sr-121311-7gCity 0( City Council Report
Santa mouien"
City Council Meeting: December 13, 2011
Agenda Item:
To: Mayor and City Council
From: David Martin, Director of Planning and Community Development
Subject: Development Agreement 11 DEV -011 to allow a new five -story mixed -use
development project consisting of 56 residential units and 4,159 SF of
ground floor commercial space.
Address: 401 Broadway
Applicant: Steve Henry, Fourth and Broadway, LLC
Recommended Action
Staff recommends the City Council:
1. Approve Development Agreement 11 DEV -011.
2. Introduce for first reading an ordinance adopting Development Agreement
11 DEV011.
Executive Summary
The applicant proposes a Development Agreement to allow a new mixed -use
development project located at 401 Broadway. The project involves the construction of
a five -story building (56 feet in height) consisting of 56 residential units (48 studios and
8 one - bedroom units) and 4,159 SF of ground floor commercial space with no on -site
parking provided. The two -level subterranean basement consists of commercial tenant
space and area for residential amenities. The project parcel area is 7,500 SF and is
located in the BSC -3 downtown core. The site is located in the City's Downtown
Parking Assessment District, one block from the future light rail terminus station at the
corner of 4th Street and Colorado Avenue.
Pursuant to the City's Interim Zoning Ordinance No. 2356 (CCS) ( "IZO "), this pipeline
project requires approval of a Development Agreement since it exceeds 32 feet in
height. The project was originally filed pursuant to a Development Review Permit prior
to the adoption of the IZO. Since this is a pipeline project which was not initially
required to be processed pursuant to a development agreement, Commission and
Council float -up reviews have not been undertaken.
The site is located in the Downtown Core land use designation and Downtown District of
the Land Use and Circulation Element (LUCE) of the General Plan. Project
development compliance is limited to the LUCE while other aspects of the project such
as height, parcel coverage, setbacks, and other standard zoning requirements will be
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established by the Development Agreement. As proposed, the project is designed to
comply with all Zoning Code development standards except building stepbacks, open
space, and loading space requirements.
Community benefits have been negotiated as part of the Development Agreement
including the following:
• An enhanced Transportation Demand Management (TDM) plan with measures
applicable to both the commercial and residential components of the project.
• A monetary contribution towards transit and circulation infrastructure in the
Downtown area.
• A project ground floor arcade that enhances the adjacent sidewalks providing
additional space for pedestrians at the street corner.
• One on -site affordable housing unit exceeding the minimum on -site requirement
pursuant to the City's Affordable Housing Production Program (five units on -site
required by AHPP, six units on -site provided in the project, therefore the sixth unit is
the community benefit).
• A minimum LEED® Silver certification as established by the LEED® Rating System
or a demonstrated equivalent sustainable design status.
• The implementation of roof - mounted photovoltaic solar panels.
• A local hiring provision to facilitate the employment of local workers during
construction.
Staff and the applicant agree in principal on the provision of a transportation
infrastructure contribution to the City that would support a range of transportation
improvements to the Downtown area, however disagree on the amount of the
contribution required for the project. The Planning Commission and staff believe a
contribution of $175,000 to support downtown improvements such as light rail
infrastructure, implementation of the Santa Monica Bike Action plan, anticipated 4th
Street streetscape improvements, and future electric vehicle charging stations in nearby
City Parking Structures would be appropriate for the proposed project. The applicant
believes a community benefits package including a transportation infrastructure
contribution of $50,000, provision to provide six on -site affordable housing units, and the
above mentioned benefits are appropriate.
The following issues should be considered by the City Council in its review of the
proposed project:
• Whether the proposed design and site plan are appropriate and compatible with the
neighborhood and the subject site.
• Whether the proposed plan and proposed community benefits are consistent with
the objective, goals, general land uses, and programs specified in the general plan.
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Background
On June 12, 2008, the applicant filed a Development Review permit application for a
four -story, commercial project with ground floor retail and general office on floors two -
four. An Environmental Impact Report was prepared for this previous project and
completed in September 2010. On January 6, 2011, the applicant revised the project
scope by replacing the general office space with 56 residential units. On March 11,
2011, the IZO establishing interim development procedures pending implementation of
the LUCE went into effect and required that projects over 32 feet in height within the
Downtown Core be developed pursuant to a Development Agreement. The subject
project, based on its 56 foot building height, was subsequently required to be processed
through a Development Agreement instead of a Development Review permit.
The project site is located in the BSC -3 Downtown Core on the northeast corner of 4th
Street and Broadway and consists of 7,500 SF of land area. The site is located in the
downtown area and is surrounded by commercial and residential uses. The property is
bounded by residential apartments to the north and east, retail uses to the south along
Broadway, and retail /office use to the west along 4th Street. The project is adjacent to
the Lido Building (1455 4th Street, Landmark, Art Deco), the Archstone apartment
building across the rear alley to the east, and across the street from the Bay Builders
Exchange Building (1501 4th Street, Landmark, Spanish Colonial Revival). City parking
structures 5 and 7 are located across 4th Street and on the southwest corner of 4th
Street and Broadway, respectively. The site is located across from Santa Monica Place
and the new Santa Monica Bike Center. The site is located in the City's Parking
Assessment District, and is one block north of the future light rail terminus station at the
corner of 4th Street and Colorado Avenue.
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Existing Conditions: NE Corner 4m Street + Broadway
The photos shown below further illustrate the surrounding project site.
Existing Auto Repair Facility
Lido Apartment Building (Landmark)
View along 4tn Street north of project site
Archstone Apartment Building to the East
Bay Builders Exchange Building (Landmark)
Commercial Office Building to West
Project Design History
The initial conceptual design had a distinctively commercial characteristic /appearance
that included a combination of glass curtain walls, repetitive bays, floor to ceiling glass,
and strip windows. The building lacked residential design elements such as balconies,
variation in facades and window types to define commercial and residential uses, and
recessed planes that distinguish different residential room types. The design lacked
adequate solar devices (sun shading elements) and residential amenities such as
private and common open space. The building design of the upper floors at the street
corner also needed further refinement. Below is the conceptual rendering of this initial
design.
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In working with staff, the applicant revised the project design to include improved fagade
variation, and residential design elements and amenities. The revised design shown
above was presented to the Planning Commission during their first review of the project
on October 19, 2011. The revised project added residential elements such as
balconies, eyebrow projections, limestone fagade dimensioned to resembled brick
patterns, and recessed punched windows. Despite these revisions, the Planning
Commission agreed with staff's concerns with the project's overall design, and
determined that design improvements were necessary prior to advancing the project for
City Council's consideration and continued the item. The applicant returned to the
Planning Commission on November 16, 2011 with a revised design based on
Commission comments. The revised plans addressed many of the Planning
Commission's concerns regarding pedestrian orientation and site compatibility given the
corner location and adjacency to historic properties. The Planning Commission voted
unanimously (6 -0) to recommend to City Council approval of the Development
Agreement based on the revised project design and recommendations related to the
project's community benefits.
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Discussion
Project Description
The applicant proposes a new mixed -use development project at the subject site. The
project involves the construction of a five -story building (56 feet in height) consisting of
56 residential units (48 studios and 8 one - bedroom units) and 4,159 SF of gross ground
floor commercial space. The average size of the studio units would be 360 SF. Based
on unit size, 44 of the total units are considered single room occupancy units (units not
exceeding 375 SF).
November 16, 2011 PC Hearing: 4th + Broadway Project Rendering
Located in the City's Downtown Parking Assessment District, the project is not required
to and will not provide any on -site parking spaces. Instead, a two -level subterranean
basement is proposed consisting of commercial space and area for residential
amenities. The first basement level would include 6,110 SF of gross commercial_ area
and would be internally connected to the ground floor commercial space, creating a bi-
level tenant space of approximately 9,813 SF of usable commercial space, including the
outdoor dining area. The 6,607 SF second level basement level would include a
resident movie screening room, storage, and separate secured bike locker parking
areas for residents (56 spaces) and commercial employees (15 spaces). Two unisex
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showers and a locker facility are provided for commercial employees adjacent to the
commercial employee bike parking area.
Design Elements ( Street Corner
The building design is modern /contemporary and is comprised of expansive glazing,
wood louvers, aluminum sun shading devices, painted steel frames, and clear glass
handrails. The building's street corner design includes steel framing around residential
units with expansive glazing above the ground floor, providing a prominent corner
element at a central intersection in the Downtown.
Street Corner Design Element
Pedestrian Orientation
The ground floor design exhibits a variety of pedestrian, oriented features, including
expansive storefront glazing facing both streets, a prominent corner retail entry, a
covered arcade including outdoor seating for restaurant use, and short -term bicycle
parking for commercial and residential visitors. The ground floor glazing is recessed
from the 4th Street and Broadway elevations, creating a covered arcade at the street
corner. White painted steel frame boxes and the wood louvers found on upper levels
are also provided slightly below the second floor line. These elements reduce the height
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and scale of the 18 foot ground floor height, orienting the ground floor space with the
pedestrian level, and providing a strong connection between the ground floor and upper
levels.
The ground floor storefront is setback seven feet from the Broadway sidewalk, and
designed with operable clear stacking panel doors that provide a connection between
the interior and exterior spaces. The ground floor facing 4th Street is setback 19.5 feet,
and includes landscaping adjacent to the residential entry facing 4th Street.
- - - - -- Sidewalk-- - - - - -- Ground Floor Setback at Street Corner
Results in Expanded Sidewalks for Pedestrians
A restaurant use is anticipated for the bi -level commercial space, and would utilize a
portion of the ground floor arcade as outdoor dining along Broadway. The outdoor
dining area ( +/- 657 SF) would be entirely on private property underneath the covered
arcade, and could potentially be expanded into the public right -of -way as sidewalk
dining subject to the City's standard outdoor dining requirements. Moreover, the ground
floor commercial space could be occupied by other neighborhood serving commercial
uses. The storefont facing Broadway would be designed with operable clear stacking
panel doors that provide a connection between the commercial space and the sidewalk.
Eighteen short -term public bicycle parking spaces would be provided for commercial
patrons and residential visitors on the ground floor along Broadway toward the rear of
the building. This dedicated space for bike parking along the Broadway elevation is
currently untreated and needs further refinement. The Commission recommended that
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the Architecture Review Board pay particular attention to this portion of the building
during design review.
Considering that the project is located on a prominent street corner in the Downtown
with considerable pedestrian activity, recessing the commercial storefront at the ground
floor provides additional space for pedestrian access and passive use of the property,
and expands the existing sidewalks along 4th Street and Broadway thereby improving
pedestrian circulation adjacent to the site. As mentioned, the project would provide a
ground floor setback of 19.5 feet from the 4th Street sidewalk and seven feet from the
Broadway sidewalk at the street corner. This would effectively widen the existing 14
and 16 foot sidewalks for pedestrians along 4th Street and Broadway, respectively.
