter. SMMC Chapter 9.16 shall
govern how the AVR is calculated. Failure to achieve the AVR standard as provided in
this Section will not constitute a Default within the meaning of the Agreement so long as
Developer is working cooperatively with the City and taking all feasible steps to achieve
compliance. The term "feasible" shall have the meaning given that term in Section
21061.1 of the California Public Resources Code.
Developer will determine its AVR through employee surveys for one consecutive week
each calendar year beginning the first year the commercial component is at least 50%
occupied. For purposes of determining AVR, the survey must be conducted and AVR
calculated in accordance with SMMC 9.16.070:
"The survey must be taken over five consecutive days during
which the majority of employees are scheduled to arrive at or
leave the worksite. The days chosen cannot contain a
holiday and cannot occur during 'Rideshare Week' or other
'event' weeks (i.e., Bicycle Week, Walk to Work Week,
Transit Week, etc.). This survey must have a minimum
response rate of seventy -five percent of employees who
report to or leave work between six a.m. and ten a.m.,
inclusive, and seventy -five percent of employees who report
to or leave work between three p.m. and seven p.m.,
inclusive. Employers that achieve a ninety percent or better
survey response rate for the a.m. or p.m. window may count
the 'no- survey responses' as 'other' when calculating their
AVR...
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"The procedure for calculating AVR at a worksite shall be as
follows:
"(A) The AVR calculation shall be based on data
obtained from an employee survey as defined in [SMMC
Section 9.16.070(d)(2)].
"(13) AVR shall be calculated by dividing the number
of employees who report to or leave the worksite by the
number of vehicles arriving at or leaving the worksite during
the peak periods. All employees who report to or leave the
worksite that are not accounted for by the employee survey
shall be calculated as one employee per vehicle arriving at
or leaving the worksite. Employees walking, bicycling,
telecommuting, using public transit, arriving at the worksite in
a zero - emission vehicle, or on their day off under a
recognized compressed work week schedule shall be
counted as employees arriving at or leaving the worksite
without vehicles. Motorcycles shall be counted as vehicles.
"(C) A child or student may be calculated in the
AVR as an additional passenger in the carpool /vanpool if the
child or student travels in the car /van to a worksite or
school /childcare facility for the majority (at least fifty -one
percent) of the total commute.
"(D) If two or more employees from different
employers commute in the same vehicle, each employer
must account for a proportional share of the vehicle
consistent with the number of employees that employer has
in the vehicle.
"(E) Any employee dropped off at a worksite shall
count as arriving in a carpool only if the driver of the carpool
is continuing on to his /her worksite.
"(F) Any employee telecommuting at home, off -site,
or at a telecommuting center for a full work day, eliminating
the trip to work or reducing the total travel distance by at
least fifty -one percent shall be calculated as if the employee
arrived at the worksite in no vehicle.
"(G) Zero emission vehicles (electric vehicles) shall
be calculated as zero vehicles arriving at the worksite."
Furthermore, the definition of AVR contained in SMMC Section 9.16.030, as written on
the Effective Date, shall govern how AVR is calculated. That definition reads as follows:
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"The total number of employees who report to or leave the
worksite or another job - related activity during the peak
periods divided by the number of vehicles driven by these
employees over that five -day period. The AVR calculation
requires that the five -day period must represent the five days
during which the majority of employees are scheduled to .
arrive at the worksite. The hours and days chosen must be
consecutive. The averaging period cannot contain a holiday
and shall represent a normal situation so that a projection of
the average vehicle ridership during the year is obtained."
B. Transportation Demand Management Association. The property
owner and building tenants shall be required to participate in the establishment of a
geographic based Transportation Demand Management Association ( "TMA ") that may
be defined by the City. TMAs provide employees, businesses, and visitors of an area
with resources to increase the amount of trips taken by transit, walking, bicycling and
carpooling. If the City adopts a requirement that a TMA be formed for this geographic
area, Developer shall attend organizational meetings and provide traffic demand data to
the TMA. Developer shall require in all leases it executes as landlord for space within
the Project that building tenants be required to participate in the TMA and that all
subleases contain this same provision. Developer may elect to provide some or all of
the services required by this Section 2.8.2(b) through the TMA.
C. Employee Carpool Program. Developer shall provide preferential
parking within the parking garage for Project employees who carpool to work. The
charge for such parking spaces will be at a reduced rate.
D. Transit Subsidy in Lieu of Parking. Developer shall require in all
tenant leases it executes as landlord that each tenant offer its employees who do not
purchase monthly automobile parking in the Project a month -long Metro EZ Transit
Pass (or equivalent multi- agency monthly transit pass) for at least one month at no cost
and at a 50% discount thereafter, with such passes provided on -site. Developer, or
Developer's successor in interest, shall be responsible for ensuring this obligation is
satisfied.
E. Secure Bicycle Storage. As shown on the Project Plans, Developer
shall provide secure long -term bicycle storage for commercial employees on the upper
level of the subterranean parking garage. This shall have a capacity for a minimum of
two bicycles. For the purpose of this requirement, secure bicycle parking shall mean
bicycle lockers, an attended cage, or a secure parking area. Commercial employee
secure bicycle storage shall be provided separately from the secure bicycle storage for
residents.
F. Employee Shower and Locker Facility. A minimum of two showers
and locker facilities (one for each gender) shall be provided for employees of
commercial uses on site who bicycle or use another active means, powered by human
propulsion, of getting to work or who exercise during the work day.
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G. Employee Flex -Time Schedule. The Developer shall require in all
leases it executes as landlord for space within the Project that, when commercially
feasible, employers shall permit employees within the Project to adjust their work hours
in order to accommodate public transit schedules, rideshare arrangements, or off -peak
hour commuting. Developer shall also require that all subleases contain this same
provision.
H. Employee Guaranteed Return Trip. The Developer shall require in
all leases it executes as landlord for space within the Project that tenants provide
employees who rideshare (this includes transit riders, vanpoolers, walkers, 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. Developer, or Developer's successor
in interest, shall be responsible for ensuring this obligation is satisfied. The employee
guaranteed return trip may be provided through the TMA contemplated in Section
2.8.2(b)(11)(B) above.
III. Measures Applicable to Project's Residential Component Only
A. Transit Welcome Package for Residents. The Developer shall
provide new residents of the residential component of the Project site with a Resident
Transit Welcome Package ( "RTWP'). One RTWP shall be provided to each unit upon
the commencement of a new tenancy. The RTWP will include information about the on-
site bicycle parking and storage facilities, local markets, restaurants, other convenient
services, parks, movie theaters and other nearby recreational facilities. The RTWP will
also inform residents about how to access the Transit Information Center discussed in
Section 2.7(a)(1)(A) above. A copy of the RTWP shall be submitted with the
Developer's annual compliance report required by Section 10.2 of this Agreement.
B. Transit Subsidy in Lieu of Parking. Developer offer its residential
tenants in units for which no one not purchases monthly automobile parking in the
Project a month -long Metro EZ Transit Pass (or equivalent multi- agency monthly transit
pass) for at least one month for that unit at no cost and at a 50% discount thereafter for
that unit for so long as no parking is purchased for such unit, with such passes made
available for purchase on -site. Developer, or Developer's successor in interest, shall be
responsible for ensuring this obligation is satisfied. The number of monthly transit
passes provided or sold each month to Project residents shall be reported in the
Developer's annual compliance report required by Section 10.2 of this Agreement.
C. Secure Bicycle Storage. As shown on the Project Plans, Developer
shall provide convenient and secure bicycle storage in the subterranean parking garage
for Project residents. This shall have a capacity for a minimum of 57 bicycles. For
purposes of this requirement, secure bicycle parking shall mean bicycle lockers, an
attended cage, or a secure room. The location of the residential secure bicycle parking
may not be combined with the commercial secure bicycle parking.
D. Marketing and Outreach to Downtown Employers and Employees.
Developer shall prepare and implement a marketing and outreach plan designed to
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notify Downtown employers and their employees of the Project's residential component
for the purpose of encouraging those that work in the Downtown area to consider
residing in the Project. As residential units become vacant, Developer shall make
reasonable efforts to contact Downtown employers and their employees for the purpose
of informing them of such vacancies and the opportunity to live closer to their places of
employment.
IV. Changes to TDM Plan. Subject to approval by the City's Planning
Director, the Developer may modify this TDM Plan, provided the TDM Plan, as modified,
can be demonstrated as equal or superior in its effectiveness at mitigating the traffic -
generating effects of this Project. Any of the modifications to the TDM proposed by
Developer (or proposed by the Planning Director and agreed to by the Developer) to
help the Project achieve the applicable AVR standard shall be subject to the reasonable
approval by the City's Planning Director as a Minor Modification.
V. New TDM Ordinance. If the City adopts a new ordinance of general
application that updates or replaces Chapter 9.16 of the SMMC and that applies to the
geographic area in which the Property is located ( "New TDM Ordinance'), then, subject
to the Planning Director's approval in his or her sole and absolute discretion, Developer
may elect to comply with the New TDM Ordinance in lieu of complying with the TDM
Plan outlined in this Agreement.
(c) Light Rail Infrastructure Contribution. On or before issuance
of a building permit for the Project, Developer shall make a $50,000 light rail
infrastructure contribution to the City to be specifically used in the Downtown area.
(d) Sustainable Design Features. Developer shall retain the
services of an accredited professional to consult with Developer regarding inclusion of
sustainable design features for the Project. Developer shall design the Project so that,
at a minimum, the Project shall have the number of points that would be commensurate
with achieving LEEDO credits equivalent to a "Silver" certification under the LEEDO
Rating System (the "Sustainable Design Status "). For purposes of clarity, Developer
shall design the Project in a manner that achieves the Sustainable Design Status;
provided, however, that Developer shall not be required to pay to the Green Building
Certification Institute the fees required to obtain a LEEDO certificate.
(1) Developer shall confirm to the City that the design for the
Project has achieved the Sustainable Design Status in accordance with the following
requirements of this Section 2.8.2(d).
(2) Prior to the submission of plans for ARB review
consistent with Article 6 of this Agreement, Developer shall submit a preliminary
checklist of anticipated LEEDO credits (that shall be prepared by the LEEDO accredited
professional) for review by the City of Santa Monica Green Building Program Advisor
( "Advisor "), along with a narrative to demonstrate that the Project is likely to achieve
the Sustainable Design Status.
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(3) As part of Developer's set of plans and documents
submitted to the City with Developer's plan check application for the Project's building
permit, Developer shall also submit the LEEDO Credits identified in clause (2) above
(prepared by the LEEDO accredited professional) for review by the Advisor to
demonstrate that the Project is likely to achieve the Sustainable Design Status.
(4) Prior to issuance of a final Certificate of Occupancy for
the Project, the City's Green Building Program Advisor shall verify and approve (which
approval shall not be unreasonably withheld, conditioned or delayed) that the LEEDO
Credits identified in clause (2) above (prepared by the LEEDO accredited professional)
demonstrate that the Project is likely to achieve the Sustainable Design Status.
Developer shall meet with the Advisor at least 30 days prior to submitting the final
LEEDO Credits for the Advisor's approval, and during such meeting Developer shall
review the LEEDO progress with the Advisor.
(5) Notwithstanding the foregoing, if the Advisor has not yet
approved the LEEDO Credits that demonstrate that the constructed Project has
achieved the Sustainable Design Status, the City shall nonetheless issue a temporary
Certificate of Occupancy for the Project (assuming that the Project is otherwise entitled
to receive a temporary Certificate of Occupancy). The temporary Certificate of
Occupancy shall be converted to a final Certificate of Occupancy once the Advisor
determines that the LEEDO Credits for the Project demonstrate that the constructed
Project has achieved the Sustainable Design Status.
(e) EV Conduit. A minimum number of 208/240 V 40 amp,
grounded AC outlets equal to 10 percent of the total number of parking spaces; or panel
capacity and conduit for future installation of electrical outlets designed to allow the
simultaneous charging of a minimum number of 208/240 V 40amp, grounded AC outlets
equal to 10 percent of the total number of parking spaces, shall be located in the
parking area.
(f) Shared Parking. In furtherance of the LUCE's shared parking
policies:
(1) The Project shall be subject to a shared parking program
whereby commercial visitors and residential guests shall have access to and utilize the
same parking spaces.
(2) Consistent with providing sufficient on -site parking for
building users, the Developer may make any unused on -site parking available for
monthly lease at market rates to third parties in the surrounding area in need of parking.
Prior to making any unused on -site parking available to third parties, Developer shall
obtain a written report by a traffic and parking engineering firm that demonstrates that
the proposed parking spaces to be leased to third parties are not needed to meet the
Project's peak parking demand and shall submit that report to the City for review and
approval by the Planning Director. Alternatively, Developer may seek City approval for
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shared parking in accordance with any City procedure in effect at the time Developer
requests approval for a shared parking arrangement.
(g) Project Design. As a result of this Agreement, there are
enhanced elements of the Project design, including enhanced walkway and courtyard
areas as shown on the Project Plans and other pedestrian- oriented design elements of
the Project. The public use of that certain area designated on the Project Plans as
"Public Use Area" shall be: (i) consistent with the terms and conditions of this
Agreement; (ii) solely for pedestrian access to and passive use of the Public Use Area
by the public; and (iii) compatible with Developer's development, use and enjoyment of
the Project. No use other than pedestrian access to and passive use of the Public Use
Area by the public shall be permitted on the Public Use Area. Between the hours of
10:00 p.m. and 8:00 a.m., Developer may limit public access to the Public Use Area.
(h) Local Hiring. Developer shall implement the local hiring
program set forth in Exhibit "I ".
2.9 Prohibited Activities in the Public Use Area. Nothing in this Agreement
shall give members of the public the right, without the prior written consent of
Developer, which consent may be conditioned or withheld by Developer in Developer's
sole discretion, to engage in any other activity on the Public Use Area, including, without
limitation any of the following: (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; or (vi) engaging in any illegal, dangerous or other activity
that Developer reasonably deems, to be inconsistent with other uses in the Project or
with the use of the Public Use Area by other members of the public for the permitted
purposes, such as excessive noise or boisterous activity, bicycle or skateboard riding
skating or similar activity, being intoxicated, having offensive bodily hygiene, having
shopping carts or other wheeled conveyances (except for wheelchairs and baby
strollers /carriages), and Developer shall retain the right to cause persons engaging in
such conduct to be removed from the Project. If 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. Developer shall be entitled to establish and post rules and
regulations for use of the Public Use Area consistent with the foregoing. Nothing in this
Agreement or in the Project Plans shall be deemed to mean that the Public Use Area is
a public park or is subject to legal requirements applicable to a public park or other
public space. The Public Use Area shall remain the private property of Developer with
members of the public having only a license to occupy and use the Public Use Area in a
manner consistent with this Article 2.
2.10 Design.
(a) Setbacks. Developer shall maintain the setbacks for the Project as
set forth on the Project Plans. In the event that any inconsistencies exist between the
Zoning Ordinance and the setbacks required by this Agreement, then the setbacks
required by this Agreement shall prevail.
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(b) Building Height. The maximum height of the building shall be 50
feet as set forth on the Project Plans. In the event that any inconsistencies exist
between the Zoning Ordinance and the building height allowed by this Agreement, then
the building height allowed by this Agreement shall prevail.
(c) Stepbacks. Developer shall maintain the stepbacks for the Project
as set forth on the Project Plans. In the event that any inconsistencies exist between the
Zoning Ordinance and the stepbacks required by this Agreement, then the stepbacks
established by this Agreement shall prevail.
(d) Permitted Projections. Projections shall be permitted as reflected
on the Project Plans. In the event that any inconsistencies exist between the Zoning
Ordinance and the projections permitted by this Agreement, then the projections
permitted by this Agreement shall prevail.
(e) Signage. The location, size, materials and color of any signage
shall be reviewed by the ARB (or Planning Commission on appeal) in accordance with
the procedures set forth in Section 6.1 of this Agreement. All signs on the Property
shall be subject to Chapter 9.52 of the SMMC (Santa Monica Sign Code) in effect as of
the Effective Date, a copy of which is set forth in its entirety in Exhibit "F ". Directional
signs for vehicles shall be located at approaches to driveways as required by the City's
Strategic Transportation Planning Division.
(f) Balconies. Balconies shall be provided in accordance with the
Project Plans.
Article 3 CONSTRUCTION
3.1 Construction Mitigation Plan. During the construction phase of the
Project, Developer shall comply with the Construction Mitigation Plan attached as
Exhibit "G" hereto.
3.2 Construction Hours. Developer 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 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. Notwithstanding the foregoing, pursuant to SMMC Section 4.12.110(e)
Developer has the right to seek a permit from the City authorizing construction activity
during the times otherwise prohibited by this Section. The Parties acknowledge and
agree that, among other things, afterhours construction permits can be granted for
concrete pours.
3.3 Outside Building Permit Issuance Date. If Developer has not been
issued a building permit for the Project by the "Outside Building Permit Issuance Date"
(defined below), then on the day after the Outside Building Permit Issuance Date,
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without any further action by either Party, this Agreement shall automatically terminate
and be of no further force or effect. For purposes of clarity, if Developer has not been
issued a building permit for the Project by the Outside Building Permit Issuance Date,
the City shall not be required to pursue its remedies under Section 11.4 of this
Agreement, and this Agreement shall, instead, automatically terminate. "Outside
Building Permit Issuance Date" means the date that is the last day of the thirty -sixth
(36 ) full calendar month after the Effective Date; provided that the Outside Building
Permit Issuance Date may be extended in accordance with the remainder of this
paragraph. If the approval by the ARB of the Project design does not occur within four
(4) months of the submittal by Developer to the ARB of the Project design, then the
Outside Building Permit Issuance Date shall be extended one month for each additional
month greater than four that the final ARB approval is delayed. At any time before the
thirty -sixth (36th) full calendar month after the Effective Date, Developer may deliver
written notice to the Planning Director, requesting an extension of the Outside Building
Permit Issuance Date for an additional twelve (12) months. The Planning Director shall
grant such extension if Developer can show reasonable cause why Developer will not
be able to obtain the building permit for the Project by the initial Outside Building Permit
Issuance Date and can demonstrate that: (a) the condition of the Property will not
adversely affect public health or safety and (b) the continued delay will not create any
unreasonable visual or physical detriment to the neighborhood.
3.4 Construction Period. Construction of the Project shall be subject to
the provisions of SMMC section 8.08.070.
3.5 Tiebacks. City will provide Developer with tiebacks, subject to
reasonable terms and conditions, for Seventh Street and Seventh Court. Developer
shall compensate the City for such tiebacks in accordance with the City's tieback fees
then in effect.
3.6 Damage or Destruction. If the Project, or any part thereof, is
damaged or destroyed during the term of this Agreement, Developer shall be entitled to
reconstruct the Project in accordance with this Agreement if: (a) Developer obtains a
building permit for this reconstruction prior to the expiration of this Agreement and (b)
the Project is found to be consistent with the City's General Plan in effect at the time of
obtaining the building permit.
Article 4 PROJECT FEES, EXACTIONS, AND CONDITIONS
4.1 Fees, Exactions, and Conditions. Except as expressly set forth in
Section 2.4.4 (relating to modifications), Section 2.8 (relating to Community Benefits),
and Section 5:2 (relating to Subsequent Code Changes) below, the City shall charge
and impose only those fees, exactions, conditions, and standards of construction set
forth in this Agreement, including Exhibits "C ", "D" and "G" attached hereto, and no
others. If any of the conditions set forth on Exhibit "D" is satisfied by others, Developer
shall be deemed to have satisfied such measures or conditions.
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4.2 Conditions on Modifications. The City may impose fees,
exactions and conditions in connection with its approval of Minor or Major Modifications,
provided that all fees, exactions and conditions shall be in accordance with any
applicable law.
43 Implementation of Conditions of Approval.
4.3.1 Compliance with Conditions of Approval. Developer
shall be responsible to adhere to the conditions of approval set forth in Exhibit "D" in
accordance with the timelines established in Exhibit "D ".
4.3.2 Survival of Conditions of Approval. If Developer
proceeds with the construction of the Project, except as otherwise expressly limited in
this Agreement, the obligations and requirements imposed by the conditions of approval
set forth in the attached Exhibit "D" shall survive the expiration of the Term of this
Agreement and shall remain binding on Developer, its successors and assigns, and
shall continue in effect until released 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) the IZO; (iv) any and all
ordinances, rules, regulations, standards, specifications and official policies of the City
governing, 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 (v) the development
standards and procedures in Section 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
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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 Govern the Project. Except as
provided in Section 5.2, development of the Building 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
Building and improvements, and any exactions therefor, shall be governed by the
Existing Regulations. The City agrees that this Agreement is consistent with the
General Plan, including the LUCE, and as more fully described in the Recitals. 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 matters of architectural review by the ARB as
specified in Section 6.1 and review of modifications to the Project as expressly set forth
in Sections 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 Applicable Subsequent Code Changes. Notwithstanding
the terms of Section 5.1, this Agreement shall not prevent the City from applying to the
Project the following 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 of 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 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 Developer and (iv) fees for monitoring compliance with any
development approvals; 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
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levy, assessment, fee or tax imposed for the purpose of funding public or private
improvements on other property located within the Downtown Core (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 unless adopted to meet health and safety concerns.
(e) Any City regulations to which Developer 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 Developer under this Agreement. For the purposes of this Section
5.2.1(x), regulations which impair Developer'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), (b), and (d) above) or (ii) which would materially delay
development of the Project, or that would cause a material change in the uses of the
Project as provided in this Agreement.
5.2.2 New Rules and Regulations. 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 State or Federal Laws. In the event that 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.
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5.3 Common Set of Existing Regulations. Prior to the Effective Date,
the City and Developer shall use reasonable efforts to identify, assemble and copy three
identical sets of the Existing Regulations, to be retained by the City and Developer, 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. Except as provided in Section 5.2 above,
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. Developer 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 have an interest in, 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. City of 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 the parties' agreement. It
is the intent of Developer 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 or the
number of buildings, structures or residential units that can be built each year on the
Property, except as expressly provided in this Agreement.
Article 6 ARCHITECTURAL REVIEW BOARD
6.1 Architectural Review Board Approval. The Project 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. Consistent with Existing
Regulations, the ARB cannot require modifications to the building design which negates
the fundamental development standards established by this Agreement. For example,
the ARB cannot require reduction in the overall height of the building, reduction in the
number of stories in the building, reduction in density, or reduction in floor area greater
than two percent (2 %). Decisions of the ARB are appealable to the Planning
Commission in accordance with the Existing Regulations.
6.2 Concurrent Processing. Developer may concurrently process plan
check (SMMC § 8.08.060) with ARB design review (SMMC ch. 9.32); provided,
however, that Developer hereby agrees to accept the risk of plan check revisions if
necessitated by the outcome of the ARB design review.
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Article 7 CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
(a) "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 Site Plan and this Agreement.
Technical City Permits include, without limitation (a) building permits, (b) related
mechanical, electrical, plumbing and other technical permits, (c) demolition, excavation
and grading permits, (d) encroachment permits, and (e) temporary and final certificates
of occupancy.
(b) "Technical Permit Applications" means any applications
required to be filed by Developer for any Technical City Permits.
7.2 Diligent Action by City.
(a) Upon satisfaction of the conditions set forth in Section 7.3, the
City shall accept the Technical Permit Applications filed by Developer with the City and
shall diligently proceed to process such Technical Permit Applications to completion.
(b) 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.
7.3 Conditions for Diligent Action by the City.
(a) Acceptance and Processing of Technical Permit
Applications. The obligation of the City to accept and diligently process the Technical
Permit Applications which are filed by Developer, and then issue the Technical City
Permits, is subject to the satisfaction of the following conditions:
(1) Developer shall have completed and filed all Technical
Permit Applications 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;
(2) Developer 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
(3) If required for the particular Technical Permit Application,
Developer shall have obtained the approval of the ARB referred to in Section 6.1 above.
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(b) Issuance of a Technical City Permit. The obligation of the City
to issue a Technical City Permit which is the subject of a Technical Permit Application
filed by Developer is subject to the satisfaction of the following conditions (and only
such conditions and no others):
(1) Developer 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;
(2) Developer 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;
(3) The proposed Building conforms to the development
standards for such Building established in this Agreement. In the event that a proposed
Building is not in conformance with the development standards, Developer shall have
the right to seek any relief from such standards under the procedures then available in
the City; and
(4) The proposed Building conforms to the Administrative and
Technical Construction Codes of the City (Article VIII, Chapter 1 of the SMMC) (the
"Technical Codes ") in effect on the date that the Technical Permit Application is filed.
7.4 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 Developer limited relief from the allowable Building Height
without amending this Agreement if the requested relief is in compliance with the City's
General Plan. Any such approval shall be granted only after the Planning Director's
receipt of a written request for such relief from Developer. Developer 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 Developer to comply with the New Technical Requirements.
7.5 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.
Subject to the terms of the next sentence, the lapse or expiration of a Technical City
Permit shall not preclude or impair Developer from subsequently filing another
Technical Permit Application for the same matter during the Term of this Agreement,
which shall be processed by the City in accordance with the provisions of this Article 7.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains
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building permits for the Project and, at any time after the Outside Construction Start
Date, such building permits expire or are revoked pursuant to the applicable terms of
the SMMC (as the same may be amended from time to time), then Developer may not
subsequently apply for new building permits for the Project without first obtaining the
prior written consent of the Planning Director, which may be granted or withheld in the
Planning Director's sole discretion.
Article 8 AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement.
Subject to the notice and hearing requirements of the applicable Development
Agreement Statutes, this Agreement may be modified or amended from time to time
only with the written consent of Developer and the City or their successors and assigns
in accordance with the provisions of the SMMC and Section 65868 of the California
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.
(a) Term of Agreement. The term of this Agreement shall
commence on the Effective Date and shall continue for ten (10) years thereafter (the
"Term "), unless the Term is otherwise terminated pursuant to Section 11.4, after the
satisfaction of all applicable public hearing and related procedural requirements or
pursuant to Section 3.3.
(b) Termination Certificate. 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.
(c) Effect of Termination. Except as expressly provided herein
(e.g., Section 4.3.2), none of the parties' respective rights and obligations under this
Agreement shall survive the Term
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 Section 10 in order to
determine whether or not Developer is out -of- compliance with any specific term or
provision of this Agreement.
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10.2 Evidence of Good Faith Compliance. At least sixty (60) days prior
to the applicable anniversary date, Developer shall deliver to the City a written report
demonstrating that Developer 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 Developer with the requirements of the Existing
Regulations, except as otherwise modified by this Agreement; and (b) compliance by
Developer 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 Developer of any of its obligations under this
Agreement.
10.3 Information to be Provided to Developer. Prior to any public
hearing concerning the Periodic Review of this Agreement, the City shall deliver to
Developer 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 Developer a Notice of Breach
pursuant to Section 11.1.1 below, the City shall concurrently deliver to Developer 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 Developer has not
demonstrated that it is in good faith compliance with this Agreement, then the City may
issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1.1
below, and Developer 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 11.1.2
and Section 11.1.3, as applicable.
10.5 Failure of Periodic Review. The City's failure to review at least
annually compliance by Developer 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 Developer fails to
timely cure any material item(s) of non - 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 11.4.2 below.
10.7 City Cost Recovery. Following completion of each Periodic Review,
Developer shall reimburse the City for its actual and reasonable costs incurred in
connection with such review.
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Article 11 DEFAULT
11.1 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 Developer, the City shall also
deliver a copy of the Notice of Breach to any Secured Lender of Developer which has
delivered a Request for Notice to the City in accordance with Section 12.
11.1.2 Monetary Breach. In the case of a monetary Breach by
Developer, Developer shall promptly commence to cure the identified Breach and shall
complete the cure of such Breach within thirty (30) business days after receipt by
Developer 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, Developer shall deliver to the City reasonable evidence of the Excusable Delay.
11.1.3 Non - Monetary Breach. In the case of a non - 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 a non - 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.
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 Developer
in the performance of any of its monetary obligations under this Agreement which
remains uncured (a) thirty (30) business days after receipt by Developer 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 Developer 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 Developer, 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
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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. Remedies for Non - Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of
Breach from the other Party regarding a non - 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 Developer, after the expiration of Secured Lender's
Cure Period under Section 12.1 (if a Secured Lender of Developer 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 Specific Performance. The City and Developer
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 the non - defaulting party if the other Party
causes an Event of Non - Monetary Default to occur.