Overall, the ground floor design is consistent with urban design and LUCE principles,
and provides the physical improvement of wider sidewalks for the community as a
benefit to the downtown area.
Building Mass and Design Compatibility
The proposed project floor area ratio is 2.23 and complies with the maximum 3.0 FAR
permitted in the BSC -3 district. This includes the 50% residential square foot reduction
provided for the district. The project also proposes two subterranean floors consisting
of commercial space and area for residential amenities. As established by the Interim
Zoning Ordinance, this below -grade floor area is exempt from floor area ratio
calculations.
The proposed building height of 56 feet, excluding roof projections, is similar to the
height of the adjacent mixed -use residential buildings. The adjacent Lido building to the
north ranges from approximately 51 feet in height at the street line to 56 feet along the
rear alley. The adjacent Archstone apartment building across the rear alley to the east
is approximately 55 feet in height. The building mass, particularly along 4th Street,
closely follows the traditional building facades of the Lido building and Archstone
apartments. The building visually reinforces the existing building facade line of 4th
Street, resulting in the building's compatibility with existing buildings in the area in terms
of building shape and form. The adjacent Lido building is built entirely at the street line,
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and the proposed building would continue the fagade line /street wall to provide a
seamless transition between the two buildings. Staff and the Commission believe
enhancing the street wall is appropriate for this site in the downtown, and the overall
building mass is appropriately scaled based on the existing height and mass of adjacent
properties.
Furthermore, the building would be setback five feet from the common property line
shared with the Lido Building in observation of the existing windows on this residential
structure. The setback benefits both the Lido Building and the project as it allows for
adequate air circulation and ventilation between the two structures. Given the existing
Lido Building setback, this results in 10 feet of separation between the project and Lido
Building window openings. In addition, the setback would preserve views of the Lido
Building in recognition to the building's historic designation, including character defining
architectural detail and terracotta ornaments on the front fagade.
Although the project does not directly relate to the architectural style of the adjacent
historic buildings, the size of the project is compatible with the Lido Building, and the
project's siting preserves and respects the Lido building's historic setting.
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Open Space
Eight units facing 4th Street are designed with private balconies while units facing
Broadway and the interior side are designed with large operable clear stacking panel
windows (with guardrails) to provide adequate circulation and visual connection to the
outdoors. Common open space for residents would be provided on the roof deck,
including photovoltaic solar panels designed to function has shading devices for the
open space areas. The roof deck level would also be designed with a green roof that
would enhance the common open space area for residents.
Project Parking
The project is located in the City's Downtown Parking Assessment District and is not
required to provide on -site parking pursuant to City parking standards (45 residential
spaces based on parking standards). The Developer will be subject to the Parking
Developer Fee (Resolution No. 7286 (CCS).
Zoning Ordinance Development Standards
As mentioned, the proposed project is compliant with applicable zoning requirements
with the exception of the following standards
9.04.08.15.060(b) Building Stepbacks: Any portion of a building elevation
fronting on 4th Street above 30 feet in height shall be stepped back at a 36.9
degree angle measured from the horizontal. This requirement results in a tiered
stepback of floors 3 -5. Portions of the building exceed this envelope.
9.04.10.02.040 Building Volume Envelope: Buildings shall not project beyond the
building volume envelope which requires additional setbacks /stepbacks as the
building increases in height. As mentioned, the limited parcel depth, size, and a
corner lot location where the requirement applies to both street sides, presents
challenges in designing a practical floor plan while achieving floor area and
complying with overall building height.
9.04.10.02.111(d) Private Open Space: For residential uses in commercial
districts, residential units exceeding 375 SF in area requires 50 SF of private
open space, defined as outdoor open space designed adjacent to, accessible
from., and at the same elevation as the primary space of the residential unit. For
the project, 12 of the 56 units proposed are subject to this requirement. Of the
12 units, 8 units are designed without private open space or balconies as defined
above.
9.04.10.10.030(e) Loading Space: One loading space is required for the project
and is not provided. Area between the rear building and rear alley (5 feet wide)
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can be utilized by delivery vehicles, however does not comply with code required
dimensions (10'x20'xl4'h clearance). Loading access is provided from the rear
alley to the ground floor commercial space through the mechanical room.
The project includes modest variations above zoning requirements, which should be
considered when analyzing the level of community benefits for the project.
Zoning and IZO Comparison
A project designed pursuant to the IZO as a Development Review Permit would consist
of a two -story mixed -use building with a floor area ratio of approximately 2.0 (without
50% residential reduction), a maximum height of 32 feet, and no stepbacks. Using the
proposed project floor plan, this project would result in approximately 14 residential
units. In terms of floor area, the project would have at least 15,000 square feet of actual
floor area without any building setbacks. Including the 12,719 SF basement floors, this
project would have a total of approximately 27,719 SF of actual floor area.
The current project includes a total of 42,257 square feet of actual floor area (including
basement floors). Below is a chart that provides the differences between the proposed
project, the current zoning, and IZO requirements.
Development Standard
Proposed Project
Current Zoning
IZO Base Project
Building Height
56' -0"
56 Feet
32 Feet
Number of Stories
5 Stories
Unlimited due to residential
2 Stories
FAR
2.23 FAR
3.0 FAR
+1-2.0 FAR due to
height limitation of 32
feet.
Total Actual Floor Area
41,969 SF
-
+/- 27,719 SF
Total Units
56 units
+/_ 14 units
Considering that this project is a pipeline project which was converted to a development
agreement pursuant to the IZO, an economic study of the proposed project compared to
a project developed pursuant to a Development Review Permit was not provided.
Development Agreement Overview
A development agreement is a contract between the City and a developer that
authorizes the type and amount of development that may occur within a specific period
of time. Development agreements provide developers with guaranteed development
rights in exchange for negotiated public benefits. A development agreement must
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comply with the Land Use and Circulation Element, but can establish different
development standards than provided by zoning regulations.
A development agreement can provide greater latitude to advance local planning
policies compared to the Development Review Permit process. While a development
agreement is an alternative to the standard development approval process, in practice it
is similar to other public review processes where the City Council makes the final
decision with the exception that the City Council has more discretion in imposing
conditions and requirements on the proposed project since the Development
Agreements are adopted by ordinance and are negotiated contracts.
As mentioned, since this is a pipeline project which was not initially required to be
processed pursuant to a development agreement, Commission and Council float -up
reviews have not been undertaken.
The proposed development agreement is included as Attachment B.
Community Benefits
The applicant and City staff have agreed on the following community benefits:
Transportation Demand Management Plan — The following TDM plan is comprised of
components that apply to the entire project, the commercial component only, and the
residential component only:
1. Measures Applicable to the Entire Project
• Transportation Information Center (TIC): The TIC will include information for
employees, visitors, and residents about local public transit services and bicycle
information
• Public Bicycle Parking. Developer shall provide bicycle parking for public use in
the amount of 12 short -term bicycle parking spaces for commercial patrons and 6
short -term bicycle spaces for resident visitors (18 total public bike spaces), as
shown on the Project Plans.
• Marketing: Promotion of ridesharing through periodic newsletters and other
communications to residential and commercial tenants and at least one annual
rideshare event.
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• On -Site Transportation Coordinator: Coordinator to manage and be responsible
for implementing, maintaining, and monitoring the TDM plan.
2. Measures Applicable to the Commercial Component
• AVR Requirements: Achieve an Average Vehicle Ridership (AVR) of 1.75 by the
third year after issuance of Certificate of Occupancy for the project.
• Transportation Demand Management Association (TMA): Property owner and
tenant required to participate in formation of a geographic -based TMA that may
be defined by the City.
• Employee Transit Subsidy: Developer shall require in all tenant leases it
executes as landlord that each tenant offer its employees at no costa monthly
Metro EZ Transit Pass (or a similar bus pass if the EZ Transit Pass is no longer
available).
• Employee Secure Bicycle Storage. Developer shall provide secure bicycle
parking for commercial employees in the amount of 15 long -term spaces as
shown on the Project Plans. For the purpose of this Section, secure bicycle
parking shall mean bicycle lockers, an attended cage, or a secure parking area.
Commercial employee secure bicycle storage shall be provided in an area
separate from the secure bicycle storage for residents.
• Employee Shower and Locker Facility. A minimum of two unisex showers and
locker facility adjacent to a commercial use 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.
• Employee Flex -Time Schedule. The Developer shall require in all commercial
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.
• Employee Guaranteed Return Trip: Guaranteed return trip for employees who
rideshare at no cost to employee when emergency situation requires.
3. Measures Applicable to the Residential Component
• Transit Welcome Package for Residents: Welcome package for new residents
containing information on transit, bicycle facilities, and local amenities.
• Convenient and Secure Bicycle Storage: Secure bike storage for a minimum of
one space per residential unit, or 56 bicycles.
• Marketing and Outreach to Downtown Employers and Employees. Developer
shall prepare and implement a marketing and outreach plan designed to notify
Downtown employers and their employees of the Project's residential component
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for the purpose of encouraging those that work in the Downtown area to consider
residing in the Project.
Urban Design/ Physical Improvements
The project would provide a ground floor setback of 19.5 feet along 4th Street and 7 feet
along Broadway at the street corner. This would effectively widen the existing 14 and
16 foot sidewalks for pedestrians along 4th Street and Broadway, respectively, and
would provide considerable additional sidewalk space at the street corner.
LEEDO Silver Certification
Developer shall design and construct the project to achieve a minimum LEEDO Silver
certification as established by the LEEDO Rating System, or a demonstrated equivalent
sustainable design status.
Solar Panels
The project would include roof - mounted photovoltaic solar panels. The use of solar
panels is considered both a project and community benefit since it would provide a
renewable source of energy for the building, and reduce overall energy consumption
and energy that is needed for the downtown area.