11.3.3 Writ of Mandate. The City and Developer hereby stipulate
that Developer 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 of Non - 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 Damages Relief Against City. It is acknowledged by
Developer 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, and except for the payment of attorneys' fees and court costs, the City
shall not be liable in damages to Developer and Developer covenants on behalf of itself
and its successors in interest not to sue for or claim any damages:
(a) for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any
right or interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
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The City and Developer agree that the provisions of this Section 11.3.4 do not apply for
damages which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or
provided under this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any
dispute, controversy, or issue regarding the application, interpretation, or effect of the
provisions of this Agreement or the application of any City rules, regulations, or official
policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall
be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as
the same may be amended from time to time and shall follow the notice procedures of
Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these
remedies are applied.
113.6 No Damages Against Developer. It is acknowledged by
the City that Developer would not have entered into this Agreement if Developer were to
be liable in damages in connection with any non - monetary default hereunder.
Consequently, and except for the payment of attorneys' fees and court costs, Developer
shall not be liable in damages to the City for any nonmonetary default and the City
covenants on behalf of itself not to sue for or claim any damages:
(a) for any non - monetary default hereunder;
(b) arising out of or connected with any dispute, controversy or
issue regarding; or
(c) the application or interpretation or effect of the provisions of
this Agreement.
The City and Developer agree that the provisions of this Section 11.3.6 do not apply for
damages which:
(a) are for a monetary default; or
(b) do not arise out of or which are not connected with any
dispute, controversy or issue regarding the application, interpretation, or effect of the
provisions of this Agreement to or the application of, any City rules, regulations, or
official policies.
11.3.7 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 Developer may have at law
or equity after the occurrence of any Event of Non - Monetary Default.
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11.4 Modification or Termination of Agreement by City.
11.4.1 Default by Developer. If Developer causes either an Event
of Monetary Default or an Event of Non - Monetary Default, then the City may commence
proceedings to modify or terminate this Agreement pursuant to this Section 11.4.
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 Developer (and to any
Secured Lender of Developer 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 Developer (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 Developer 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 Developer or (ii) if a Secured Lender has
delivered a Request for 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 an Event of Non - Monetary Default has occurred or the Developer has
not been in good faith compliance with this Agreement pursuant to Section 10.1, as
applicable and (ii) further determines that Developer (or the Secured Lender, if
applicable) has not cured (within the applicable cure periods) the acts or omissions that
constitute the basis of the determination under clause (i) above or if those acts or
omissions could not be reasonably remedied prior to the public hearing that Developer
(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 Developer. If the City Council does not terminate this Agreement, but
proposes a modification to this Agreement as a result of the public hearing and
Developer does not (within five (5) days of receipt) execute and deliver to the City the
form of modification of this Agreement submitted to Developer by the City, then the City
Council may elect to terminate this Agreement at any time after the sixth day after
Developer's receipt of such proposed modification.
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
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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, Developer
has performed substantial work and incurred substantial liabilities in good faith reliance
upon a building permit issued by the City, then Developer shall have acquired a vested
right to complete construction of the Building in accordance with the terms of the
building permit and occupy or use each such Building upon completion for the uses
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 Developer (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 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 Developer, meet with Developer 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.
12.1.1 Mortgage Not Rendered Invalid. Except as provided in
Section 12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor
any Event of Monetary Default nor any Event of Non - 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. 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.
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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, specifying the portion of the Property that is
encumbered by the Secured Lender's lien (a "Request for Notice "). If the Request for
Notice has been given, at the same time the City sends to Developer any Notice of
Breach or Hearing Notice under this Agreement, then if such Notice of Breach or
Hearing Notice affects the portion of the Property encumbered by the Secured Lender's
lien, the City shall send to such Secured Lender a copy of each such Notice of Breach
and each such Hearing Notice from the City to Developer. The copy of the Notice of
Breach or the Hearing 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 the applicable Notice of Breach or Hearing
Notice.
(b) After a Secured Lender has received a copy of such Notice of
Default or Hearing Notice, such Secured Lender shall thereafter have a period of time
(in addition to any notice and /or cure period afforded to Developer under this
Agreement) equal to: (a) ten (10) business days in the case of any Event of Monetary
Default and (b) thirty (30) days in the case of any Event of Non - 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 of Non -
Monetary Default; provided that if the cure of the Event of Non - 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 Developer has caused an Event of
Monetary Default or an Event of Non - Monetary Default, then each Secured Lender shall
have the right to remedy such Event of Monetary Default or an Event of Non - 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 Developer's part to be performed hereunder with the same force and effect as
though performed by Developer.
(c) The period of time given to the Secured Lender to cure any Event
of Monetary Default or an Event of Non - Monetary Default by Developer 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 Developer under this Agreement, including, without limitation,
payment of all amounts due, are being duly and promptly performed.
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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 Developer's or the affirmative covenants of
Developer'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. If the Secured Lender takes possession or becomes the owner of any
portion of the Property, then from and after that date, the Secured Lender shall be
obligated to comply with all provisions of this Agreement; provided that the Secured
Lender shall not be responsible to the City for any unpaid monetary obligations of
Developer that accrued prior to the date the Secured Lender became the fee owner of
the Property.
(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 Developer if any curable Event of
Monetary Default or an Event of Non - Monetary Default is not completely cured within
the Secured Lender's Cure Period.
Article 13 TRANSFERS AND ASSIGNMENTS
13.1 Transfers and Assignments.
13.1.1 Not Severable from Ownership Interest in Property. Thi:
Agreement shall not be severable from Developer's interest in the Property and any
transfer of the Property or any portion thereof shall automatically operate to transfer the
benefits and burdens of this Agreement with respect to the transferred Property or
transferred portions, as applicable.
13.1.2 Transfer Rights. Developer may freely sell, transfer,
exchange, hypothecate, encumber or otherwise dispose of its interest in the Property,
without the consent of the City. Developer shall, however, give written notice to the
City, in accordance with Section 15.1, of any transfer of the Property, disclosing in such
notice (a) the identity of the transferee of the Property (the "Property Transferee ") and
(b) the address of the Property Transferee as applicable.
13.2 Release Upon Transfer. Upon the sale, transfer, exchange or
hypothecation of the rights and interests of Developer to the Property, Developer 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) Developer 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 Developer under this Agreement with respect to the
Property in the form of Exhibit "H" attached hereto (the "Assumption Agreement ").
Upon such transfer of the Property and the express assumption of Developer'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
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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 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. Developer 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 Developer or those of its officers, board
members, agents, employees, volunteers, contractors, subcontractors or other persons
acting on its behalf (collectively referred to as the "Developer Parties ") which occurs
during the Term and relates to this Agreement; (2) for any act or omission related to the
operations of Developer Parties, including but not limited to the maintenance and
operation of areas on the Property accessible to the public. Developer's obligation to
defend, indemnify and hold harmless applies to all actions and omissions of Developer
Parties 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 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 approve
legal counsel retained by Developer to defend any claim, action or proceeding which
Developer 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 Developer in defense of any such action, or if
the City is reasonably dissatisfied with legal counsel retained by Developer, the City
shall have the right (a) at Developer's costs and expense, to have the City Attorney
undertake and continue the City's defense, or (b) with Developer'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 Developer, as applicable, by (i) personal service, or (ii) express mail, Federal
Express, or other similar overnight mail or courier service, regularly providing proof of
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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 City: City of Santa Monica
1685 Main Street, Room 204
Santa Monica, California 90401
Attention: City Manager
With a Copy to: City of Santa Monica
1685 Main Street, Room 212
Santa Monica, California 90401
Attn: Planning and Community Development Director
To Developer: Seventhandarizona, LLC
4077 W. Third Street, Suite 100
Los Angeles, CA 90020
Attn: Michael Sorochinsky
With a Copy to: Harding Larmore Kutcher & Kozal, LLP
1250 Sixth Street, Suite 200
Santa Monica, California 90401
Attention: Christopher M. Harding, Esq.
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.
15.3 Binding Effect. 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 Party 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 interest, whether or not any reference to this Agreement is
contained in the instrument by which such person acquired an interest in the Project.
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15.4 Agreement Not for Benefit of Third Parties. This Agreement is
made and entered into for the sole protection and benefit of Developer 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 Developer or to
render either Party liable in any manner for the debts or obligations of the other.
15.6 Estoppel Certificates. Either Party may, at any time, and from time
to time, deliver written notice to the other Party requesting such Party to certify in writing
(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 of Non - 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 Developer 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.
15.8 Excusable Delays.
15.8.1 In addition to any specific provisions of this Agreement, non-
performance by Developer 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
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or condition beyond the reasonable control of Developer (collectively, "Excusable
Delays ") for any of the following reasons:
(a) War, insurrection, walk -outs, riots, acts of terrorism, 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 Developer, 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 or
approval Developer 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 Developer to
secure financing be an Excusable Delay to the obligations of Developer.
15.8.3 In order for an extension of time to be granted for any
Excusable Delay, Developer must deliver to the City written notice of the
commencement of the Excusable Delay within sixty (60) days after the date on which
Developer 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.
15.8.4 Nothing contained in this Section 15.8 is intended to modify the
terms of either Section 5.1.2 or Section 5.5 of this Agreement.
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, enforceability or any term or provision of this Agreement, then Developer 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
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Developer. The City shall cooperate with Developer in any such defense as Developer
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 Developer 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. 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 Developer.
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. Developer 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 Developer 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
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acknowledgment or affidavit, if required, any and all documents and writings, which may
be necessary or proper to achieve the purposes and objectives of this Agreement.
15.15.2 Processing. Upon satisfactory completion by
Developer 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 Developer 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 Processing During Third Party Litigation. If any
third party lawsuit is filed against the City or Developer 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 the 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.
Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8(c),
after service on the City or Developer of the initial petition or complaint challenging this
Agreement or the Project, the Developer may apply to the Planning Director for a tolling
of the applicable deadlines for Developer to otherwise comply with this Agreement.
Within 40 days after receiving such an application, the Planning Director shall either toll
the time period for up to five years during the pendency of the litigation or deny the
requested tolling.
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.
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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.
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 Property
Exhibit "B ": Project Plans
Exhibit "C ": Permitted Fees and Exactions
Exhibit "D" Conditions of Approval
Exhibit "E ": Zoning Ordinance
Exhibit "F ": Santa Monica Sign Code
Exhibit "G ": Construction Mitigation Plan
Exhibit "H": Assignment and Assumption Agreement
Exhibit "I ": Local Hiring
Except as to the Project Plans (attached hereto as Exhibit B) which shall be treated in
accordance with Section 2.1 above, the text of this Agreement shall prevail in the event
that any inconsistencies exist between the Exhibits and the text of this Agreement.
15.18 Counterpart Signatures. The Parties may execute this Agreement
on separate signature pages which, when attached hereto, shall constitute one
complete Agreement.
15.19 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 Developer, upon Developer's request, with a
statement ( "Certificate of Performance ") evidencing said completion, termination or
revocation and the release of Developer 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 Developer 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.
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15.20 Interests of Developer. Developer represents to the City that, as of
the Effective Date, it is the owner of the entire Property, subject to encumbrances,
easements, covenants, conditions, restrictions, and other matters of record.
15.21 Operating Memoranda. The provisions of this Agreement require a
close degree of cooperation between the City and Developer. During the Term of this
Agreement, clarifications to this Agreement and the Existing Regulations may be
appropriate with respect to the details of performance of the City and Developer. If and
when, from time to time, during the term of this Agreement, the City and Developer
agree that such clarifications are necessary or appropriate, they shall effectuate such
clarification through operating memoranda approved in writing by the City and
Developer, 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
future written approval by the City and Developer. 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, Developer, 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.
15.22 Acknowledgments. Agreements and Assurance on the Part of
Developer.
15.22.1 Developer's Faithful Performance. The Parties
acknowledge and agree that Developer'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 Developer'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. Developer 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 Developer on the
Property.
15.22.2 Obligations to be Non - Recourse. As a material
element of this Agreement, and in partial consideration for Developer's execution of this
Agreement, the Parties each understand and agree that the City's remedies for breach
of the obligations of Developer under this Agreement shall be limited as described in
Sections 11.2 through 11.4 above.
45
1317SeventhD
Revised: November 1. 2011
15.23 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. Developer shall have the right to prevent or prohibit the use
of the Property, or the Project, or any portion thereof, including common areas and
building 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.
15.24 Other Agreements. The City acknowledges that certain additional
agreements may be necessary to effectuate the intent of this Agreement and facilitate
development of the Project. The City Manager or his /her designee is hereby authorized
to prepare, execute and record those additional agreements.
15.25 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.
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.
DEVELOPER:
SEVENTHANDARIZONA, LLC
a limited liability company
By:
Name: Michael Sorochinsky
Title: Manager
46
1317SeventhD
Revised: November 1, 2011
CITY:
CITY OF SANTA MONICA,
a Municipal Corporation
0
ATTEST:
0
MARIA M. STEWART
City Clerk
APPROVED AS TO FORM:
M
MARSHA JONES MOUTRIE
City Attorney
Cfl
1317SeventhD
Revised: November 1, 2011
Rod Gould
City Manager
Exhibit "A"
Legal Description Of Property
PARCEL1:
LOT "U" IN BLOCK 142 OF TOWN OF SANTA MONICA, IN THE CITY OF SANTA
MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 3 PAGES 80 AND 81 AND IN BOOK 39 PAGE 45 ET SEQ., OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
LOT "V" IN BLOCK 142 OF TOWN OF SANTA MONICA, IN THE CITY OF SANTA
MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 3 PAGES 80 AND 81 AND IN BOOK 39 PAGE 45 ET SEQ., OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Exhibit "B"
Project Plans
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ABBREVIATIONS
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1
EXHIBIT "C"
PERMITTED FEES AND EXACTIONS
Developer shall pay the following fees and charges that are within the
City's jurisdiction and at the rate in effect at the time payments are made:
(a) Upon submittal for Architectural Review Board (ARB) review,
Developer shall pay City fees for processing of ARB applications;
(b) Upon submittal for plan check, Developer shall pay City plan check
fees;
(c) Prior to issuance of construction permits, Developer shall pay the
following City fees and all other standard fees imposed on similar
development projects:
• Building, Plumbing, Mechanical, Electrical, Grading, Seismic
Mapping, Excavation and Shoring Permit fees (collected by
Building & Safety)
• Shoring Tieback fee (collected by EPWM)
• Park and Recreation Facilities Tax (SMMC Section 6.80).
Developer shall pay a fee of $200.00 per residential unit, due and
payable at the time of issuance of a building permit for the
construction or placement of residential units on the subject lot.
• 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). Developer shall
execute a'contract to pay the fee prior to issuance of a building
permit. Developer shall pay the fee prior to the issuance of a final
certificate of occupancy for the Project.
1
• Cultural Arts Fee (SMMC Section 9.04.10.20). Developer shall
execute a contract to pay the fee prior to issuance of a building
permit. Developer shall pay the fee prior to the issuance of a final
certificate of occupancy for the Project.
(d) Upon inspection of the Project during the course of construction,
City inspection fees.
These fees shall be reimbursed to developer in accordance with the City's
standard practice should Developer not proceed with development of the
Project.
2. Prior to issuance of permits for any construction work in the public right -of-
way, or use of public property, Developer 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. Developer shall reimburse the City for its ongoing actual costs to monitor
the project's compliance with this Development Agreement. The City shall
bill Developer for staff time and any material used pursuant to the hourly
fees in effect at the time monitoring is performed. Developer shall submit
payment to the City within 30 days.
2
EXHIBIT "D"
CONDITIONS OF APPROVAL
Project Specific Conditions
1. On -Site Affordable Housing. Developer shall meet its affordable
housing obligation through the development of on -site units for very-low
income tenants pursuant to the City's Affordable Housing Production
Program (SMMC Chapter 9.56).
2. TDM Plan. Developer shall maintain and implement the following
Transportation Demand Management Plan ( "TDM Plan "):
I. Measures Applicable to Entire Project (Commercial and Residential
Elements
A. Transportation Information Center. The Developer shall
maintain, for the life of the Project, a Transportation
Information Center ( "TIC "). The location of the TIC shall be
mutually agreed upon by the Planning Director and the
Developer prior to the City's issuance of a certificate of
occupancy for the Building, and may be relocated from time
to time thereafter upon mutual agreement of the Developer
(or Developer's successor in interest) and the Planning
Director. The TIC shall include information for employees,
visitors and residents about:
• Local public transit services, including current maps,
bus lines, light rail lines, fare information, schedules
for public transit routes serving the Project, telephone
numbers and website links for referrals on
transportation information, including numbers for the
regional ridesharing agency and local transit
operators, ridesharing promotional material supplied
by commuter - oriented organizations and shuttles; and
• Bicycle facilities, including routes, rental and sales
locations, on -site bicycle facilities, bicycle safety
information and the shower facility for the commercial
tenants of the Project.
The TIC shall also include a list of facilities available for
carpoolers, . vanpoolers, bicyclists, transit riders and
pedestrians at the site, including walking maps and
information about local services, restaurants, movie theaters
and recreational activities within walking distance of the
1
Project. Such transportation information shall be provided
on -site, regardless of whether also provided on a website.
B. Parking Pricing. Hourly parking pricing for Project visitors
shall be market -based and adjusted periodically to ensure
parking availability during peak parking hours.
C. Guest Bicycle Parking. Developer shall provide short -term
bicycle parking for 8 bikes for guests of the commercial and
residential components. This guest bike parking shall be
located on the ground floor of the Project.
D. Unbundled Parking. Developer shall lease (a) its parking to
residential tenants separately from the residential units and
(b) its employee parking to commercial tenants separately
from the commercial space. Such parking shall be leased at
market rates established by Developer from time -to -time.
Developer may, subject to the Planning Director's approval,
reconfigure the parking spaces and operations from time -to-
time in order to facilitate unbundling of parking. Developer
shall require in all tenant leases it executes as landlord that
each tenant charge its employees for parking and that all
subleases contain this same provision.
E. Marketing. Developer shall periodically promote ridesharing
through newsletters or other communications to tenants,
both residential and commercial. Furthermore, Developer
shall hold at least one rideshare event annually for
residential tenants and commercial employees of the
Project, which may be provided in conjunction with the
contemplated TMA.
F. On -Site Transportation Coordinator. Developer shall
designate an on -site Transportation Coordinator to be
responsible for implementing, maintaining and monitoring
the TDM Plan. Once at least 50% of the residential units are
occupied, the Transportation Coordinator must be at the
Project a minimum of fifteen hours per week. The
Transportation Coordinator's contact information shall be
provided to the City and updated as necessary. The
Transportation Coordinator shall be responsible for
promoting the TDM Plan to employees and residents,
updating information boards /websites, offering carpool and
vanpool matching services and assisting with route planning
and wily be the point of contact for administration of the
annual survey and TDM Plan report required by this
Agreement, in addition to any other services the
Transportation Coordinator may perform at the Project for
Developer. Transportation Coordinator services may be
provided through the TMA contemplated in Section
2.8.2(b)(II)(B) below.
II. Measures Applicable to Project's Commercial Component Only
A. AVR Requirements. For employees of the commercial
tenants, Developer shall achieve an average vehicle
ridership ( "AVR ") of 1.75 by the third year after the City's
issuance of a certificate of occupancy for the Project and the
1.75 AVR shall continue to be achieved and maintained
thereafter. SMMC Chapter 9.16 shall govern how the AVR
is calculated. Failure to achieve the AVR standard as
provided in this Section will not constitute a Default within
the meaning of the Agreement so long as Developer is
working cooperatively with the City and taking all feasible
steps to achieve compliance. The term "feasible" shall have
the meaning given that term in Section 21061.1 of the
California Public Resources Code.
Developer will determine its AVR through employee surveys
for one consecutive week each calendar year beginning the
first year the commercial component is at least 50%
occupied. For purposes of determining AVR, the survey
must be conducted and AVR calculated in accordance with
SMMC 9.16.070:
"The survey must be taken over five
consecutive days during which the majority of
employees are scheduled to arrive at or leave
the worksite. The days chosen cannot contain
a holiday and cannot occur during 'Rideshare
Week' or other 'event' weeks (i.e., Bicycle
Week, Walk to Work Week, Transit Week,
etc.). This survey must have a minimum
response rate of seventy -five percent of
employees who report to or leave work
between six a.m. and ten a.m., inclusive, and
seventy -five percent of employees who report
to or leave work between three p.m. and seven
p.m., inclusive. Employers that achieve a
ninety percent or better survey response rate
for the a.m. or p.m. window may count the 'no-
survey responses' as 'other' when calculating
their AVR ...
3
`The procedure for calculating AVR at a
worksite shall be as follows:
"(A) The AVR calculation shall be
based on data obtained from an employee
survey as defined in [SMMC Section
9.16.070(d)(2)].
"(B) AVR shall be calculated by
dividing the number of employees who report
to or leave the worksite by the number of
vehicles arriving at or leaving the worksite
during the peak periods. All employees who
report to or leave the worksite that are not
accounted for by the employee survey shall be
calculated as one employee per vehicle
arriving at or leaving the worksite. Employees
walking, bicycling, telecommuting, using public
transit, arriving at the worksite in a zero -
emission vehicle, or on their day off under a
recognized compressed work week schedule
shall be counted as employees arriving at or
leaving the worksite without vehicles.
Motorcycles shall be counted as vehicles.
"(C) A child or student may be
calculated in the AVR as an additional
passenger in the carpool /vanpool if the child or
student travels in the car /van to a worksite or
school /childcare facility for the majority (at least
fifty -one percent) of the total commute.
"(D) If two or more employees from
different employers commute in the same
vehicle, each employer must account for a
proportional share of the vehicle consistent
with the number of employees that employer
has in the vehicle.
"(E) Any employee dropped off at a
worksite shall count as arriving in a carpool
only if the driver of the carpool is continuing on
to his /her worksite.
11
"(F) Any employee telecommuting at
home, off -site, or at a telecommuting center for
a full work day, eliminating the trip to work or
reducing the total travel distance by at least
fifty -one percent shall be calculated as if the
employee arrived at the worksite in no vehicle.
"(G) Zero emission vehicles (electric
vehicles) shall be calculated as zero vehicles
arriving at the worksite."
Furthermore, the definition of AVR contained in SMMC
Section 9.16.030, as written on the Effective Date, shall
govern how AVR is calculated. That definition reads as
follows:
"The total number of employees who report to
or leave the worksite or another job - related
activity during the peak periods divided by the
number of vehicles driven by these employees
over that five -day period. The AVR calculation
requires that the five -day period must
represent the five days during which the
majority of employees are scheduled to arrive
at the worksite. The hours and days chosen
must be consecutive. The averaging period
cannot contain a holiday and shall represent a
normal situation so that a projection of the
average vehicle ridership during the year is
obtained."
B. Transportation Demand Management Association. The
property owner and building tenants shall be required to
participate in the establishment of a geographic based
Transportation Demand Management Association ( "TMA ")
that may be defined by the City. TMAs provide employees,
businesses, and visitors of an area with resources to
increase the amount of trips taken by transit, walking,
bicycling and carpooling. If the City adopts a requirement
that a TMA be formed for this geographic area, Developer
shall attend organizational meetings and provide traffic
demand data to the TMA. Developer shall require in all
leases it executes as landlord for space within the Project
that building tenants be required to participate in the TMA
and that all subleases contain this same provision.
Developer may elect to provide some or all of the services
required by this Section 2.8.2(b) through the TMA.
5
C. Employee Carpool Program. Developer shall provide
preferential parking within the parking garage for Project
employees who carpool to work. The charge for such
parking spaces will be at a reduced rate.
D. Transit Subsidy in Lieu of Parking. Developer shall require
in all tenant leases it executes as landlord that each tenant
offer its employees who do not purchase monthly automobile
parking in the Project a month -long Metro EZ Transit Pass
(or equivalent multi- agency monthly transit pass) for at least
one month at no cost and at a 50% discount thereafter, with
such passes provided on -site. Developer, or Developer's
successor in interest, shall be responsible for ensuring this
obligation is satisfied.
E. Secure Bicycle Storage. As shown on the Project Plans,
Developer shall provide secure long -term bicycle storage for
commercial employees on the upper level of the
subterranean parking garage. This shall have a capacity for
a minimum of two bicycles. For the purpose of this
requirement, secure bicycle parking shall mean bicycle
lockers, an attended cage, or a secure parking area.
Commercial employee secure bicycle storage shall be
provided separately from the secure bicycle storage for
residents and shall be located as conveniently as possible,
preferably near the elevator.
F. Employee Shower and Locker Facility. A minimum of one
unisex shower and locker facility shall be provided for
employees of commercial uses on site who bicycle or use
another active means, powered by human propulsion, of
getting to work or who exercise during the work day.
G. Employee Flex -Time Schedule. The Developer shall require
in all leases it executes as landlord for space within the
Project that, when commercially feasible, employers shall
permit employees within the Project to adjust their work
hours in order to accommodate public transit schedules,
rideshare arrangements, or off -peak hour commuting.
Developer shall also require that all subleases contain this
same provision.
H. Employee Guaranteed Return Trip. The Developer shall
require in all leases it executes as landlord for space within
the Project that tenants provide employees who rideshare
(this includes transit riders, vanpoolers, walkers, carpool),
with a return trip to their point of commute origin at no
0
additional cost to the employee, when a personal emergency
situation requires it. Developer, or Developer's successor in
interest, shall be responsible for ensuring this obligation is
satisfied.
III. Measures Applicable to Project's Residential Component Only
A. Transit Welcome Package for Residents. The Developer
shall provide new residents of the residential component of
the Project site with a Resident Transit Welcome Package
( "RTWP "). One RTWP shall be provided to each unit upon
the commencement of a new tenancy. The RTWP will
include information about the on -site bicycle parking and
storage facilities, local markets, restaurants, other
convenient services, parks, movie theaters and other nearby
recreational facilities. The RTWP will also inform residents
about how to access the Transit Information Center
discussed in Section 2.7(a)(1)(A) above. A copy of the
RTWP shall be submitted with the Developer's annual
compliance report required by Section 10.2 of this
Agreement.
B. Transit Subsidy in Lieu of Parking. Developer offer its
residential tenants in units for which no one not purchases
monthly automobile parking in the Project a month -long
Metro EZ Transit Pass (or equivalent multi- agency monthly
transit pass) for at least one month for that unit at no cost
and at a 50% discount thereafter for that unit for so long as
no parking is purchased for such unit, with such passes
made available for purchase on -site. Developer, or
Developer's successor in interest, shall be responsible for
ensuring this obligation is satisfied. The number of monthly
transit passes provided or sold each month to Project
residents shall be reported in the Developer's annual
compliance report required by Section 10.2 of this
Agreement.
C. Secure Bicycle Storage. As shown on the Project Plans,
Developer shall provide convenient and secure bicycle
storage in the subterranean parking garage for Project
residents. This shall have a capacity for a minimum of 57
bicycles. For the purpose of this requirement, secure bicycle
parking shall mean bicycle lockers, an attended cage, or a
secure parking area. The location of the residential secure
bicycle parking may not be combined with the commercial
secure bicycle parking and shall be located as conveniently
as possible, preferably near the elevator.
7
D. Marketing and Outreach to Downtown Employers and
Employees. Developer shall prepare and implement a
marketing and outreach plan, on an ongoing basis, designed
to notify Downtown employers and their employees of the
Project's residential component for the purpose of
encouraging those that work in the Downtown area to
consider residing in the Project.
IV. Changes to TDM Plan. Subject to approval by the City's Planning
Director, the Developer may modify this TDM Plan, provided the
TDM Plan, as modified, can be demonstrated as equal or superior
in its effectiveness at mitigating the traffic - generating effects of this
Project. If, during any annual evaluation of the Project's employee
trip reduction plan occurring at least three years after the Project's
certificate of occupancy, the proposed AVR is not obtained by the
Project, then Developer shall propose modifications to the TDM
Plan that Developer considers likely to achieve the proposed AVR
by the date of the next annual evaluation of the Project's employee
trip reduction plan. In addition, the City's Planning Director may
recommend feasible modifications to the TDM Plan. Any of the
modifications to the TDM proposed by Developer (or proposed by
the Planning Director and agreed to by the Developer) to help the
Project achieve the applicable AVR standard shall be subject to the
reasonable approval by the City's Planning Director as a Minor
Modification.