Local Hiring Provision
A local hiring provision to facilitate the hiring of local workers during construction would
be implemented
Pending Community Benefits for Discussion
Downtown Transit and Circulation Infrastructure Contribution
Staff and the applicant agree in principal on the provision of a transportation and
circulation infrastructure contribution to the City that would support a range of
transportation improvements to the Downtown area, however disagree on the amount of
the contribution required for the project. The Planning Commission and staff believe a
contribution of $175,000 would be appropriate to support downtown transportation
improvements that may include light rail infrastructure, implementation of the Santa
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Monica Bike Action Plan, anticipated 4th Street streetscape improvements, and future
electric vehicle charging stations in nearby City Parking Structures
The applicant believes that the requested $175,000 is high when considering the overall
community benefits package. Instead, the applicant is willing to provide a transportation
infrastructure contribution of $50,000, similar to the light rail contribution provided for the
recent 7th /Arizona Development Agreements. However, each development agreement
negotiation is unique. Moreover, the 7th /Arizona contribution solely addressed light rail
infrastructure. The requested amount for this project would support a range of
transportation improvements for the downtown area. Moreover, regarding light rail
contributions, staff believes that contributions by a downtown project within a '/4 mile
radius of the future station at 4th Street and Colorado should be higher when compared
to properties that are more distant from the station. Staff believes that this is
appropriate for the light rail contribution to be higher given its close proximity to the
future station at 4th Street and Colorado Avenue. A higher light rail contribution alone is
appropriate since the project would receive greater benefit for project residents and
employees.
Moreover, the recommended contribution may support improvements such as
implementation of the bike action plan (bike /shared lane markings, bike parking /corral,
wayfinding, etc.) in the downtown area pursuant to the proposed Santa Monica Bike
Action Plan, anticipated 4th Street streetscape improvements (widened sidewalks,
possible curb extensions, wayfinding elements, upgraded pavements, special lighting,
etc.), and installation costs for future electric vehicle charging stations in the Downtown.
Affordable Housing Production Program
The applicant proposes to satisfy the City's Affordable Housing Production Program
(SMMC Section 9.56) (AHPP) by providing six very -low income units on -site. According
to the AHPP, 10% of the units or 5.6 units can be provided on -site, where the fractional
0.6 affordable unit can be satisfied by the payment of an affordable housing fee for that
fractional unit (0.75 or above is treated as a whole unit that must be provided). For this
project, the fractional amount would equal $172,202 (0.6 x $297,003 City's Affordable
Unit Dev. Cost) based on current rates. Instead, the applicant has elected to provide a
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whole affordable unit and forego the option of providing the payment for the fractional
unit.
However, the applicant would provide the on -site units only if the provision of on -site
units is deemed to be a "community benefit ". The applicant has provided an Affordable
Housing Fee Alternative analysis (Attachment D) that estimates the additional cost of
providing six affordable units on -site compared to providing the Affordable Housing Fee.
According to the chart, the applicant cost of providing the units is between $1,164,771
(4% cap rate) and $964,171 (4.5% cap rate). The Affordable Housing Fee for the
project would be approximately $686,239 (25,091 SF x $27.35 rate updated 8/15/11)
based on current rates.
However, staff does not believe that the provision of Code - compliant affordable housing
should be characterized as a community benefit. To constitute a community benefit, an
applicant needs to do more than meet the minimum requirements of the AHPP, even if
these requirements are met through the provision of on -site affordable units rather than
through the payment of affordable housing fees. Treating the provision of on -site
affordable housing consistent with Code as constituting a community benefit has
implications well beyond this project.
Consequently, only the provision of the sixth affordable unit on -site rather than providing
a fee for a fractional unit should be considered a community benefit.
Nonetheless, staff acknowledges that providing the code- required five on -site affordable
housing constitutes an important project benefit since it would result in the provision of
more housing at a deeper affordability level than the payment of the affordable housing
fee. Moreover, providing units on -site would result in the development of affordable
units more quickly. Staff also recognizes that the provision of on -site affordable housing
units is more costly to the developer than payment of the affordable housing fee. Thus,
even characterized properly as a project benefit, the provision of on -site affordable
housing should certainly factor favorably in the Council's review of this application.
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Based on the project's bedroom composition, the AHPP requires a minimum unit size of
500 SF for on -site affordable units since the project consists of studio units. However,
because the average project unit size is 355 SF, the applicant requests a modification to
this size requirement. Staff believes that this is a reasonable request given that the
minimum size requirement exceeds the average size of the project units. The applicant
has indicated that units 201, 202, 203, 301, 302, and 303 would be dedicated as the
affordable units (336 SF units).
Considering the size of the project and modest requests to exceed zoning requirements,
and the project being a pipeline project per the IZO, the level of community benefits
consisting of a TDM program, physical improvements, a transportation circulation
infrastructure contribution of $175,000, LEED Silver Certification, use of solar panels, a
local hiring provision, and an additional on -site affordable housing unit is appropriate for
this project. Moreover, significant "project benefits" include but are not limited to code
required Childcare Linkage and Cultural Arts fees, and the proposal to provide on -site
affordable housing.
Planninq Commission Action
At the October 19, 2011 Planning Commission hearing, the Commission continued the
project to allow the applicant to address a broad range of design concerns to better
address the importance of this site at a prominent corner intersection in the downtown.
The Commission directed the applicant to improve pedestrian orientation, consider
compatibility with adjacent historic buildings, and improve the design features related to
the covered arcade.
At the November 16, 2011 Planning Commission hearing, the Commission held a
design discussion and after reviewing a substantially revised project that addressed
many of the above design concerns, recommended that the City Council approve the
proposed Development Agreement. The Planning Commission prepared the following
recommendations for City Council's consideration:
• Project Design: The Commission recommended that the Architecture Review
Board pay particular attention to the refinement and design details of the rear
elevation, further refinement to the east end of the building along Broadway
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adjacent to the designated short -term bicycle parking area, and development of
the roof deck area, specifically the design of the common open space and solar
panel structures.
• Community Benefit: A Downtown Transportation and Circulation Infrastructure
Improvement Contribution of $175,000 shall be provided to support transit and
circulation improvements in the downtown area. The Commission agreed with
staff on the amount of the contribution, and in addition to light rail infrastructure
improvements and the implementation of the bike action plan, recommended that
the contribution be used toward a broader range of area improvements such as
downtown streetscape and park /open space improvements. As mentioned
earlier in this report, the applicant disagrees with this contribution amount. The
Commission agreed that the recommended $175,000 SF would be appropriate
for this particular project considering that the project is a pipeline project and
largely compliant with zoning requirements.
• Off -Site Parking Lease Provision: To address project parking demand, the
developer agreed (to staff's initial request) to undertake, in good faith effort, to
identify and lease, if available, a minimum of 20 parking spaces within the
Downtown area for building tenants in need of parking to ensure that project
parking demand would be met by the developer. The Planning Commission,
however, recommended that this provision be eliminated based on the
assumption that the demand for residential parking would be market - driven,
would thereby encourage the developer to lease off -site parking, and that the
provision was unnecessary. Upon further analysis, staff agrees with the
Commission and this provision has been removed from the Agreement.
• TDM Plan: Unbundling of Parking: The proposed TDM plan included a provision
that any leased off -site parking spaces for project tenants and their employees
be leased separate from residential units and separate from commercial spaces.
Typically, this provision seeks to unbundle "project" parking provided on -site to
allow for shared use of parking based on demand. Since on -site parking is not
provided for this project, the Commission believed this provision would not be
appropriate. Staff agrees with the Commission and the measure has been
removed.
• Residential Unit Mix: The Commission discussed the desire for a more diverse
mix of residential unit sizes (one, two, and three bedrooms) in the City due to the
recent increase of projects proposing SRO /studio units. The Commission
discussed how a diverse mix of housing units is critical in establishing
neighborhoods. It was discussed that perhaps smaller units would be
appropriate due to the project's location and that since the project did not include
on -site parking, smaller units would be appropriate for the project. It was also
discussed that the desire for larger units should be an area policy discussion for
the Downtown, and should not be determined through this specific project. The
Commission agreed that for this particular site, the mix of residential units
proposed was adequate.
20
• Minor Modifications: The Commission recommended that the provision to allow
a reduction of up to eight residential units, considered as a minor modification, be
removed in efforts, to provide the developer with flexibility in reducing the number
of units to increase the size of the units. Staff agrees with the Commission and
the language in the Agreement has been modified to provide greater flexibility.
• Limitations on Delivery Vehicle Size: The Commission recommended including a
provision that limits the size of delivery vehicles for commercial or residential
uses due to the substandard loading space proposed adjacent to the rear alley.
However, staff believes that a condition that restricts larger delivery vehicles
(such as an 18 wheel semi - tractor trailer) from delivering to the project site would
be difficult to enforce and would therefore be ineffective. City code allows for
deliveries to occur within alleys specifically in the downtown, and it would be
difficult to monitor whether the larger delivery vehicles (which are permitted to
unload in the alley) are unloading specifically to the project site. Therefore, staff
does not recommend a condition on limiting the size of delivery vehicles for this
project.
• Average Vehicle Ridership: For purposes of determining AVR, the Commission
recommended that zero emission vehicles (electric vehicles) shall be calculated
as vehicles arriving at the worksite. Language in the current ordinance, which
was based more on air quality management and less on traffic - related issues,
states that zero emission vehicles shall not be calculated as vehicles arriving at
the worksite. Staff supports this recommendation since this would improve the
method of calculating AVR, and the change would be consistent with the
forthcoming Transportation Management Ordinance update. The language in the
DA has been revised to reflect this recommendation.
• Affordable Housing Production Program: The Commission agreed with staff and
recommended that the five affordable housing units proposed on the project site
fulfilling the on -site AHPP requirement is considered a project benefit, and that
the sixth on -site unit provided is considered a community benefit. For the
reasons expressed in this staff report, it is the Commission and staff's position
that the provision of Code - compliant affordable housing should not be
characterized as a community benefit but instead as an important project benefit.
LUCE Consistency
401 Broadway is located in the Downtown Core land use designation and within the
LUCE Downtown District. The LUCE vision for the Downtown Core seeks to maintain
and enhance the Downtown area as a thriving, mixed -use urban environment in which
people can live, work, be entertained, and be culturally enriched. The Downtown Core
designation and District allows for the broadest mix of uses and activities, and seeks to
provide new housing units in mixed -use projects.
21
The proposed Development Agreement is consistent with the objectives, policies,
general land uses and programs specified in the general plan and any applicable
specific plan, in that consistent with LUCE Policy D7.1 of the Downtown District, the
proposed mixed -use project balances a broad mix of uses that creates dynamic activity
in both the daytime and evening hours including retail and high- density residential uses
in the Downtown. Consistent with Policy D7.2, the project encourages local- serving
uses that are an integral part of complete neighborhoods and support an overall trip
reduction strategy. The proposed project is also consistent with Policy D8.7 in that it
encourages mixed -use developments to have active ground floor uses that face the
boulevard with residential uses located on the upper floors. Consistent with Policy D9.1
which seeks to design and manage streets to be an integral part of the urban open
space in the Downtown, the project would widen sidewalks at the key intersection of 4th
Street and Broadway, and provide the opportunity for outdoor dining that would help to
activate the street. The implementation of a Transportation Demand Management
(TDM) plan in efforts to reduce vehicle trips in the area and reduce associated parking
demand is consistent with LUCE Circulation Policy T19.2 which seeks appropriate TDM
requirements for new development. Furthermore, the project is consistent with LUCE's
overall land use policies by providing community benefits for the area, including but not
limited to, a transit contribution for the downtown that would support Exposition Light
Rail station improvements, and a TDM plan that provides bicycle facilities and transit
subsidies for commercial employees.