V. New TDM Ordinance. If the City adopts a new ordinance of
general application that updates or replaces Chapter 9.16 of the
SMMC and that applies to the geographic area in which the
Property is located, then, subject to the Planning Director's
approval in his or her sole and absolute discretion, Developer may
elect to comply with the New TDM Ordinance in lieu of complying
with the TDM Plan outlined in this Agreement.
3. Light Rail Infrastructure Contribution. On or before issuance of a
building permit for the Project, Developer shall make a $50,000 light rail
infrastructure contribution to the City to be specifically used in the
Downtown area.
4. Sustainable Design Features. Developer shall retain the services of an
accredited professional to consult with Developer regarding inclusion of
sustainable design features for the Project. Developer shall design the
Project so that, at a minimum, the Project shall have the number of points
that would be commensurate with achieving LEEDO credits equivalent to
a "Silver" certification under the LEEDO Rating System (the "Sustainable
Design Status "). For purposes of clarity, Developer shall design the
Project in a manner that achieves the Sustainable Design Status;
E
provided, however, that Developer shall not be required to pay to the
Green Building Certification Institute the fees required to obtain a LEEDO
certificate.
(1) Developer shall confirm to the City that the design for the
Project has achieved the Sustainable Design Status in
accordance with the following requirements of this Section
2.8.2(d).
(2) Prior to the submission of plans for ARB review consistent
with Article 6 of this Agreement, Developer shall submit a
preliminary checklist of anticipated LEEDO credits (that shall
be prepared by the LEEDO accredited professional) for
review by the City of Santa Monica Green Building Program
Advisor ( "Advisor "), along with a narrative to demonstrate
that the Project is likely to achieve the Sustainable Design
Status.
(3) As part of Developer's set of plans and documents submitted
to the City with Developer's plan check application for the
Project's building permit, Developer shall also submit the
LEEDO Credits identified in clause (2) above (prepared by
the LEEDO accredited professional) for review by the
Advisor to demonstrate that the Project is likely to achieve
the Sustainable Design Status.
(4) Prior to issuance of a final Certificate of Occupancy for the
Project, the City's Green Building Program Advisor shall
verify and approve (which approval shall not be
unreasonably withheld, conditioned or delayed) that the
LEEDO Credits identified in clause (2) above (prepared by
the LEEDO accredited professional) demonstrate that the
Project is likely to achieve the Sustainable Design Status.
Developer shall meet with the Advisor at least 30 days prior
to submitting the final LEEDO Credits for the Advisor's
approval, and during such meeting Developer shall review
the LEEDO progress with the Advisor.
(5) Notwithstanding the foregoing, if the Advisor has not yet
approved the LEEDO Credits that demonstrate that the
constructed Project has achieved the Sustainable Design
Status, the City shall nonetheless issue a temporary
Certificate of Occupancy for the Project (assuming that the
Project is otherwise entitled to receive a temporary
Certificate of Occupancy). The temporary Certificate of
Occupancy shall be converted to a final Certificate of
Occupancy once the Advisor determines that the LEEDO
0
Credits for the Project demonstrate that the constructed
Project has achieved the Sustainable Design Status..
5. EV Conduit. A minimum number of 208/240 V 40 amp, grounded AC
outlets equal to 10 percent of the total number of parking spaces; or, panel
capacity and conduit for future installation of electrical outlets designed to
allow the simultaneous charging of a minimum number of 208/240 V
40amp, grounded AC outlets equal to 10 percent of the total number of
parking spaces, shall be located in the parking area.
6. Shared Parking. In furtherance of the LUCE's shared parking policies:
(1) The Project shall be subject to a shared parking program
whereby commercial visitors and residential guests shall
have access to and utilize the same parking spaces.
(2) Consistent with providing sufficient on -site parking for
building users, the Developer may make any unused on -site
parking available for monthly lease at market rates to third
parties in the surrounding area in need of parking. Prior to
making any unused on -site parking available to third parties,
Developer shall obtain a written report by a traffic and
parking engineering firm that demonstrates that the
proposed parking spaces to be leased to third parties are not
needed to meet the Project's peak parking demand and shall
submit that report to the City for review and approval by the
Planning Director. Alternatively, Developer may seek City
approval for shared parking in accordance with any City
procedure in effect at the time Developer requests approval
for a shared parking arrangement.
7. Project Design. As a result of this Agreement, there are enhanced
elements of the Project design, including enhanced walkway and
courtyard areas as shown on the Project Plans and other pedestrian -
oriented design elements of the Project. The public use of that certain
area designated on the Project Plans as "Public Use Area" shall be: (i)
consistent with the terms and conditions of this Agreement; (ii) solely for
pedestrian access to and passive use of the Public Use Area by the
public; and (iii) compatible with Developer's development, use and
enjoyment of the Project. No use other than pedestrian access to and
passive use of the Public Use Area by the public shall be permitted on the
Public Use Area. Between the hours of 10:00 p.m. and 8:00 a.m.,
Developer may limit public access to the Public Use Area.
8. Local Hiring. Developer shall implement the local hiring program set
forth in Exhibit "I ".
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9. Floor area devoted to any individual restaurant use shall not exceed 2,500
square feet in size.
Administrative Conditions
10. 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
11. This approval is for those plans dated 09/08/11, 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.
12. 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.
13. 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 General Plan policies of the City of Santa
Monica prior to building permit issuance.
Fees
14. 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.
15. 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.
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Cultural Resources
16. No demolition of buildings or structures 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.
17. 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
18. 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.
19. The project shall at all times comply with the provisions of the Noise
Ordinance (SMMC Chapter 4.12).
Final Design
20. Plans for final design, landscaping, screening, trash enclosures, and
signage shall be subject to review and approval by the Architectural
Review Board.
21. 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 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.
22. No gas or electric meters shall be located within the required front or
street side yard setback areas. The Architectural Review Board in its
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review shall pay particular attention to the location and screening of such
meters.
23. 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.
24. As appropriate, the Architectural Review Board shall require the use of
anti - graffiti materials on surfaces likely to attract graffiti.
25. The Architectural Review Board, in its review, shall pay particular attention
to the outdoor courtyard, the outdoor dining areas, and landscaping
including along the alley, to ensure the pedestrian orientation of the
ground floor.
26. The Architectural Review Board, in its review, shall pay particular attention
to the roof line, fenestration, Trespa panel configuration, quality of sun
shades and other canopy projections, color palette, and other architectural
details to ensure a congruous and quality overall building design.
Construction Plan Requirements
27. 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
28. 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.
29. 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.
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Construction Period
30. 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.
31. 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.
32. 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:
33. 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.
34. 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.
35. All material transported on and off -site shall be securely covered to
prevent excessive amounts of dust.
36. Soils stockpiles shall be covered.
37. Onsite vehicle speeds shall be limited to 15 mph.
38. 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.
39. An appointed construction relations officer shall act as a community liaison
concerning onsite construction activity including resolution of issues
related to PM 10 generation.
40. 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).
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41. All active portions the construction site shall be sufficiently watered three
times a day to prevent excessive amounts of dust.
42. Developer shall prepare a notice, subject to the review by the Director of
Planning and Community Development, that lists all ' 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 proposed construction. The notice shall be
mailed to property owners and residents of the neighborhood bounded b
Wilshire Boulevard, Lincoln Boulevard, Santa Monica Boulevard, and 6t
Street at least five (5) days prior to the start of construction.
43. 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.
44. 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.
45. 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
offsite 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
46. 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 a sound -rated parapet
enclosure.
47. 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
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for review to ensure that noise levels do not exceed maximum allowable
levels for the applicable noise zone.
48. Final parking lot layout and specifications shall be subject to the review
and approval of the Transportation Management Division. Construction
period signage shall be subject to the approval of the Architectural Review
Board.
49. The property owner shall insure any graffiti on the site is promptly
removed through compliance with the City's graffiti removal program.
Open Space Management
50. 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
51. 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.
General Conditions
52. Developer shall be responsible for the payment of the following Public
Works Department (PWD) permit fees prior to issuance of a building
permit:
a. Water Services
b. Wastewater Capital Facility
C. Water Demand Mitigation
d. Fire Service Connection
e. Tieback Encroachment
f. Encroachment of on -site improvements into public right -of -way
g. Construction and Demolition Waste Management (deposit)
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These fees shall be reimbursed to developer in accordance with the City's
standard practice should Developer not proceed with development of the
Project.
53. Any work or use of the public right -of -way including any proposed
encroachments of on -site improvements into the public right -of -way will
require a permit from the Public Works Department (PWD) -
Administrative Services Division.
54. Plans and specifications for all offsite improvements shall be prepared by
a Registered Civil Engineer licensed in the State of California for approval
by the City Engineer prior to issuance of a building permit.
55. 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.
56. 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, developer and contractor for the purposes of
responding to questions and complaints during the construction period.
Said sign shall also indicate the hours of permissible construction work.
57. 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.
58. 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 Office of Sustainability and Environment 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.
Water Resources
59. Connections to the sewer or storm drains require a sewer permit from the
PWD - Civil Engineering Division. Connections to storm drains owned by
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Los Angeles County require a permit from the L.A. County Department of
Public Works.
60. Parking areas and structures and other facilities generating wastewater
with potential oil and grease content are required to pretreat the
wastewater before discharging to the City storm drain or sewer system.
Pretreatment will require that a clarifier or oil /water separator be installed
and maintained on site.
61. If the project involves dewatering, developer /contractor shall contact the
LA Regional Water Quality Control Board (RWQCB) to obtain an NPDES
Permit for discharge of groundwater from construction dewatering to
surface water. For more information refer to:
http:// www .waterboards.ca.gov /losangeles/ and search for Order # R4-
2003 -0111.
62. [Reserved]
63. [Reserved]
64. Developer shall not directly connect to a public storm drain pipe or direct
site drainage to the public alley.
65. All existing sanitary sewer "house connections" to be abandoned, shall be
removed and capped at the "Y" connections.
66. The fire services and domestic services 3- inches or greater must be
above ground, on the applicant's site, readily accessible for testing.
Commercial or residential units are required to either have an individual
water meter or a master meter with sub - meters.
67. Developer is required to meet state cross - connection and potable water
sanitation guidelines. Refer to requirements and comply with the cross -
connections guidelines available at:
http: / /www.lapublicheaIth.org /eh /progs /envirp /ehcross.htm. Prior to
issuance of a Certificate of Occupancy, a cross - connection inspection
shall be completed.
68. All new restaurants and cooking facilities at the site are required to install
Gravity Grease Interceptors to pretreat wastewater containing grease. The
minimum capacity of the interceptor shall be determined by using table 10-
3 of the 2007 Uniform Plumbing Code, Section 1014.3. All units shall be
fitted with a standard final -stage sample box. The 2007 Uniform Plumbing
Code guideline in sizing Gravity Grease Interceptors is intended as a
minimum requirement and may be increased at the discretion of PWD,
Water Resources Protection Program.
69. Ultra -low flow plumbing fixtures are required on all new development and
remodeling where plumbing is to be added. (Maximum 1.6 gallon toilets
and 1.0 gallon urinals and low flow showerhead.)
Urban Water Runoff Mitigation
70. To mitigate storm water and surface runoff from the project site, an Urban
Runoff Mitigation Plan shall be required by the PWD pursuant to Municipal
Code Chapter 7.10. Prior to submittal of landscape plans for Architectural
Review Board approval, the applicant shall contact PWD to determine
applicable requirements, such as:
a. The site must comply with SMMC Chapter 7.10 Urban Runoff
Pollution Ordinance for the construction phase and post
construction activities;
b. Non - stormwater runoff, sediment and construction waste from the
construction site and parking areas is prohibited from leaving the
site;
C. Any sediments or materials which are tracked off -site must be
removed the same day they are tracked off -site;
d. Excavated soil must be located on the site and soil piles should be
covered and otherwise protected so that sediments are not tracked
into the street or adjoining properties;
e. No runoff from the construction site shall be allowed to leave the
site; and
f. Drainage control measures shall be required depending on the
extent of grading and topography of the site.
g. Development sites that result in land disturbance of one acre or
more are required by the State Water Resources Control Board
(SWRCB) to submit a Storm Water Pollution Prevention Plan
( SWPPP). Effective September 2, 2011, only individuals who have
been certified by the Board as a "Qualified SWPPP Developer" are
qualified to develop and /or revise SWPPPs. A copy of the SWPPP
shall also be submitted to the PWD.
Public Streets & Right -of -Way
71. Prior to the issuance of a Certificate of Occupancy for the Project,
streetscape for the Arizona Avenue and 7th Street frontages, such as AC
pavement rehabilitation, replacement of sidewalk, curbs and gutters,
installation of street trees, lighting and other appropriate street
improvements shall be designed and installed to the satisfaction of the
PWD and Public Landscape Division.
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72. Unless otherwise approved by the PWD, all sidewalks shall be kept clear
and passable during the grading and construction phase of the project.
73. Sidewalks, curbs, gutters, paving and driveways which need replacing or
removal as a result of the project as determined by the PWD shall be
reconstructed to the satisfaction of the PWD.
74. [Reserved]
75. [Reserved]
Utilities
76. Prior to the issuance of a Certificate of Occupancy for the Project, provide
new street - pedestrian lighting with a multiple circuit system along the new
street right -of -way and within the development site in compliance with the
PWD Standards and requirements. New street - pedestrian light poles,
fixtures and appurtenances to meet City standards and requirements.
77. Participate in conversion of existing street light system with high voltage
series circuit to multiple circuit system on Arizona Avenue between 7th
Street and Lincoln Boulevard and on 7th Street between Arizona Avenue
and Santa Monica Boulevard. Developer shall be responsible for only a
portion of design and construction costs proportionate to development
frontage on Arizona Avenue and 7th Street.
78. Make arrangements with utility companies and pay for undergrounding of
all overhead utilities within and along the development frontages. Existing
and proposed overhead utilities need to be relocated underground.
79. Location of Southern California Edison electrical transformer and switch
equipment/structures must be clearly shown of the development site plan
and other appropriate plans within the project limits. The SCE structures
serving the proposed development shall not be located in the public right -
of -way.
Resource Recovery and Recycling
80. Development plans must show the refuse and recycling (RR) area
dimensions to demonstrate adequate and easily accessible area. If the RR
area is completely enclosed, then lighting, ventilation and floor drain
connected to sewer will be required. Section 9.04.10.02.151 of the SMMC
has dimensional requirements for various sizes and types of projects.
Developments that place the RR area in subterranean garages must also
provide a bin staging area on their property for the bins to be placed for
collection.
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81. Contact the PWD — Resource Recovery and Recycling (RRR) Division for
specific requirements of the refuse and recycling enclosure and where
feasible install trash compaction devices to reduce the volume of refuse
for disposal. Show compliance with these requirements on the building
plans. Prior to issuance of a Certificate of Occupancy, submit a recycling
plan to the RRR Division for its approval. The recycling plan shall include:
a. List of materials such as white paper, computer paper, metal cans,
and glass to be recycled;
b. Location of recycling bins;
C. Designated recycling coordinator;
d. Nature and extent of internal and external pick -up service;
e. Pick -up schedule; and
f. Plan to inform tenants/ occupants of service.
Construction Period Mitigation
82. A construction period mitigation plan shall be prepared by the applicant for
approval by the PWD 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:
a. Specify the names, addresses, telephone numbers and business
license numbers of all contractors and subcontractors as well as
the developer and architect;
b. Describe how demolition of any existing structures is to be
accomplished;
C. Indicate where any cranes are to be located for
erection /construction;
d. Describe how much of the public street, alleyway, or sidewalk is
proposed to be used in conjunction with construction;
e. Set forth the extent and nature of any pile- driving operations;
f. Describe the length and number of any tiebacks which must extend
under the public right -of -way and other private properties;
g. Specify the nature and extent of any dewatering and its effect on
any adjacent buildings;
h. Describe anticipated construction - related truck routes, number of
truck trips, hours of hauling and parking location;
i. Specify the nature and extent of any helicopter hauling;
21
State whether any construction activity beyond normally permitted
hours is proposed;
k. Describe any proposed construction noise mitigation measures,
including measures to limit the duration of idling construction trucks;
Describe construction - period security measures including any
fencing, lighting, and security personnel;
M. Provide a grading and drainage plan;
n. Provide a construction - period parking plan which shall minimize
use of public streets for parking;
o. List a designated on -site construction manager;
p. Provide a construction materials recycling plan which seeks to
maximize the reuse /recycling of construction waste;
q. Provide a plan regarding use of recycled and low-environmental-
impact materials in building construction; and
r. Provide a construction period urban runoff control plan.
Air Quality
83. Dust generated by the development activities shall be kept to a minimum
with a goal of retaining dust on the site through implementation of the
following measures recommended by the SCAQMD Rule 403 Handbook:
i. During clearing, grading, earth moving, excavation, or
transportation of cut or fill materials, water trucks or sprinkler
systems are to be used to the extent necessary to prevent dust
from leaving the site and to create a crust after each day's activities
cease.
ii. 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
with written certification that all trucks leaving the site are covered
in accordance with this condition of approval.
iii. During clearing, grading, earth moving, excavation, or
transportation of cut or fill materials, streets and sidewalks within
150 feet of the site perimeter shall be swept and cleaned a
minimum of twice weekly or as frequently as required by the PWD.
iv. During construction, water trucks or sprinkler systems shall be used
to keep all areas of vehicle movement damp enough to prevent
dust from leaving the site. At a minimum, this would include wetting
AN
down such areas in the later morning and after work is completed
for the day and whenever wind exceeds 15 miles per hour.
V. Soil stockpiled for more than two days shall be covered, kept moist,
or treated with soil binders to prevent dust generation.
84. Construction equipment used on the site shall meet the following
conditions in order to minimize NOx and ROC emissions:
Diesel- powered equipment such as booster pumps or generators
should be replaced by electric equipment to the extent feasible; and
ii. The operation of heavy -duty construction equipment shall be limited
to no more than 5 pieces of equipment at one time.
Noise Attenuation
85. All diesel equipment shall be operated with closed engine doors and shall
be equipped with factory- recommended mufflers.
86. Electrical power shall be used to run air compressors and similar power
tools.
87. For all noise - generating activity on the project site associated with the
installation of new facilities, 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.
Miscellaneous:
88. For temporary excavation and shoring that includes tiebacks into the
public right -of -way, a Tieback Agreement, prepared by the City Attorney,
will be required.
89. If artist studios are provided on the ground floor, Developer shall market
and outreach to the local art community of the availability of the project's
artist studio component.
90. The employee locker shower and locker facilities shall be located on the
P1 parking level or any floor about that.
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Fire — City of Santa Monica
GENERAL REQUIREMENTS
The following comments are to be included on plans if applicable.
Requirements are based on the California Fire Code (CFC), the Santa Monica
Municipal Code (SMMC) and the California Building Code (CBC).
California Fire Code/ Santa Monica Fire Department Reauirements
91. A fire apparatus access road shall be provided to within 150 feet of all
exterior walls of the first floor of the building. The route of the fire
apparatus access road shall be approved by the fire department. The 150
feet is measured by means of an unobstructed route around the exterior of
the building.
92. Apparatus access roads shall have a minimum unobstructed width of 20
feet. A minimum vertical clearance of 13 feet 6 inches shall be provided
for the apparatus access roads.
93. Dead -end fire apparatus access roads in excess of 150 feet in length shall
be provided with an approved means for turning around the apparatus.
94. A "Knox" key storage box shall be provided for ALL new construction. For
buildings, other than high -rise, a minimum of 3 complete sets of keys shall
be provided. Keys shall be provided for all exterior entry doors, fire
protection equipment control equipment rooms, mechanical and electrical
rooms, elevator controls and equipment spaces, etc. For high -rise
buildings, 6 complete sets are required.
95. Santa Monica Municipal Code Chapter 8 section 8.44.050 requires an
approved automatic fire sprinkler system in ALL new construction and
certain remodels or additions. Any building that does not have a
designated occupant and use at the time fire sprinkler plans are submitted
for approval, the system shall be designed and installed to deliver a
minimum density of not less than that required for ordinary hazard, Group
2, with a minimum design area of not less than three thousand square
feet. Plans and specifications for fire sprinkler systems shall be submitted
and approved prior to system installation.
96. Buildings four or more stories in height shall be provided with not less than
one standpipe during construction.
97. The standpipe(s) shall be installed before the progress of construction is
more than 35- feet above grade. Two - and - one - half -inch valve hose
connections shall be provided at approved, accessible locations adjacent
to useable stairs. Temporary standpipes shall be capable of delivering a
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minimum demand of 500 gpm at 100 -psi residual pressure. Pumping
equipment shall be capable of providing the required pressure and
volume.
98. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum
rating of 2A- 10B:C. Extinguishers shall be located on every floor or level.
Maximum travel distance from any point in space or building shall not
exceed 75 feet. Extinguishers shall be mounted on wall or installed in
cabinet no higher than 4 ft. above finished floor and plainly visible and
readily accessible or signage shall be provided.
99. An automatic fire extinguishing system complying with UL 300 shall be
provided to protect commercial -type cooking or heating equipment that
produces grease -laden vapors. A separate plan submittal is required for
the installation of the system and shall be in accordance with UFC Article
10, NFPA 17A and NFPA 96. Provide a Class "K° type portable fire
extinguisher within 30 feet the kitchen appliances emitting grease -laden
vapors.
100. Every building and /or business suite is required to post address numbers
that are visible from the street and alley. Address numbers shall be a
minimum of six (6) inches in height and contrast with their background.
Suite or room numbers shall be a minimum of four (4) inches in height and
contrast with their background. Santa Monica Municipal Code Chapter 8
Section 8.48.130 (1) (1)
101. When more than one exit is required they shall be arranged so that it is
possible to go in either direction to a separate exit, except deadends not
exceeding 20 feet, and 50 feet in fully sprinklered buildings.
102. Exit and directional signs shall be installed at every required exit doorway,
intersection of corridors, exit stairways and at other such locations and
intervals as necessary to clearly indicate the direction of egress. This
occupancy /use requires the installation of approved floor level exit
pathway marking. Exit doors shall be openable from the inside without the
use of a key, special effort or knowledge.
103. Show ALL door hardware intended for installation on Exit doors.
104. In buildings two stories or more in height an approved floor plan providing
emergency procedure information shall be posted at the entrance to each
stairway, in every elevator lobby, and immediately inside all entrances to
the building. The information shall be posted so that it describes the
represented floor and can be easily seen upon entering the floor level or
the building. Required information shall meet the minimum standards
established in the Santa Monica Fire Department, Fire Prevention
25
Division, information sheet entitled "Evacuation Floor Plan Signs."
(California Code of Regulations Title 19 Section 3.09)
105. Stairway Identification shall be in compliance with CBC 1022.8
106. Floor -level exit signs are required in Group A, E, I, R -1, R -2 and R -4
occupancies.
107. In buildings two stories in height at least one elevator shall conform to the
California Building Code Chapter 30 section 3003.5a for General Stretcher
Requirements for medical emergency use.
a. The elevator entrance shall not be less than 42 inches wide by 72
inches high.
b. The elevator car shall have a minimum clear distance between
walls excluding return panels of not less than 80 inches by 54
inches.
C. Medical emergency elevators shall be identified by the international
symbol (star of life) for emergency elevator use. The symbol shall
be not less than 3- inches in size.
108. Storage, dispensing or use of any flammable or combustible liquids,
flammable compressed gases or other hazardous materials shall comply
with the Uniform Fire Code. The Santa Monica Fire Department prior to
any materials being stored or used on site shall approve the storage and
use of any hazardous materials. Complete and submit a "Consolidated
Permit Application Package." Copies may be obtained by calling (310)
458 -8915.
109. Alarm- initiating devices, alarm- notification devices and other fire alarm
system components shall be designed and installed in accordance with
the appropriate standards of Chapter 35 of the Building Code, and the
National Fire Alarm Code NFPA 72. The fire alarm system shall include
.visual notification appliances for warning the hearing impaired. Approved
visual appliances shall be installed in ALL rooms except private
(individual) offices, closets, etc
110. An approved fire alarm system shall be installed as follows:
111. Group A Occupancies with an occupant load of 1,000 or more shall be
provided with a manual fire alarm system and an approved prerecorded
message announcement using an approved voice communication system.
Emergency power shall be provided for the voice communication system.
112. Group E Occupancies having occupant loads of 50 or more shall be
provided with an approved manual fire alarm system.
26
113. Group R -1, R -2 Apartment houses containing 16 or more dwelling units, in
building three or more stories in height R -2.1 and R -4 Occupancies shall
be provided with a manual alarm system. Smoke detectors shall be
provided in all common areas and interior corridors of required exits.
Recreational, laundry, furnace rooms and similar areas shall be provided
with heat detectors.
114. Plans and specifications for fire alarm systems shall be submitted and
approved prior to system installation
Santa Monica Fire Department - Fire Prevention Policy Number 5 -1
Subiect: Fire Apparatus Access Road Requirements
Scope: This policy identifies the minimum standards for apparatus access roads
required by California Fire Code, Section 503.
Application
115. Fire apparatus access roads shall comply with the following minimum
standards:
a. The minimum clear width shall be not less than 20 feet. No parking,
stopping or standing of vehicles is permitted in this clear width.
b. When fire hydrants or fire department connections to fire sprinkler
systems are located on fire apparatus access roads the minimum
width shall be 26 feet. This additional width shall extend for 20 feet
on each side of the centerline of the fire hydrant or fire department
connection.
C. The minimum vertical clearance shall be 13 feet, 6 inches.
d. The minimum turn radius for all access road turns shall be not less
than 39 feet for the inside radius and 45 feet for the outside radius.
e. Dead -end access roads in excess of 150 feet in length shall be
provided with either a 96 feet diameter "cul -de- sac," 60 foot "Y" or
120 -foot "hammerhead" to allow the apparatus to turn.
f. The surface shall be designed and maintained to support the
imposed loads of at least 75,000 -pound and shall be "all- weather."
An "all- weather" surface is asphalt, concrete or other approved
driving surface capable of supporting the load.
116. Gates installed on fire apparatus access roads shall comply with the
following:
a. The width of any gate installed on a fire apparatus access road
shall be a minimum of 20 feet.
b. Gates may be of the swinging or sliding type.
27
C. Gates shall be constructed of materials that will allow for manual
operation by one person.
d. All gate components shall be maintained in an operative condition
at all times and shall be repaired or replaced when defective.
e. Electric gates shall be equipped with a means of opening the gate
by fire department personnel for emergency access. The Fire
Prevention Division shall approve emergency opening devices.
f. Manual opening gates may be locked with a padlock, as long it is
accessible to be opened by means of forcible entry tools.
g. The Fire Prevention Division shall approve locking device
specification.
117. Fire apparatus access roads shall be marked with permanent NO
PARKING — FIRE LANE CVC SECTION 22500.1. Signs shall have a
minimum dimension of 12 inches wide and 18 inches high having red
letters on a white reflective background.
a. Fire apparatus access roads signs and placement shall comply with
the following:
Fire Apparatus access roads 20 to 26 feet wide must be
posted on both sides as a fire lane.
ii. Fire Apparatus access roads 26 to 32 feet wide must be
posted on one side as a fire lane.
118. Buildings or facilities exceeding 30 feet in height or more than 3 stories in
height shall have at least 2 fire apparatus access roads for each structure.
119. Fire apparatus access roads for commercial and industrial development
shall comply with the following:
Buildings or facilities exceeding 30 feet in height or more than 3
stories in height shall have at least 2 means of fire apparatus
access for each structure.
ii. Buildings or facilities having a gross floor area of more than 62,000
square feet shall be provided with 2 fire apparatus access roads.
iii. When two access roads are required, they shall be placed a
distance apart equal to not less than one half of the length of the
maximum overall diagonal dimension of the property or area to be
accessed measured in a straight line between access.
120. Aerial apparatus access roads shall comply with the following:
28
i. Buildings or portions of buildings or facilities exceeding 30 feet in
height from the lowest point of Fire Department access shall be
provided shall be provided with approved apparatus access roads
capable of accommodating aerial apparatus.
ii. Apparatus access roads shall have a minimum width of 26 feet in
the immediate vicinity of any building or portion of a building more
than 30 feet in height.
iii. At least one of the required access roads meeting this condition
shall be located within a minimum of 15 feet and maximum of 30
feet from the building and shall be a positioned parallel to one
entire side of the building.
a 20'
F - 26' R 26'
28' R TYP.'