Alternative Actions:
In addition to the recommended action, the City Council could consider the following
with respect to the project:
Al. Continue discussion for analysis of additional options with agreement from
the applicant.
A2. Not enter into the Development Agreement, and allow the applicant to pursue
a project under a Development Review Permit that is designed less than 32
feet in height, pursuant to the Interim Zoning Ordinance.
0414
Environmental Analysis
The proposed five -story, 56 -unit, mixed -use project is exempt from the provisions of the
California Environmental Quality Act pursuant to CEQA Section 21159.24 which
exempts infill housing projects from CEQA if a project is consistent with the applicable
general plan and a community level environmental review was previously certified or
adopted in the last five years. Specifically, the proposed project meets all of the criteria
prescribed in Section 21159.24(a):
1. The proposed project is a residential project on an infill site. Per Section
21159.24(d), a residential project is defined as a project with residential units and
primarily neighborhood serving retail /commercial uses that do not exceed 15
percent of the total floor area. These neighborhood serving retail /commercial uses
will be small -scale general or specialty establishments primarily serving residents
or employees of the neighborhood and will include but not be limited to retail or
restaurant use. The proposed project includes approximately 25,091 square feet
of residential floor area and approximately 4,159 square feet of commercial use for
a total project area of approximately 29,250 square feet. The commercial space
does not exceed 15 percent of total floor area, and therefore, the proposed project
meets the definition of a residential project.
2. The proposed project is located within an urbanized area as defined in CEQA
Section 21071. Additionally, the project site has been previously developed and is
surrounded by existing development.
3. The project site satisfies the criteria of Section 21159.21 in that the project is
consistent with the LUCE and the City's Zoning Ordinance in effect at the time that
the application was deemed complete. In addition, the project can be adequately
served by existing utilities, and the project applicant will pay all applicable in -lieu
and development fees. The project site also does not contain wetlands or wildlife
habitat; is not listed as a hazardous waste site pursuant to Section 65952.5 of the
Government Code; and will be subject to a Phase I environmental site
assessment. The proposed project will have no impact on historic resources in the
area. The project site is not subject to wild land fire hazard, high risk of fire or
explosion, or significant public health risk. The project site is also not located within
a delineated earthquake fault zone or seismic hazard zone or a landslide flood
plain, and flood way area; on developed open space; or within the boundary of a
state conservancy.
4. Community level environmental review was adopted within five years of the date of
the project application. Specifically, a Final EIR for the LUCE was certified in June
2010.
5. The project site is approximately 0.17 acres and does not exceed the threshold of
four acres.
23
6. The project includes 56 units and does not exceed the threshold of 100 residential
units.
7. The proposed project will include five very-low income units and /or pay affordable
housing fees.
8. The proposed project is located within one -half mile of a major transit stop at
Fourth Street and Santa Monica Boulevard. This stop is served by at least six Big
Blue Bus routes including Lines 1, 2, 3, 4, 5, and 9 with 15 minute headways or
less during the morning and afternoon peak commuter hours.
9. The proposed project is approximately 29,538 square feet and does not exceed
100,000 square feet.
10. The proposed project provides the equivalent density of 325 units per acre and
thus, is presumed to promote higher density infill housing.
Furthermore, in accordance with Section 21559.24(b), there is no reasonable possibility
that the project will have a project- specific, significant effect on the environment due to
unusual circumstances. There is no feature of this project which would distinguish it
from any other mixed -use project in this area or other projects in the exempt class. No
substantial changes with respect to the circumstances under which the project is being
undertaken have occurred since the community -level environmental review (LUCE Final
EIR) was certified. In addition, no new information has become available regarding the
project and its circumstances that was not known at the time of the LUCE Final Elk.
Therefore, based on the above, the proposed project is exempt from CEQA pursuant to
Section 21559.24.
Notwithstanding this CEQA determination, because the existing structure proposed for
demolition is over 40 years old, a permit to demolish the existing improvements will not
be issued until the Landmarks Commission reviews the demolition permit application
and all requirements of SMMC Section 9.04.10.16.010 (d) are met. The City's
Landmarks Commission retains jurisdiction to review the demolition permit application
and to nominate the improvement as a City Landmark or Structure of Merit pursuant to
the designation criteria and procedures contained in Chapter 9.36 of the Santa Monica
Municipal Code. At the time this report was prepared, the Landmarks Commission had
not reviewed the demolition permit for this property.
24
Financial Impacts & Budget Actions
Except as already charged and collected for the applicant's Development Review permit
application, the City has not charged the applicant any additional fees for filing or
processing of the draft Development Agreement. There are community benefits that the
Applicant will be required to provide pursuant to the Development Agreement
Amendment negotiations. There are no anticipated financial or budgetary impacts to the
City at this time.
Prepared by: Steve Mizokami, Associate Planner
Approved:
(avid Martin, Director
Planning and Community Development
Attachments:
Forwarded to Council:
Rod Gould
City Manager
A. Draft Ordinance Adopting Development Agreement 11 DEV011
B. Development Agreement Findings
C. Proposed Development Agreement
D. Public Notification
E. Applicant's Affordable Housing Fee Alternative Chart
F. Project Plans and Renderings
25
ATTACHMENT A
ORDINANCE ADOPTING
DEVELOPMENT AGREEMENT 11DEV011
+3o•
CA:f\atty \muni\ laws \barry\BroadwayDAOrd 12 -13 -11
City Council Meeting 12 -13 -11 Santa Monica, California
ORDINANCE NUMBER _ (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
SANTA MONICA, A MUNICIPAL CORPORATION AND FOURTH AND
BROADWAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AND
ROBERT A. GRIGSBY AS SUCCESSOR TRUSTEE OF THE JESSE L. AND
LUDONA GRIGSBY REVOCABLE TRUST
WHEREAS, Robert A. Grigsby as Successor Trustee of the Jesse L. and
Ludona Grigsby Revocable Trust dated November 6, 1985 is the owner of the
property located at 401 Broadway; and
WHEREAS, Fourth and Broadway, LLC, a California Limited Liability Company
( "Developer ") has an equitable interest in 401 Broadway; and
WHEREAS, on June 12, 2008, Developer filed an application for a
Discretionary Review Permit ( "DRP ") for a four -story commercial building and
subsequently filed revised plans for a five -story mixed -use residential /commercial
project which will include rental housing and primarily neighborhood - serving goods,
services and retail uses; and
WHEREAS, Interim Ordinance No. 2356 (CCS) adopted by the City Council on
April 26, 2011 converted Developer's DRP application to an application for a
development agreement; and
WHEREAS, this project is an infill housing project exempt from the California
Environmental Quality Act pursuant to CEQA Section 21159.24; and
1
WHEREAS, the development agreement is consistent with the General Plan,
as summarized below, and as detailed in the accompanying City Council staff report
prepared for this proposed project and the exhibits thereto, incorporated herein by
reference, including, but not limited to:
The proposed mixed -use project balances a broad mix of uses that
creates dynamic activity in both the daytime and evening hours
including retail and high- density residential uses in the Downtown.
LUCE Policy D7.1.
The Project encourages local- serving uses that are an integral part
of a complete neighborhood and support an overall trip reduction
strategy. LUCE Policy D7.2,
The Project has an active ground floor uses that face the
boulevard with residential uses located on the upperfloors. LUCE
Policy D8.7.
The Project will widen sidewalks at the key intersection of 41h Street
and Broadway and provide the opportunity for outdoor dining that
would help activate the street thereby being designed to be an
integral part of the urban open space in the Downtown. LUCE
Policy 9.1.
2
The Project implements a Transportation Demand Management
(TDM) Plan to reduce vehicle trips in the area. LUCE Circulation
Policy T19.2.
The Project incorporates community benefits, including but not
limited to a downtown transit and circulation infrastructure
contribution, a TDM plan that promotes bicycle facilities and transit
subsidies, LEED Silver equivalency, and the provision of roof -top
solar panels,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA
MONICA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The Development Agreement attached hereto as Exhibit 1 and
incorporated herein by reference between the City of Santa Monica, a municipal
corporation, and Fourth and Broadway, LLC, a California limited liability company and
Robert A. Grigsby as Successor Trustee of the Jesse L. and Ludona Grigsby
Revocable Trust dated November 6, 1985 is hereby approved.
SECTION 2. Each and every term and condition of the Development
Agreement approved in Section 1 of this Ordinance shall be and is made a part of the
Santa Monica Municipal Code and any appendices thereto. The City Council of the
City of Santa Monica finds that public necessity, public convenience, and general
welfare require that any provision of the Santa Monica Municipal Code or appendices
K3
thereto inconsistent with the provisions of this Development Agreement, to the extent
of such inconsistencies and no further, be repealed or modified to that extent
necessary to make fully effective the provisions of this Development Agreement.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto, inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, are hereby repealed or modified to that extent
necessary to effect the provisions of this Ordinance.
SECTION 4, If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of any competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance, and each and every section, subsection, sentence,
clause, or phrase not declared invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared invalid or
unconstitutional.
SECTION 5. The Mayor shall sign and the City Clerk shall attest to the
passage of this Ordinance. The City Clerk shall cause the same to be published once
4
in the official newspaper within 15 days after its adoption. This Ordinance shall be
effective 30 days from its adoption.
APPROVED AS TO FORM:
MA SHA (J ES M TRIE
Cit ttorr{e
ATTACHMENT B
DEVELOPMENT AGREEMENT FINDINGS
DEVELOPMENT AGREEMENT FINDINGS
1. The proposed Development Agreement is consistent with the objectives, policies,
general land uses and programs specified in the general plan and any applicable
specific plan, in that consistent with LUCE Policy D7.1 of the Downtown District,
the proposed mixed -use project balances a broad mix of uses that creates
dynamic activity in both the daytime and evening hours including retail and high -
density residential uses in the Downtown. Consistent with Policy D7.2, the
project encourages local- serving uses that are an integral part of complete
neighborhoods and support an overall trip reduction strategy. The proposed
project is also consistent with Policy D8.7 in that it encourages mixed -use
developments to have active ground floor uses that face the boulevard with
residential uses located on the upper floors. Consistent with Policy D9.1 which
seeks to design and manage streets to be an integral part of the urban open
space in the Downtown, the project would widen sidewalks at the key intersection
of 4th Street and Broadway, and provide the opportunity for outdoor dining that
would help to activate the street. The implementation of a Transportation
Demand Management (TDM) plan in efforts to reduce vehicle trips in the area
and reduce associated parking demand is consistent with LUCE Circulation
Policy T19.2 which seeks appropriate TDM requirements for new development.
Furthermore, the project is consistent with LUCE's overall land use policies by
providing community benefits for the area, including but not limited to, a transit
contribution for the downtown that would support Exposition Light Rail station
improvements, and a TDM plan that provides bicycle facilities and transit
subsidies for commercial employees.
2. The proposed Development Agreement is compatible with the uses authorized in
the district in which the real property is located, in that the subject property is
located in the Downtown BSC -3 District that permits multi - family dwelling units
and commercial uses. The proposed Development agreement is consistent with
LUCE Policy D7.1 of the Downtown District in that the proposed mixed -use
project balances a broad mix of uses that creates dynamic activity in both the
daytime and evening hours including retail and high- density residential uses in
the Downtown. Consistent with Policy D7.2 the project encourages local- serving
uses that are an integral part of complete neighborhoods and support an overall
trip reduction strategy. The proposed TDM plan seeks to reduce the overall
parking demand and vehicular trips within the area by providing bicycle facilities
for residents and employees, and provisions for transit subsidies for commercial
employees.
3. The proposed Development Agreement is in conformity with the public necessity,
public convenience, general welfare, and good land use practices, in that it
27
allows for the redevelopment of an existing, underutilized auto repair site with a
mixed -use project that is compliant with the new Land and Use Circulation
Element vision for the area. The proposed project provides 56 new residential
units and will feature a neighborhood serving commercial use, and would provide
public benefits including a transit contribution for the downtown that would
support Exposition Light Rail station improvements, and a TDM plan that
provides bicycle facilities and transit subsidies for commercial employees.
4. The proposed Development Agreement will not be detrimental to the health,
safety and general welfare, in that the agreement would allow for the
redevelopment of an existing, underutilized auto repair site with a use that is
compliant with the new Land and Use Circulation Element vision for the area.
The proposed project will be located in an urbanized area and is consistent with
other similar improvements in the area, and does not have the potential to disrupt
the urban environment or cause health or safety problems. The proposed project
provides 56 new residential units and will feature a neighborhood serving
commercial use, and would provide public benefits including a transit contribution
for the downtown that would support Exposition Light Rail station improvements,
and a TDM plan that provides bicycle facilities and transit subsidies for
commercial employees.
5. The proposed Development Agreement will not adversely affect the orderly
development of the property, in that the Development Agreement is contingent
upon the review and approval of a specific site plan consistent with recognized
urban design principles that reflect the goals and policies of the City of Santa
Monica which were established through a long range planning process and are
reflected in the recently adopted update of the Land Use and Circulation Element
of the City's General Plan.
6. The proposed Development Agreement will have a positive fiscal impact on the
City, in that the ground floor commercial uses are subject to City business license
taxes. The City will incur no cost associated with the implementation of the
applicant's Transportation Demand Management plan and the associated
community benefit of reduced vehicle trips and parking demand in the area.
Furthermore, if the fee or monetary contribution options required in SMMC
Sections 9.04.10.20 and 9.72 for cultural arts and child care respectively are
exercised, the payment of fees related to cultural arts (approximately $84,510)
and child care (approximately $52,799), and a transportation improvement
contribution (amount TBD) will be required to obtain project approval. For these
reasons the project will not have a negative fiscal impact on the City.
28
ATTACHMENT C
PROPOSED DEVELOPMENT AGREEMENT
rkl
Recording Requested By:
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 Recorders Use
No Recording Fee Required
Government Code Section 27383
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF SANTA MONICA
AND
FOURTH AND BROADWAY, LLC
DevAgmt16
Revised: December 6, 2011
Table Of Contents
RECITALS
Article I
DEFINITIONS ............................................................................ ..............................3
Article 2
DESCRIPTION OF THE PROJECT ......................................... ...............................
5
Article 3
CONSTRUCTION ................................................................... ...............................
19
Article 4
PROJECT FEES, EXACTIONS AND CONDITIONS ........... ...............................
21
Article 5
EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS
.............. 21
Article 6
ARCHITECTURAL REVIEW BOARD ................................... .............................24
Article 7
CITY TECHNICAL PERMITS ............................................... ...............................
25
Article 8
AMENDMENT AND MODIFICATION ................................ ...............................
27
Article9
TERM ...................................................................................... ...............................
27
Article 10
PERIODIC REVIEW OF COMPLIANCE ............................. ...............................
28
ArticleI 1
DEFAULT ............................................................................... ...............................
29
Article12
MORTGAGEES ...................................................................... ...............................
33
Article 13
TRANSFERS AND ASSIGNMENTS .................................... ...............................
35
Article14
INDEMNITY TO CITY .......................................................... ...............................
35
Article15
GENERAL PROVISIONS ...................................................... ...............................
36
Exhibits
Exhibit "A"
Legal Description of Property
Exhibit `B"
Project Plans
Exhibit "C"
Permitted Fees and Exactions
Exhibit "D"
Conditions of Approval
Exhibit "E"
SMMC Article 9 (Planning and Zoning)
Exhibit "F"
Construction Mitigation Plan
Exhibit "G"
Assignment and Assumption Agreement
Exhibit "H"
Local Hiring
DevAgmt16
Revised: December 6, 2011
DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement "), dated for reference purposes
, 2011, is entered into by and among FOURTH AND BROADWAY, LLC, a
California limited liability company (the "Developer'), Robert A. Grigsby as Successor Trustee
of the JESSE L. AND LUDONA GRIGSBY REVOCABLE TRUST dated November.6, 1985
(the "Owner "), 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 "C "), 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. Owner is the owner of approximately 7,500 square feet of land located in the City
of Santa Monica, State of California, commonly known as 401 Broadway, as more particularly
described in Exhibit "A" attached hereto and incorporated herein by this reference (the
"Property'). The Property is currently improved with an automobile repair facility and surface
parking lot.
C. Developer has an equitable interest in the Property.
D. 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 Zone 3 under the City's Bayside District
Specific Plan. To aid in the redevelopment of the Property, the City and Developer desire to
allow Developer to construct a new building and related improvements.
E. On June 12, 2008, Developer filed an application for a Discretionary Review
Permit ( "DRP ") for a four -story commercial building.
F. Following the filing of the DRP application, the City prepared a draft EIR
pursuant to the California Environmental Quality Act (California Public Resources Code
Sections 21,000 et seq. herein referred to as "CEQA ") and designated SCH No. 2009031022
( "Draft Ell R" ).
G. In January 2011, Developer filed revised plans for a five -story mixed -use
residential /commercial project (the "Project "). The Project will include Rental Housing and
primarily neighborhood- serving goods, services, and retail uses.
H. Interim Ordinance No. 2356 (the "IZO ") prohibits the issuance of permits for
development projects which would exceed 32 feet in height in the Downtown Core as delineated
in the Land Use Designation Map approved by the City Council on July 6, 2010 unless
DevAgmt16
Revised: December 6, 2011
developed pursuant to a development agreement adopted in accordance with SMMC Chapter
9.48.
I. The IZO converted Developer's DRP application to an application for a
development agreement (the "Application ").
J. The Project is consistent with the City's General Plan, including the Land Use and
Circulation Element adopted by the City Council (Resolution No. 10508 (CCS)) on July 6, 2010
(the "LUCE"). This Project is also consistent with the Bayside District Specific Plan. The
Project is more particularly shown on the Project Plans attached hereto as Exhibit "B" (the
"Project Plans ").
K. Pursuant to California Government Code Sections 65864 et seq., Chapter 9.48 of
the Existing Regulations (collectively, the "Development Agreement Statutes ") and the City's
IZO, 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.
L. Developer has paid all necessary costs and fees associated with the City's
processing of this Agreement.
M. The primary purpose of the Project is to create a pedestrian- oriented, mixed -use
project in the Downtown consistent with the LUCE.
N. 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.
O. 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 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.
P. 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: on -site
affordable housing, a comprehensive TDM Plan, ample bicycle storage for residents and
employees, LEED Silver equivalent, a monetary contribution towards transportation
infrastructure, and project design.
Q. The City Council has found that the provisions of this Development Agreement
are consistent with the relevant provisions of (1) City's General Plan, including the LUCE and
(2) the Bayside District Specific Plan.
2
DevAgmt16
Revised: December 6, 2011
R. On October 19, 2011, the City's Planning Commission held a duly noticed public
hearing on the Development Agreement. The Commission continued the item to November 16,
2011. On November 16, 2011, the City's Planning Commission held a second public hearing on
the Development Agreement. The Commission recommended that the City Council approve the
Development Agreement.
S. On December 13, 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 ( "CEOA ") 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.
T. On , 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
DEFINITIONS
The terms defined below have the meanings in this Agreement as set forth below.
1.1 "Agreement" means this Development Agreement entered into between the City
and 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, as
shown on the Project Plans (Exhibit "B ").
IA "City Council" shall mean 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
Santa Monica Municipal Code ( "SMMC "), provided however: (a) below -grade floor area shall
not be included in accordance with the IZO, (b) no portion of the roof decks shall be included in
accordance with SMMC Section 9.04.02.030.315(d), and (c) floor area devoted to Residential
Use shall be discounted by fifty percent (50 %) in accordance with Section 9.04.08.15.060(a)(1).
3
DevAgmt16
Revised: December 6, 2011
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" shall mean 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 "LEEDO Rating System" means the Leadership in Energy and Environmental
Design (LEEDO) Green Building Rating System For New Construction & Major Renovations,
Version 3.0 dated 2009 (LEED® 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.
1.12 "Legal Action" shall mean any action in law or equity.
1.13 "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.
1.14 "Parties" mean both the City and Developer, and "Party" means either the City
or Developer, as applicable.
1.15 "Planning Director" means the Planning Director of the City of Santa Monica, or
his or her designee.
1.16 "Project Plans" mean the plans for the Project that are attached to this
Agreement as Exhibit "B ".
1.17 "Rental Housing" means dwelling units intended for Residential Use, as defined
in Section 1. 18, 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.
1.18 "Residential Use" means one or more rooms designed, occupied or intended for
occupancy as primary living quarters in a building or portion thereof.
1.19 "Restaurant" and "Restaurant Use" have the meaning provided in Section
9.04.02.030.730 of the SMMC.
1.20 "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.