P, 20'�
20' � 20'
26' —�
96' DIAMETER 60 '-yr MINIMUM CLEARANCE
CUL -DE -SAC AROUND A FIRE
HYDRANT
60 .1 �$ 0 TYP
i
26'R 20
TYP' 20'--T
-26' -* r-20'
720' HAMMERHEAD ACCEPTABLE ALTERNATIVE
TO 120' HAMMERHEAD
101
121. California Building Code / Santa Monica Fire Department Requirements
Occupancy Classification and Division
• If a change in occupancy or use, identify the existing and all proposed
new occupancy classifications and uses
• Assembly (A -1, A -2, A -3), Business (B), Mercantile (M), Residential
(R), etc.
• Include all accessory uses
Building Height
• Height in feet (SMMC defines a High -Rise as any structure greater
then 55 feet.)
• Number of stories
• Detail increase in allowable height
• Type I (II -FR.) buildings housing Group B office or Group R, Division 1
Occupancies each having floors used for human occupancy located
more than 55 feet above the lowest level of fire department vehicle
access shall comply with CBC Section 403.
119111Isa
a. Automatic sprinkler system.
b. Smoke - detection systems.
c. Smoke control system conforming to Chapter 9 section
d. Fire alarm and communication systems.
1. Emergency voice alarm signaling system.
2. Fire department communication system.
e. Central control station. (96 square feet minimum with a
minimum dimension of 8' ft)
f. {omitted}
g. Elevators.
h. Standby power and light and emergency systems.
i. Exits
j. Seismic consideration.
30
Total Floor Area of Building or Project
• Basic Allowable Floor Area
• Floor Area for each room or area
• Detail allowable area increase calculations
Corridor Construction
• Type of Construction
• Detail any and all code exceptions being used
Occupant Load Calculations
• Occupancy Classification for each room or area.
• Occupant Load Calculation for each room or area based on use or
occupancy
• Total Proposed Occupant Load
Means of Egress
• Exit width calculations
• Exit path of travel
• Exit Signage and Pathway Illumination (low level exit signage)
Atria - Atria shall comply with CBC Section 404 as follows:
• Atria shall not be permitted in buildings containing Group H
Occupancies.
• The entire building shall be sprinklered.
• A mechanically operated smoke - control system meeting the
requirements of Section 909 and 909.9 shall be installed.
• Smoke detectors shall be installed in accordance with the Fire Code.
• Except for open exit balconies within the atrium, the atrium shall be
separated from adjacent spaces by one -hour fire - resistive construction.
See exceptions to Section 404.6.
• When a required exit enters the atrium space, the travel distance from
the doorway of the tenant space to an enclosed stairway, horizontal
exit, exterior door or exit passageway shall not exceed 200 feet.
• In other than jails, prisons and reformatories, sleeping rooms of Group
I Occupancies shall not have required exits through the atrium.
31
• Standby power shall be provided for the atrium and tenant space
smoke - control system. Sections 404.7 and 909.11.
• The interior finish for walls and ceilings of the atrium and all
unseparated tenant spaces shall be Class I. Section 404.8.
Atriums of a height greater than 20 feet, measured from the ceiling sprinklers,
shall only contain furnishings and decorative materials with potential heat of
combustion less than 9,000 Btu's per pound. All furnishings to comply with
California Bureau of Home Furnishings, Technical Bulletin 133, "Flammability
Test for Seating Furniture in Public Occupancies."
All furnishings in public areas shall comply with California Bureau of Home
Furnishings, Technical Bulletin 133, "Flammability Test for Seating Furniture in
Public Occupancies."
Fire — Los Angeles County
122. Fire Flow Requirements
I. INTRODUCTION
A. Purpose: To provide Department standards for fire flow, hydrant
spacing and specifications.
B. Scope: Informational to the general public and instructional to all
individuals, companies, or corporations involved in the subdivision of
land, construction of buildings, or alterations and /or installation of fire
protection water systems and hydrants.
C. Author: The Deputy Chief of the Prevention Services Bureau
through the Assistant Fire Chief (Fire Marshal) of the Fire
Prevention Division is responsible for the origin and
maintenance of this regulation.
D. Definitions:
1. GPM — gallons per minute
2. psi — pounds per square inch
3. Detached condominiums — single detached dwelling
units on land owned in common
4. Multiple family dwellings — three or more dwelling units
attached
32
II. RESPONSIBILITY
A. Land Development Unit
1. The Department's Land Development Unit shall review all
subdivisions of land and apply fire flow and hydrant spacing
requirements in accordance with this regulation and the
present zoning of the subdivision or allowed land use as
approved by the County's Regional Planning Commission or
city planning department.
B. Fire Prevention Engineering Section
1. The Department's Fire Prevention Engineering Section shall
review building plans and apply fire flow and hydrant spacing
requirements in accordance with this regulation.
III. POLICY
A. The procedures, standards, and policies contained herein are
provided to ensure the adequacy of, and access to, fire
protection water and shall be enforced by all Department
personnel.
(remainder of page is blank}
33
IV. PROCEDURES
A. Land development: fire flow, duration of flow, and hydrant spacing
The following requirements apply to land development issues such
as: tract and parcel maps, conditional use permits, zone changes, lot
line adjustments, planned unit developments, etc.
1. Residential
Fire Zones 3
Very High Fire Hazard Severity Zone (VHFHSZ)
Public
Fire Flow Duration Hydrant
of Flow Spacing
a. Single family dwelling 1,250 GPM 2 hrs. 600 ft.
and detached
condominiums
(1 — 4 Units)
(Under 5,000 square feet)
b. Detached condominium 1,500 GPM 2 hrs. 300 ft.
(5 or more units)
(Under 5,000 square feet)
C. Two family dwellings 11500 GPM 2 hrs. 600 ft.
(Duplexes)
NOTE: FOR SINGLE FAMILY DWELLINGS OVER
5,000
SQUARE FEET. SEE, TABLE 1 FOR
FIRE FLOW REQUIREMENTS PER
BUILDING SIZE.
2. Multiple family dwellings, hotels, high rise, commercial, industrial,
etc.
a. Due to the undetermined building designs for new land
development projects (undeveloped land), the required fire
flow shall be: 5,000 GPM 5 hrs. 300 ft.
NOTE: REDUCTION IN FIRE FLOW IN
ACCORDANCE WITH TABLE 1.
Kul
b. Land development projects consisting of lots having
existing structures shall be in compliance with Table 1 (fire
flow per building size). This standard applies to multiple
family dwellings, hotels, high rise, commercial, industrial,
etc.
NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT
20 POUNDS PER SQUARE INCH
RESIDUAL PRESSURE.
B. Building plans
The Department's Fire Prevention Engineering Section shall review building
plans and apply fire flow requirements and hydrant spacing in accordance
with the following:
1. Residential
Building Occupancy
Classification
a. Sinale familv dwellinas - Fire Zone 3 (Less than 5.000 sauare feet
Duration Public
Fire Flow of Flow Hydrant
Spacing
On a lot of one acre or more 750 GPM 2 hrs. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs 600 ft.
- b. Single family dwellings — VHFHSZ (Less than 5,000 square feet)
On a lot of one acre or more 1,000 GPM 2 hrs. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs 600 ft.
NOTE: FOR SINGLE FAMILY DWELLINGS GREATER THAN 5,000
SQUARE FEET IN AREA SEE TABLE
35
C.
Duration
Fire Flow of Flow
c. Two family dwellings — VHFHSZ (Less than 5,000 square feet)
Duplexes
2. Mobile Home Park
a. Recreation Buildings
b. Mobile Home Park
1,500 GPM 2 hrs
Public
Hydrant
Spacing
600 ft.
Refer to Table 1 for fire flow according to
building size.
1,250 GPM 2 hrs 600 ft.
3. Multiple residential, apartments, single family residences (greater
than 5,000 square feet), private schools, hotels, high rise,
commercial, industrial, etc. (R -1, E, B, A, I, H, F, M, S) (see Table
1).
Public fire hydrant requirements
1. Fire hydrants shall be required at intersections and along access
ways as spacing requirements dictate
2. Spacing
a. Cul -de -sac
When cul -de -sac depth exceeds 450' (residential) or
200' (commercial), hydrants shall be required at mid -
block. Additional hydrants will be required if hydrant
spacing exceeds specified distances.
b. Single family dwellings
Fire hydrant spacing of 600 feet
NOTE: The following guidelines shall be used
in meeting single family dwellings
hydrant spacing requirements:
(1) Urban properties (more than one unit per acre):
In
No portion of lot frontage should be more
than 450' via vehicular access from a public
hydrant.
(2) Non -Urban Properties (less than one unit per acre):
No portion of a structure should be placed on
a lot where it exceeds 750' via vehicular
access from a properly spaced public
hydrant that meets the required fire flow.
C. All occupancies
Other than single family dwellings, such as
commercial, industrial, multi - family dwellings,
private schools, institutions, detached
condominiums (five or more units), etc.
Fire hydrant spacing shall be 300 feet.
NOTE: The following guidelines shall be
used in meeting the hydrant spacing requirements.
(1) No portion of lot frontage shall be more than
200 feet via vehicular access from a public
hydrant.
(2) No portion of a building should exceed 400
feet via vehicular access from a properly spaced
public hydrant.
d. Supplemental fire protection
When a structure cannot meet the required public
hydrant spacing distances, supplemental fire
protection shall be required.
NOTE: Supplemental fire protection is not limited
to the installation of on -site fire hydrants; it may
include automatic extinguishing systems.
3. Hydrant location requirements - both sides of a street
Hydrants shall be required on both sides of the street whenever:
a. Streets having raised median center dividers that make access
to hydrants difficult, causes time delay, and /or creates undue
37
hazard.
b. For situations other than those listed in "a" above, the
Department's inspector's judgment shall be used. The
following items shall be considered when determining hydrant
locations:
(1) Excessive traffic loads, major arterial
route, in which traffic would be difficult
to detour.
(2) Lack of adjacent parallel public streets
in which traffic could be redirected
(e.g., Pacific Coast Highway).
(3) Past practices in the area.
(4) Possibility of future development in the
area.
(5) Type of development (i.e., flag -lot
units, large apartment or. condo
complex, etc.).
(6) Accessibility to existing hydrants
(7) Possibility of the existing street having
a raised median center divider in the
near future.
D. On -Site Hydrant Requirements
1. When any portion of a proposed structure exceeds (via vehicular
access) the allowable distances from a public hydrant and on -site
hydrants are required, the following spacing requirements shall be
met:
a. Spacing distance between on -site hydrants shall be 300 to
600 feet.
(1) Design features shall assist in allowing
distance modifications.
b. Factors considered when allowing distance modifications.
(1) Only sprinklered buildings qualify for
the maximum spacing of 600 feet.
M
(2) For non- sprinklered buildings,
consideration should be given to fire
protection, access doors, outside
storage, etc. Distance between
hydrants should not exceed 400 feet.
2. Fire flow
a. All on -site fire hydrants shall flow a minimum of 1,250 gallons
per minute at 20 psi for a duration of two hours. If more than
one on -site fire hydrant is required, the on -site fire flow shall
be at least 2,500 gallons per minute at 20 psi, flowing from
two hydrants simultaneously. On site flow may be greater
depending upon the size of the structure and the distance
from public hydrants.
NOTE: ONE OF THE TWO HYDRANTS TESTED SHALL
BE THE FARTHEST FROM THE PUBLIC WATER
SOURCE.
3. Distance from structures
All on -site hydrants shall be installed a minimum of 25 feet
from a structure or protected by a two -hour firewall.
4. Shut -off valves
All on -site hydrants shall be equipped with a shut -off (gate)
valve, which shall be located as follows:
a. Minimum distance to the hydrant 10 feet.
b. Maximum distance from the hydrant 25 feet
5. Inspection of new installations
All new on -site hydrants and underground installations are
subject to inspection of the following items by a
representative of the Department:
a. Piping materials and the bracing and support thereof.
b. A hydrostatic test of 200 psi for two hours.
C. Adequate flushing of the installation.
d. Flow test to satisfy required fire flow.
(1) Hydrants shall be painted with two coats of red
primer and one coat of red paint, with the exception
39
E.
of the stem and threads, prior to flow test and
acceptance of the system.
6. Maintenance
It shall be the responsibility of the property management
company, the homeowners association, or the property
owner to maintain on -site hydrants.
a. Hydrants shall be painted with two coats of red primer and
one coat of red, with the exception of the stem and threads,
prior to flow test and acceptance of the system.
b. No barricades, walls, fences, landscaping, etc., shall be
installed or planted within three feet of a fire hydrant.
Public Hydrant Flow Procedure
The minimum acceptable flow from any existing public hydrant shall be
1,000
GPM unless the required fire flow is less. Hydrants used to
satisfy fire flow requirements will be determined by the following
items:
1. Only hydrants that meet spacing requirements are
acceptable for meeting fire flow requirements.
2. In order to meet the required fire flow:
a. Flow closest hydrant and calculate to determine flow at
20 pounds per square inch residual pressure. If the
calculated flow does not meet the fire flow requirement,
the next closest hydrant shall be flowed simultaneously
with the first hydrant, providing it meets the spacing
requirement, etc.
b. If more than one hydrant is to be flowed in order to
meet the required fire flow, the number of hydrants
shall be flowed as follows:
One hydrant
Two hydrants
simultaneously
Three hydrants
simultaneously
1,250 GPM and below
1,251— 3,500 GPM
3,501— 5,000 GPM
LL11
flowing
flowing
F. Hydrant Upgrade Policy
1. Existing single outlet 2 1/2" inch hydrants shall be upgraded to
a double outlet 6" x 4" x 2 1/2" hydrant when the required fire
flow exceeds 1,250
GPM.
2. An upgrade of the fire hydrant will not be required if the required
fire
flow is between the minimum requirement of 750 gallons per
minute, up to and including 1,250 gallons per minute, and the
existing public water system will provide the required fire flow
through an existing wharf fire hydrant.
3. All new required fire hydrant installations shall be approved
6" x 4" x 2 1/2" fire hydrants.
4. When water main improvements are required to meet GPM
flow, and the existing water main has single outlet 2 1/2" fire
hydrant(s), then a hydrant(s) upgrade will be required. This
upgrade shall apply regardless of flow requirements.