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1.21 "Subterranean Space" consists of two levels in the Project below the ground
floor, "Subterranean Level A" (the first level below the ground floor) and "Subterranean Level
B" (the second level below the ground floor), as shown on the Project Plans attached as Exhibit
«B„
1.22 "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, as set forth in its entirety in Exhibit `B" (Planning and Zoning).
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 building and construction of a new five -story
residential /commercial mixed -use building, including fifty -six (56) Rental Housing units on
floors two through five, other uses on the ground floor and in the Subterranean Space as
specified in Section 2.5.2, and roof decks for use by the occupants of the Rental Housing units
and their guests. Of the 56 Rental Housing units, forty -eight (48) will be studios and eight (8)
will be one - bedroom units.
(b) There will be no on -site vehicular parking or loading and unloading spaces
or areas provided.
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.
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2.3.2 Failure by Developer to proceed with construction of the Projector 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.
n
2.3.4 In the event Developer does not acquire the Property by December 31,
2012 (or by such later date as Owner and Developer may mutually agree in writing), then upon
Owner's written request made at any time prior to issuance of a building permit for the Project,
the Parties shall terminate this Agreement and record a Termination Certificate with the
Recorder for the County of Los Angeles pursuant to Section 9.2.2 of this Agreement, at which
time the Agreement shall be of no further legal force or effect and Owner shall be relieved of any
and all obligations attributed to either the Owner or the Developer hereunder.
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 developed 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
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 "Mai or Modification" means any proposed
modification 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;
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(b) Any change in use of the Project not consistent with the permitted
uses defined in Section 2.5 below;
(c) A reduction in the number of Rental Housing units specified in
Section 2.2(a) by more than twenty eight (28) units.
(d) 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; and
(e) 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 Modifications. 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 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 modifications, 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. Except for any required approvals from the ARB pursuant to Article 6 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:
2.5.1 Prior To The Development Of The Project. 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.
2.5.2 Permitted Uses. Permitted Uses in the Project are as specified below:
(a) Above the ground floor: Rental Housing,
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(b) On the ground floor: Any nonresidential uses permitted by the
Code in effect at the time the use is established; rop vided, however that all such uses shall be
primarily neighborhood - serving goods, services or retail uses and shall be subject to Section
2.5.5. 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. Restaurants are deemed to be Neighborhood Serving
Uses. For purposes of this Agreement, given the Property's location in the core area of
Downtown, Neighborhood Serving Uses of no more than 10,000 square feet of useable area, not
including subterranean storage areas, the transformer area, meter area, or refuse area, shall be
deemed "small -scale establishments."
(c) In the Subterranean Space on the first level below the ground floor
(depicted as "Subterranean Level A" on the Project Plans):
(1) Any nonresidential uses permitted by the Code in effect at
the time the use is established; provided, however that all such uses shall be Neighborhood
Serving Uses, as defined in Section 2.5.2(b) and shall be subject to Section 2.10.7.
(2) Screening Room; and
(3) 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.
(d) In the Subterranean Space on the second level below the ground
floor (depicted as "Subterranean Level B" on the Project Plans), Screening Room, bicycle
parking, employee shower(s) and locker(s), storage, fitness center exclusively keyed for
residential tenants and uses which are determined by the Planning Director to be necessary and
customarily associated with, and appropriate, incidental, and subordinate to Residential Use and
which are consistent and not more disturbing or disruptive than Residential Use.
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.
2.5.3 Conditionally Permitted Uses. Conditionally Permitted Uses shall be all
nonresidential uses 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, as defined in Section 2.5.2(b), and shall be subject to Sections
2.5.5 and 2.10.7. 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. Conditionally Permitted Uses are
not permitted above the ground floor or in Subterranean Level B.
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2.5.4 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 or Subterranean Space uses in Subterranean Level A 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, as defined in Section 2.5.2(b), and shall be subject to Sections 2.5.5
and 2.10.7. Such uses (a) may not commence until the requisite City discretionary planning
approval and a business license are obtained and (b) are not permitted above the ground floor or
in Subterranean Level B.
2.5.5 Limitation on Nonresidential Uses. Notwithstanding the above, in no
event shall the Project's nonresidential uses exceed 15 percent of the Project's total Floor Area.
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 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.
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(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.
(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
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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.
(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 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; and (vii) various standard public improvements and fees.
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 shall provide 6 on -site
residential units for very -low income tenants pursuant to the City's Affordable Housing
Production Program (Chapter 9.56 of the Existing Regulations) as shown on the Project Plans.
This includes 5 units required pursuant to the on -site option of the City's Affordable Housing
Production Program and one additional unit in lieu of paying a fee for the fractional unit required
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to the on -site option of the City's Affordable Housing Production Program. [CITY
)OES NOT AGREE THAT THE PROVISION OF 5 UNITS CONSTITUTES A
fNITY:BENEFIT AND INSTEAD WOULD CHARACTERIZE IT AS A PROJECT
T; DEVELOPER IS OFFERING THIS AFFORDABLE HOUSING PROVIDED IT
ff BMW q,
(b) TDM Plan. Developer shall maintain and implement the following
Transportation Demand Management Plan ( "TDM Plan "):
(1) Measures Applicable to Entire Project (Commercial and
Residential Elements):
(i) 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 Project. Such transportation information shall be provided on-
site, regardless of whether also provided on a website.
(ii) Public Bicycle Parking. Developer shall provide bicycle
parking for public use in the amount of 12 short -term bicycle parking spaces for commercial
patrons and 6 short-term bicycle spaces for resident visitors (18 total public bike spaces), as
shown on the Project Plans.
(iii) Marketing. Developer shall periodically promote
ridesharing through newsletters or other communications to tenants, both residential and
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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.
(iv) Transportation Coordinator. Developer shall designate
a 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)(2)(ii)
below.
(2) Measures Applicable to Project's Commercial Component
Only:
(i) TargetAVR. 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 performance' standard as provided in this Section
2.8.2(b)(2)(i) 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 in accordance with SMMC
9.16.070(d)(2)(1) except to the extent modified by this Agreement below:
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)] except as provided herein.
(B) AVR shall be calculated by dividing the number of
employees who report to or leave the worksite by the number of
vehicles being driven for the work commute by said employees
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, using public transit, or
utilizing other shared ride shuttle services for at least 75% of their
commute shall be counted as employees arriving at or leaving the
worksite without vehicles. Employees telecommuting or on their
day off under a recognized compressed work week schedule shall
also 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 /vanpool only if the driver of the
carpool /vanpool 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.
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
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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."
(ii) 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.
(iii) Employee Transit Subsidy. Developer shall require in all
tenant leases it executes as landlord that each tenant offer its employees at no cost a monthly
Metro EZ Transit (or a similar bus pass if the EZ Transit Pass is no longer available).
(iv) Employee Secure Bicycle Storage. Developer shall
provide secure bicycle parking for commercial employees in the amount of 15 long -term spaces
as shown on the Project Plans. For the purpose of this Section, secure bicycle parking shall
mean bicycle lockers, an attended cage, or a secure parking area. If the secure bicycle storage is
not secure individual bicycle lockers, commercial employee secure bicycle storage shall be
provided in an area separate from the secure bicycle storage for residents.
(v) Employee Showers and Locker Facilities. 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.
(vi) Employee Flex -Time Schedule. The Developer shall
require in all commercial 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.
(vii) 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
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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)(2)(ii) above.
(3) Measures Applicable to Project's Residential Component Only:
(i) Transit Welcome Package for Residents. The Developer
shall provide new residents of the Rental Housing Units of the Project with a Resident Transit
Welcome Package (RTWP). One RTWP shall be provided to each unit upon the commencement
of a new tenancy. The RTWP at a minimum will include one voucher good for a Metro EZ
Transit Pass or equivalent multi- agency pass valid for at least the first month of the tenant's
residency, as well as area bus /rail transit route information. The RTWP will also inform
residents about the Transit Information Center discussed in Section 2.8.2(b)(1)(i) above and
explain how to access the Transit Information Center.
(ii) Marketing and Outreach to Downtown Employers and
Employees. Developer shall prepare and implement a marketing and outreach plan 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.
Such plan shall be subject to reasonable approval by the Planning Director. 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.
(iii) Convenient and Secure Bicycle Storage for Residents.
The Developer shall provide a convenient and secure bicycle parking area for residents of the
Project in the Subterranean Space as shown on the Project Plans that shall have sufficient space
to accommodate one bicycle for each residential unit at the Project. For the purposes of this
Section, secure bicycle parking shall mean bicycle lockers, an attended cage, or, a secure parking
room. If the secure bicycle storage is not secure individual bicycle lockers, residential secure
bicycle storage shall be provided in an area separate from the secure bicycle storage for
commercial employees.
(4) 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.
(5) 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.
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(c) Downtown Transit and Circulation Infrastructure Contribution. On
or before issuance of a building permit for the Project, Developer shall make a $50,000 transit
and circulation infrastructure contribution to the City to be specifically used in the Downtown
area.
(d) LEED® Silver Requirement. 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 LEEDS credits
equivalent to a "Silver" certification under the LEEDS Rating System ("LEEDS Silver
Requirement "). For purposes of clarity, Developer shall design the Project in a manner that
achieves the LEEDS Silver Requirement; provided, however, that Developer shall not be
required to pay to the Green Building Certification Institute the fees required to obtain a LEEDS
certificate.
(1) Developer shall confirm to the City that the design for the
Project has achieved the LEEDS Silver Requirement 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
LEEDS credits (that shall be prepared by the LEEDS 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 LEEDS Silver Requirement.
(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 LEEDS credits identified in clause (2) above (prepared by the LEEDS
accredited professional) for review by the Advisor to demonstrate that the Project is likely to
achieve the LEED® Silver Requirement.
(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 LEEDS credits identified in
clause (2) above (prepared by the LEEDS accredited professional) demonstrate that the Project
is likely to achieve the LEEDS Silver Requirement. Developer shall meet with the Advisor at
least 30 days prior to submitting the final LEEDS credits for the Advisor's approval, and during
such meeting Developer shall review the LEEDS progress with the Advisor.
(5) Notwithstanding the foregoing, if the Advisor has not yet
approved the LEEDS credits that demonstrate that the constructed Project has achieved the
LEEDS Silver Requirement, 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 LEEDS credits for the Project
demonstrate that the constructed Project has achieved the LEEDS Silver Requirement.
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(e) Solar Panels. Photovoltaic panels shall be installed on the roof deck
in accordance with the Project Plans.
(f) Local Hiring. Developer shall implement the local hiring program
set forth on Exhibit "H".
(g) Project Design. As a result of this Agreement, there are enhanced
elements of the Project design, including enhanced walkway 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.
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,
2.10.1 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.
2.10,2 Building Height. The maximum height of the building shall be 56 feet as
set forth on the Project Plans. In the event that any inconsistencies exist between the Zoning
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Ordinance and the building height allowed by this Agreement, then the building height allowed
by this Agreement shall prevail.
2.10.3. 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.
2.10.4 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.
2.10.5 Signaae. 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 Article 6 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 "E" (Planning and Zoning). Directional signs for vehicles shall be
located at approaches to driveways as required by the City's Strategic Transportation Planning
Division,
2.10.6. Balconies. Balconies shall be provided in accordance with the Project
Plans.
2.10.7 Internal Connection Between Ground Floor and Subterranean Level A.
An internal connection between the ground floor and Subterranean Level A will be provided as
shown on the Project Plans. Only one (1) access door and stairway lobby on the ground floor
shall be permitted to any and all uses of Subterranean Level A that do not also have a substantial
ground floor presence unless otherwise approved in the reasonable exercise of discretion by the
Planning Director. Any such access door(s) and stairwell lobby(ies) shall be designed with
pedestrian orientation.
2.11 Developer's Obligations with Respect to Parking.
2.11.1 Developer shall prepare a marketing and outreach program for the
residential component targeted toward Downtown employees in accordance with Section
2.8.2(b)(3)(ii).
2.11.2 In leasing the Project's residential component, Developer shall give first
priority to applicants not needing parking, either because they do not have a car or have secured
alternative parking /storage for their car, provided that such applicants meet all leasing
qualifications /criteria.
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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 "F" 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, 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 (36t) 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 Fourth Street, Broadway, and Fourth Court. Developer shall compensate the
City for such tiebacks in accordance with the City's tieback fees then in effect.
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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 "F" 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.
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.
4.3 Floor Area for Fees Calculations. This Agreement's definition of Floor Area
shall not alter the methodology for calculating City fees, including but not limited to, the
Childcare Linkage Fee, the Cultural Arts Fee, and the Parking Developer Fee. Calculation of all
City fees shall continue to be governed by the applicable provisions of the SMMC and /or City
Council Resolutions.
4.4 Implementation of Conditions of Approval.
4.4.1 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 ".
4.4.2 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
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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 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 the Bayside District Specific Plan, 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
Article 6 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.
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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 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.
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(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(8), 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.
(h) Developer acknowledges that the Property is subject to the Parking
Developer Fee adopted by the City Council on August 19, 1986 (Resolution No. 7286 (CCS)).
Developer further acknowledges that the City is currently addressing how this fee might be
revised, updated or restructured ( "revised fee "). This Agreement neither precludes the City from
imposing the revised fee on Developer nor prevents Developer from challenging the revised fee
if imposed on Developer except Developer cannot assert that this Agreement serves as a bar to
the imposition of the revised fee,
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.
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 Ca1.3d 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
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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.
ARTICLE 7
CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terms shall have the
meanings set forth below:
73.1 "Technical City Permits" means any Ministerial Approvals, consents or
permits from the City or any office, board, commission, department, division or agency of the
City, which are necessary for the actual construction of the Project or any portion thereof in
accordance with the Project 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.
7.2.2 "Technical Permit Applications" means any applications required to be
filed by Developer for any Technical City Permits.
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7.2 Diligent Action by City.
7.2.1 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.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the City shall
diligently issue the Technical City Permits which are the subject of the Technical the
Applications.
7.2.3 In accordance with SMMC Section 9,56.0500), the Project shall receive
priority building department plan check processing by which housing developments shall have
plan check review in advance of other pending developments to the extent authorized by law.
7.3 Conditions for Diligent Action by the City.
7.3.1 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:
(a) 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;
(b) 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
(c) If required for the particular Technical Permit Application,
Developer shall have obtained the approval of the ARB referred to in Article 6 above.
7.3.2 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):
(a) 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;
(b) 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;
(c) 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
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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
(d) The proposed Building conforms to the Administrative and
Technical Construction Codes of the City (Article VIII, Chapter I of the SMMC) (the
"Technical Codes ") in effect on the date that the Technical Permit Application is filed.
7.3.3 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.
7.4 Duration of Technical City Permits. The duration of Technical City Permits
issued by the City, and any extensions of the time period during which such Technical City
Permits remain valid, shall be established in accordance with the Technical Codes in effect at the
time that the Technical City Permits are issued. 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
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.
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ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the Parties
hereunder shall be effective as of the date upon which the ordinance approving this Agreement
becomes effective (the "Effective Date "). The Parties shall execute this Agreement within ten
(10) working days of the Effective Date.
9.2 Term.
9.2.1 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 2.3.4 or Section 3.3.
9.2.2 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.
9.2.3 Effect of Termination. Except as expressly provided herein (e.g., Section
4.4.2), 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.
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.
103 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 below, the City shall concurrently deliver
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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 I L I 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 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.
ARTICLE 11
DEFAULT
I L I 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.
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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 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.
113.3 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-
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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.
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 Chapters 1.09 and 1.10
respectively in lieu of Section 11.1 of this Agreement if these remedies are applied.
11.3.6 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
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(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.
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 (3 1) 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
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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 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 11.21
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
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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.
12.1.3 Riaht 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;
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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.
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. This 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 "G" attached hereto (the "Assumption
Agreement "). Upon such transfer of the Property and the express assumption of Developer's
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obligations under this Agreement by the transferee, the City agrees to look solely to the
transferee for compliance with the provisions of this Agreement. Any such transferee shall be
entitled to the benefits of this Agreement as "Developer" hereunder and shall be subject to the
obligations of this Agreement. Failure to deliver a written Assumption Agreement hereunder
shall not affect the transfer of the benefits and burdens as provided in Section 13. 1, provided 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
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applicable, by (i) personal service, or (ii) express mail, Federal Express, or other similar
overnight mail or courier service, regularly providing proof of delivery, or (iii) registered or
certified mail, postage prepaid, return receipt requested, or (iv) facsimile (provided that any
notice delivered by facsimile is followed by a separate notice sent within twenty -four (24) hours
after the transmission by facsimile delivered in one of the other manners specified above). Such
notice shall be addressed as follows:
To 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: Fourth and Broadway, LLC
865 Via De La Paz, #200
Pacific Palisades,CA 90272
With a Copy to: Harding Larmore Katcher & 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 Part)
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 or condition beyond the
reasonable control of Developer (collectively, "Excusable Delays ") for any of the following
reasons:
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(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
(t) 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 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'
39
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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 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:
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(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 Pagy 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 15.8.1(e), 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.
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
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Exhibit "D" Conditions of Approval
Exhibit "E ": SMMC Article 9 (Planning and Zoning)
Exhibit "F ": Construction Mitigation Plan
Exhibit " % Assignment and Assumption Agreement
Exhibit "H ": 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.
15.20 Interests of Developer. Developer represents to the City that, as of the Effective
Date, Developer has a legal or equitable interest in the Property.
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
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Additional attachments
available for review in the
City Clerk's Office.
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.
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.
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DEVELOPER:
FOURTH AND BROADWAY, LLC
a limited liability company
By:
Name: Steve Henry
Title: Managing Member
OWNER:
JESSE L. AND LUDONA GRIGSBY
REVOCABLE TRUST dated November 6, 1985
Bv:
Name: Robert A. Grigsby
Title: Successor Trustee
CITY:
CITY OF SANTA MONICA,
a municipal corporation
go
ATTEST:
C
MARIA M. STEWART
City Clerk
APPROVED AS TO FORM:
IC
MARSHA JONES MOUTRIE
City Attorney
M
DevAgmt16
Revised: December 6, 2011
Rod Gould
City Manager
EXHIBIT "A"
Legal Description Of Property
LOT "M" IN BLOCK 170 OF THE TOWN OF SANTA MONICA, IN THE CITY OF
SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 3 PAGE(S) 80 AND 81 AND IN BOOK 39 PAGE 45 ET
SEQ. OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
ASSESSOR'S PARCEL NO: 4291 - 018 -013
EXHIBIT "B"
Project Plans
EXHIBIT "C"
PERMITTED FEES AND EXACTIONS
1. 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.
• 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.
EXHIBIT "D"
Conditions of Approval
Proiect 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). In addition to the five (5) units required by AHPP, the project shall provide
and maintain one (1) additional very-low income unit as a community benefit, for
a total of six (6) affordable units on -site. All six (6) affordable units shall comply
with the AHPP.
2. Transportation Demand Management Plan. Developer shall maintain and
implement the following Transportation Demand Management Plan ( "TDM
Plan "):
I. Measures Applicable to Entire Proiect (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 Project. Such transportation information
shall be provided on -site, regardless of whether also provided on a
website.
B. Public Bicycle Parking. Developer shall provide bicycle parking for
public use in the amount of 12 short -term bicycle parking spaces for
commercial patrons and 6 short -term bicycle spaces for resident
visitors (18 total public bike spaces), as shown on the Project
Plans.
C. 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.
D. Transportation Coordinator. Developer shall designate a
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 DA Section 2.8.2(b)(2)(ii).
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 2.8.2 (b)(2)(i) 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 in accordance
with SMMC 9.16.070(d)(2)(1), except to the extent modified by the
Agreement below
"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 ...
"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)], except as provided
herein.
"(B) AVR shall be calculated by dividing the
number of employees who report to or leave the
worksite by the number of vehicles being driven for
the work commute by said employees 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, , using public transit, , or utilizing
other shared ride shuttle services for at least 75 % of
I
their commute shall be counted as employees arriving
at or leaving the worksite without vehicles. Employees
telecommuting or on their day off under a recognized
compressed work week schedule shall also 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 /vanpool only if the
driver of the carpool / vanpool 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.
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 DA Section 2.8.2(b) through the TMA.
C. Employee Transit Subsidy. Developer shall require in all tenant
leases it executes as landlord that each tenant offer its employees
at no cost a monthly Metro EZ Transit (or a similar bus pass if the
EZ Transit Pass is no longer available).
D. Employee Secure Bicycle Storage. Developer shall provide secure
bicycle parking for commercial employees in the amount of 15 long-
term spaces as shown on the Project Plans. For the purpose of
this Section, secure bicycle parking shall mean bicycle lockers, an
attended cage, or a secure parking area. If the secure bicycle
storage is not secure individual bicycle lockers, commercial
employee secure bicycle storage shall be provided in an area
separate from the secure bicycle storage for residents.
E. Employee Showers and Locker Facilities. 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.
d. 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.
e. 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 DA Section
2.8.2(b)(2)(ii).