5. The owner - developer shall be responsible for making the
necessary arrangements with the local water purveyor for
the installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs
are not provided (see Figures 1, 2, and 3 following on
pages 11 and 12).
G. Hydrant Specifications
All required public and on -site fire hydrants shall be installed to the
following specifications prior to flow test and acceptance of the
system.
1. Hydrants shall be:
a. Installed so that the center line of the lowest outlet is
between 14 and 24 inches above finished grade
b. Installed so that the front of the riser is between 12 and
24 inches behind the curb face
C. Installed with outlets facing the curb at a 45- degree
angle to the curb line if there are double outlet hydrants
BI
d. Similar to the type of construction which conforms to
current A.W.W.A. Standards
e. Provided with three -foot unobstructed clearance on all
sides.
f. Provided with approved plastic caps
g. Painted with two coats of red primer and one coat of
traffic signal yellow for public hydrants and one coat of
red for on -site hydrants, with the exception of the stems
and threads
2. Underground shut -off valves are to be located:
a. A minimum distance of 10 feet from the hydrant b. A
maximum distance of 25 feet from the hydrant
Exception: Location can be less than 10 feet when the
water main is already installed and the 10 -foot minimum
distance cannot be satisfied.
3. All new water mains, laterals, gate valves, buries, and riser
shall be a minimum of six inches inside diameter.
4. When sidewalks are contiguous with a curb and are five feet
wide or less, fire hydrants shall be placed immediately
behind the sidewalk. Under no circumstances shall hydrants
be more than six feet from a curb line.
5. The owner- developer shall be responsible for making the
necessary arrangements with the local water purveyor for
the installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs
are not provided (see Figures 1, 2, and 3 following on
pages 11 and 12).
42
Barricade /Clearance Details
CONCRETE CAP
W BARRICADE POST
CONCRETE FILLED
T MIN. MIN. 4" DIA. SCHEDULE 40
STEEL. SEE NOTE 01
15'
Figure 1
Figure 2
CONCRETE
4' MIN.
BARRICADE\
V,
6 "x4 "X21/2"
OUT LETS
\
HYDRANT 1
I I t
I �
\ 36" w, /
y
PLAN
FIRE HYDRANT BARRICADES
(TYPICAL)
43
1
6 "x4
HYC
Figure 3
Notes:
4 0
1. Constructed of steel not less than four inches in diameter, six inches if
heavy truck traffic is anticipated, schedule 40 steel and concrete filled.
2. Posts shall be set not less than three feet deep in a concrete footing of
not less than 15 inches in diameter, with the top of the posts not less than
three feet above ground and not less than three feet from the hydrant
3. Posts, fences, vehicles, growth, trash storage and other materials or
things shall not be placed or kept near fire hydrants in a manner that
would prevent fire hydrants from being immediately discernable.
4. If hydrant is to be barricaded, no barricade shall be constructed in front of
the hydrant outlets (Figure 2, shaded area).
5. The exact location of barricades may be changed by the field inspector
during a field inspection.
6. The steel pipe above ground shall be painted a minimum of two field
coats of primer.
7. Two finish coats of "traffic signal yellow" shall be used for fire hydrant
barricades.
8. Figure 3 shows hydrant hook up during fireground operations. Notice
apparatus (hydra- assist - valve) connected to hydrant and the required
area. Figure 3 shows the importance of not constructing barricades or
other obstructions in front of hydrant outlets.
44
H. Private fire protection systems for rural commercial and industrial
development
Where the standards of this regulation cannot be met for industrial and
commercial developments in rural areas, alternate proposals which
meet NFPA Standard 1142 may be submitted to the Fire Marshal for
review. Such proposals shall also be subject to the following:
1: The structure is beyond 3,000 feet of any existing,
adequately -sized water system.
a. Structures within 3,000 feet of an existing, adequately -
sized water system, but beyond a water purveyor
service area. will be reviewed on an individual basis.
2. The structure is in an area designated by the County of Los
Angeles' General Plan as rural non - urban.
Blue reflective hydrant markers replacement policy
1. Purpose: To provide information regarding the replacement
of blue reflective hydrant markers, following street
construction or repair work.
a. Fire station personnel shall inform Department of Public
Works Road Construction Inspectors of the importance
of the blue reflective hydrant markers, and encourage
them to enforce their Department permit requirement,
that streets and roads be returned to their original
condition, following construction or repair work.
b. When street construction or repair work occurs within
this Department's jurisdiction, the nearest Department
of Public Works Permit Office shall be contacted. The
location can be found by searching for the jurisdiction
office in the "County of Los Angeles Telephone
Directory" under "Department of Public Works Road
Maintenance Division." The importance of the blue
reflective hydrant markers should be explained, and the
requirement encouraged that the street be returned to
its original condition, by replacing the hydrant markers.
AR
TABLE 1 *
BUILDING SIZE
(First floor area)
Fire Flow *(1) (2)
Duration
Hydrant Spacing
Under 3,000 sq.
ft.
1,000 GPM
2 hrs.
300 ft.
3,000 to 4,999 sq.
ft.
1,250 GPM
2 hrs.
300 ft.
5,000 to 7,999 sq.
ft.
1,500 GPM
2 hrs.
300 ft.
8,000 to 9,999 sq.
ft.
2,000 GPM
2 hrs.
300 ft.
10,000 to 14,999 sq.
ft.
2,500 GPM
2 hrs.
300 ft.
15,000 to 19,999 sq.
ft.
3,000 GPM
3 hrs.
300 ft.
20,000 to 24,999 sq.
ft.
3,500 GPM
3 hrs.
300 ft.
25,000 to 29,999 sq.
ft.
4,000 GPM
4 hrs.
300 ft.
30,000 to 34,999 sq.
ft.
4,500 GPM
4 hrs.
300 ft.
35,000 or more sq.
ft.
5,000 GPM
5 hrs.
300 ft.
* See applicable footnotes below:
(FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH
RESIDUAL PRESSURE)
(1) Conditions requiring additional fire flow.
a. Each story above ground level - add 500 GPM per story.
b. Any exposure within 50 feet - add a total of 500 GPM.
c. Any high -rise building (as determined by the jurisdictional building
code) the fire flow shall be a minimum of 3,500 GPM for 3 hours at 20 psi.
d. Any flow may be increased up to 1,000 GPM for a hazardous
occupancy.
(2) Reductions in fire flow shall be cumulative for type of construction and a
fully sprinklered building. The following allowances and /or additions
may be made to standard fire flow requirements:
a. A 25% reduction shall be granted for the following types of
construction: Type I -F.R, Type II -F.R., Type 11 one -hour, Type II -N,
EEO
Type III one -hour, Type III -N, Type IV, Type IV one hour, and Type
V one - hour. This reduction shall be automatic and credited on all
projects using these types of construction. Credit will not be given
for Type V -N structures (to a minimum of 2,000 GPM available fire
flow).
b. A 25% reduction shall be granted for fully sprinklered buildings (to a
minimum of 2,000 GPM available fire flow).
c. When determining required fire flows for structures that total 70,000
square feet or greater, such flows shall not be reduced below 3,500
GPM at 20 psi for three hours.
47
Exhibit "E"
Zoning Ordinance
On file with the City Clerk
Exhibit "F"
Santa Monica Sign Code
On file with the City Clerk
Exhibit "G"
Construction Mitigation Plan
(within Exhibit "D ")
Exhibit "H"
Assignment and Assumption Agreement
Recording Requested By and
When Recorded Mail To:
Hardin Larmore Kutcher & Kozal, LLP
1250 6 Street, Suite 200
Santa Monica, CA 90401
Attn: Kenneth L. Kutcher
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made
and entered into by and between SEVENTH AND ARIZONA, LLC, a California limited
liability company ( "Assignor "), and a
( "Assignee ").
RECITALS
A. The City of Santa Monica ( "City ") and Assignor entered into that certain
Development Agreement dated , 2011 (the "Development
Agreement "), with respect to the real property located in the City of Santa Monica, State
of California more particularly described in Exhibit "A" attached hereto (the "Project
Site ").
B. Assignor has obtained from the City certain development approvals and
permits with respect to the development of the Project Site, including without limitation,
approval of the Development Agreement and a vesting parcel map for the Project Site
(collectively, the "Project Approvals ").
C. Assignor intends to sell, and Assignee intends to purchase, the Project
Site.
D. In connection with such purchase and sale, Assignor desires to transfer all
of the Assignor's right, title, and interest in and to the Development Agreement and the
Project Approvals with respect to the Project Site. Assignee desires to accept such
assignment from Assignor and assume the obligations of Assignor under the
Development Agreement and the Project Approvals with respect to the Project Site.
THEREFORE, the parties agree as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
Assignor's right, title, and interest in and to the Development Agreement and the Project
Approvals with respect to the Project Site. Assignee hereby accepts such assignment
from Assignor.
2. Assumption. Assignee expressly assumes and agrees to keep, perform,
and fulfill all the terms, conditions, covenants, and obligations required to be kept,
performed, and fulfilled by Assignor under the Development Agreement and the Project
Approvals with respect to the Project Site.
3. Effective Date. The execution by City of the attached receipt for this
Agreement shall be considered as conclusive proof of delivery of this Agreement and of
the assignment and assumption contained herein. This Agreement shall be effective
upon its recordation in the Official Records of Los Angeles County, California, provided
that Assignee has closed the purchase and sale transaction and acquired legal title to
the Project Site.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth next to their signatures below.
"ASSIGNOR"
SEVENTH AND ARIZONA, LLC,
a California limited liability company
"ASSIGNEE"
RECEIPT BY CITY
The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by
the City of Santa Monica on this _ day of
CITY OF SANTA MONICA
By:
Planning Director
EXHIBIT'S"
LOCAL HIRING PROGRAM
Local Hiring Policy For Construction. Developer shall implement a local hiring policy
(the "Local Hiring Policy ") for construction of the Project, consistent with the following
guidelines:
Purpose. The purpose of the Local Hiring Policy is to facilitate the employment
by Developer and its contractors at the Project of residents of the City of Santa
Monica (the "Targeted Job Applicants "), and in particular, those residents who
are "Low- Income Individuals" (defined below) by ensuring Targeted Job
Applicants are aware of Project construction employment opportunities and have
a fair opportunity to apply and compete for such jobs.
2. Findings.
a. Approximately 73,000- 74,000 individuals work in the City. The City has a
resident labor force of approximately 56,800. However, only about one -
third (32.2 percent) of the City's resident labor force works at jobs located
in the City, with the balance working outside of the City. Consequently, a
significant portion of the City's resident and non - resident work force is
required to commute long distances to find work, causing increased traffic
on state highways, increased pollution, increased use of gas and other
fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City
are forced to leave for work very early in the morning and return late in the
evening, often leaving children and teenagers alone and unsupervised
during the hours between school and the parent return from work outside
the area.
c. Absentee parents and unsupervised youth can result in increased
problems for families, communities and the City as a whole, including, but
not limited to, increased crime, more frequent and serious injuries, poor
homework accomplishments, failing grades and increased high school
dropout rates.
Of the approximately 45,000 households in the City, thirty percent are
defined as low- income households or lower, with eleven percent of these
households defined as extremely low income and eight percent very low
income. Approximately 10.5% of the City's residents are unemployed.
e. By ensuring that Targeted Job Applicants are aware of and have a fair
opportunity to compete for Project Construction jobs, this local hiring
policy will facilitate job opportunities to City residents which would expand
the City's employment base and reduce the impacts on the environment
caused by long commuting times to jobs outside the area.
3. Definitions.
a. "Contract" means a contract or other agreement for the providing of any
combination of labor, materials, supplies, and equipment to the
construction of the Project that will result in On -Site Jobs, directly or
indirectly, either pursuant to the terms of such contract or other agreement
or through one or more subcontracts.
b. "Contractor" means a prime contractor, a sub - contractor, or any other
entity that enters into a Contract with Developer for any portion or
component of the work necessary to construct the Project (excluding
architectural, design and other "soft" components of the construction of the
Project).
C. "Low Income Individual" means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income
d. "Median Income" means the median income for the Los Angeles
Metropolitan Statistical Area, as published from time to time by the City in
connection with its Affordable Housing Production Program pursuant to
SMMC section 9.56.
"On -Site Jobs" means all jobs by a Contractor under a Contract for which
at least fifty percent (50 %) of the work hours for such job requires the
employee to be at the Project site, regardless of whether such job is in the
nature of an employee or an independent contractor. On -Site Jobs shall
not include jobs at the Project site which will be performed by the
Contractor's established work crew who have not been hired specifically to
work at the Project site.
4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit "l,"
the Local Hiring Policy provides that the Targeted Job Applicants shall be
considered for each On -Site Job in the following order of priority:
a. First Priority: Low Income Individuals living within one mile of the Project;
b. Second Priority: Low Income Individuals living in census tracts throughout
the City for which 51 % or more of the households have an income that is
no greater than 80% of the Median Income;
G. Third Priority: Low Income Individuals living in the City, other than the first
priority and second priority Low Income Individuals; and
d. Fourth Priority: City residents other than the first priority, second priority,
and third priority City residents.
Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs
related to the construction of the Project, by Developer and its Contractors.
Outreach. So that Targeted Job Applicants are made aware of the availability of
On -Site Jobs, Developer or its Contractors shall advertise available On -Site Jobs
in the Santa Monica Daily Press or similar local newspaper. In addition,
Developer shall provide telephonic or email notice to two community based
organizations to be jointly selected by the Developer and the City. At least thirty
days prior to the commencement of construction, Developer's general contractor
shall meet with the head of each organization to discuss the types of construction
jobs available at the Project site.
7. Hiring. Developer and its contractor(s) shall consider in good faith all
applications submitted by Targeted Job Applicants for On -Site Jobs in
accordance with their normal practice to hire the most qualified candidate for
each position and shall make a good faith effort to hire Targeted Job Applicants
when most qualified or equally qualified as other applicants. The City
acknowledges that the Contractors shall determine in their respective subjective
business judgment whether any particular Targeted Job Applicant is qualified to
perform the On -Site Job for which such Targeted Job Applicant has applied.
Contractors are not precluded from advertising regionally or nationally for
employees in addition to its local outreach efforts.
8. Term. The Local Hiring Policy shall continue to apply to the construction of the
Project until the final certificate of occupancy for the Project has been issued by
the City.
Reference Contract No.
9507 (CCS) and
Ordinance No. 2378
(CCS)