III. Measures Applicable to Project's Residential Component Only
A. Transit Welcome Package for Residents. The Developer shall
provide new residents of the Rental Housing Units of the Project
with a Resident Transit Welcome Package (RTWP). One RTWP
shall be provided to each unit upon the commencement of a new
tenancy. The RTWP at a minimum will include one voucher good
for either a Big Blue Bus Metro EZ Transit Pass, or a Metro TAP
card or equivalent multi- agency pass valid for at least the first
month of the tenant's residency, as well as area bus /rail transit
route information. The RTWP will also inform residents about the
Transit Information Center discussed in DA Section 2.8.2(b)(1)(i)
and explain how to access the Transit Information Center.
B. Marketing and Outreach to Downtown Employers and Employees.
Developer shall prepare and implement a marketing and outreach
plan 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. 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.
C. Convenient and Secure Bicycle Storage for Residents. The
Developer shall provide a convenient and secure bicycle parking
area for residents of the Project in the Subterranean Space as
shown on the Project Plans that shall have sufficient space to
accommodate one bicycle for each residential unit at the Project.
For the purposes of this Section, secure bicycle parking shall mean
bicycle lockers, an attended cage, or a secured parking area room.
If the secure bicycle storage is not secure individual bicycle lockers,
residential secure bicycle storage shall be provided in an area
separate from the secure bicycle storage for commercial
employees.
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.
3. Downtown Transit and Circulation Infrastructure Contribution. On or before
issuance of a building permit for the Project, Developer shall make a $
(PENDING DISCUSSION ITEM) transit and circulation infrastructure contribution
to the City to be specifically used for improvements in the Downtown area.
4. LEEDS Silver Certification Requirement. 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 LEEDS credits equivalent to a "Silver" certification
under the LEEDS Rating System ( "LEEDS Silver Requirement "). For purposes
of clarity, Developer shall design the Project in a manner that achieves the
LEEDS Silver Requirement; provided, however, that Developer shall not be
required to pay to the Green Building Certification Institute the fees required to
obtain a LEEDS certificate.
A. Developer shall confirm to the City that the design for the Project has
achieved the LEEDS Silver Requirement in accordance with the following
requirements of DA Section 2.8.2(d).
B. Prior to the submission of plans for ARB review consistent with Article 6 of
this Agreement, Developer shall submit a preliminary checklist of
anticipated LEEDS credits (that shall be prepared by the LEEDS
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 LEEDS Silver
Requirement.
C. 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 (B)
above (prepared by the LEEDO accredited professional) for review by the
Advisor to demonstrate that the Project is likely to achieve the LEEDO
Silver Requirement.
D. 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 (B) above (prepared by the LEEDO
accredited professional) demonstrate that the Project is likely to achieve
the LEEDO Silver Requirement. 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.
E. Notwithstanding the foregoing, if the Advisor has not yet approved the
LEEDO credits that demonstrate that the constructed Project has achieved
the LEEDO Silver Requirement, 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 LEEDO Silver Requirement.
5. Project Desian. As a result of this Agreement, there are enhanced elements of
the Project design, including expanded sidewalks. 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.
6. Photovoltaic Solar Panels. Photovoltaic solar panels shall be installed on the
roof deck in accordance with the Project Plans.
7. Local Hiring. Developer shall implement the local hiring program set forth in
Exhibit "H ".
8. Only one (1) access door and stairway lobby on the ground floor shall be
permitted to any and all uses of Subterranean Level A that do not also have a
substantial ground floor presence unless otherwise approved in the reasonable
exercise of discretion by the Planning Director. Any such access door(s) and
stairwell lobby(ies) shall be designed with pedestrian orientation.
Administrative
9. 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.
10. Prior to the issuance of a building permit, a deed restriction limiting future use
and residential occupancy of the residential portion of the project must be
drafted, executed by the property owner, City and recorded by the County
Recorder. The deed restriction shall be effective for the life of the project. The
applicant needs to submit a Deed Restriction application, including a complete
and accurate legal description of the property; the full name(s) of the property
owner(s); the full name(s) and tile of the person(s) authorized to execute deed
documents on behalf of the property owner to the City Planning Division early
during the plan check process to avoid delay. A title report or copy of the current
deed contains this information.
11. 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
12. This approval is for those plans dated , 2011, 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.
13. 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.
14. 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
15. 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.
16. 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.
Cultural Resources
17. 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.
18. 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.
Proiect Operations
19. 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.
20. The project shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
Final Design
21. Plans for final design, landscaping, screening, trash enclosures, and signage
shall be subject to review and approval by the Architectural Review Board.
22. 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.
23. No gas or electric meters shall be located within the required front or street side
yard setback areas. The Architectural Review Board in its review shall pay
particular attention to the location and screening of such meters.
24. 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.
25. As appropriate, the Architectural Review Board shall require the use of anti -
graffiti materials on surfaces likely to attract graffiti.
26. The Architectural Review Board, in its review, shall pay particular attention to the
refinement and design details of the rear elevation, further refinement to the east
end of the building along Broadway adjacent to the designated short-term bicycle
parking area, and development of the roof deck area, specifically the design of
the common open space and solar panel structures..
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.
Standard Conditions
30. 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.
31. Final approval of any mechanical equipment installation will require a noise test
in compliance with SMMC Section 4.12.040. Equipment for the test shall be
provided by the owner or contractor and the test shall be conducted by the owner
or contractor. A copy of the noise test results on mechanical equipment shall be
submitted to the Community Noise Officer for review to ensure that noise levels
do not exceed maximum allowable levels.for the applicable noise zone.
32. Construction period signage shall be subject to the approval of the Architectural
Review Board.
33. 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
34. 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
35. 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
36. 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)
These fees shall be reimbursed to developer in accordance with the City's
standard practice should Developer not proceed with development of the Project.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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
43. Connections to the sewer or storm drains require a sewer permit from the PWD -
Civil Engineering Division. Connections to storm drains owned by Los Angeles
County require a permit from the L.A. County Department of Public Works.
44. 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.
45. . 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.
46. [Reserved]
47. Prior to issuance of a first building permit, applicant shall be required to submit
the results of hydrant flow tests on existing adjacent public fire hydrants. If the
hydrant flow tests show adequate flow and pressure to support the project as
determined by the City's Water Resources Manager, no further studies are
required.
48. Developer shall not directly connect to a public storm drain pipe or direct site
drainage to the public alley.
49. All existing sanitary sewer "house connections" to be abandoned, shall be
removed and capped at the "Y" connections.
50. 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.
51. 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.lapublichealth.org /eh /progs /envirp /ehcross.htm. Prior to issuance of a
Certificate of Occupancy, a cross - connection inspection shall be completed.
52. 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.
53. 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
54. 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
55. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and
passable during the grading and construction phase of the project.
56. 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. Approval for this work shall be obtained from the
Department of Public Works prior to issuance of the building permits.
Utilities
57. 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.
58. 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 Recvclin
59. 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.
60. 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.
Miscellaneous:
61. 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.
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 Requirements
62. 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.
63. 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.
64. 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.
65. 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.
66. 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.
67. Buildings four or more stories in height shall be provided with not less than one
standpipe during construction.
68. 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 minimum demand of 500
gpm at 100 -psi residual pressure. Pumping equipment shall be capable of
providing the required pressure and volume.
69. 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.
70. 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.
71. 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)
72. 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.
73. 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.
74. Show ALL door hardware intended for installation on Exit doors.
75. 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 Division, information sheet entitled
"Evacuation Floor Plan Signs." (California Code of Regulations Title 19 Section
3.09)
76. Stairway Identification shall be in compliance with CBC 1022.8
77. Floor -level exit signs are required in Group A, E, I, R -1, R -2 and R -4
occupancies.
78. 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.
79. 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.
80. 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
81. An approved fire alarm system shall be installed as follows:
82. 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.
83. Group E Occupancies having occupant loads of 50 or more shall be provided
with an approved manual fire alarm system.
84. 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.
85. 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
Subject: Fire Apparatus Access Road Requirements
Scope: This policy identifies the minimum standards for apparatus access roads
required by California Fire Code, Section 503.
Application
86. 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.
87. 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.
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.
88. 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:
i. 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.
89. 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.
90. Fire apparatus access roads for commercial and industrial development shall
comply with the following:
i. 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.
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.
91. Aerial apparatus access roads shall comply with the following:
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.
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.
92. 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.
a. Automatic sprinkler system.
b. Smoke- detection systems.
c. Smoke control system conforming to Chapter 9 section 909.
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.
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.
• 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
93. 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
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}
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 1,500 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.
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.
• =6
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 dwellings - Fire Zone 3 (Less than 5,000 square 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
A
Duration
Fire Flow of Flow
c. Two family dwellings — VHFHSZ (Less than 5,000 square feet)
Duplexes
. 2. Mobile Home Park
1,500 GPM 2 hrs
Public
Hydrant
Spacing
600 ft.
a. Recreation Buildings Refer to Table 1 for fire flow according to
building size.
b. Mobile Home Park 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):
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 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.
(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 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
A
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
Three hydrants
F. Hydrant Upgrade Policy
1,250 GPM and below
1,251— 3,500 GPM flowing simultaneously
3,501— 5,000 GPM flowing simultaneously
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),
G
then a hydrant(s) upgrade will be required. This upgrade shall
apply regardless of flow requirements.
5. The owner - developer shall
necessary arrangements with
installation of all public facilities.
be responsible for making the
the local water purveyor for the
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).
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
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).
Barricade /Clearance Details
CONCRE(ECAP
0' BARRICADE POST
CONCRETE FILLED
3' MIN. MIN, 4" DIA. SCHEDULE 40
STEEL. SEE NOTE N7
CONCRETE
T
I'y} 4' MIN,
15" I
Figure 1
BARRICADE
9�yi r r
6" x 4" x 21(2' TLETS '
HYDRANT J 1
`✓ r
1 I
O`
PLAN
FIRE HYDRANT BARRICADES
(TYPICAL)
Figure 2
BARR
6 "x4
HYC
Figure 3
Notes:
0 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.
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.
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 II one -hour, Type II -N, 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.
EXHIBIT "E"
SMMC Article 9 (Planning and Zoning Ordinance)
On file with the City Clerk
EXHIBIT "F"
Construction Mitigation Plan
Construction Period Mitigation
1. 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;
j. 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;
I. 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
2. 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:
L 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.
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 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.
3. Construction equipment used on the site shall meet the following conditions in
order to minimize NOx and ROC emissions:
i. 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
4. All diesel equipment shall be operated with closed engine doors and shall be
equipped with factory- recommended mufflers.
5. Electrical power shall be used to run air compressors and similar power tools.
6. 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.
Construction Period
7. 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.
8. 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.
9. During demolition, excavation, and construction, this project shall comply with
SCAQMD Rule 403 to minimize fugitive dust and associated particulate
emission, including but not limited to the following:
• All material excavated or graded shall be sufficiently watered to
prevent excessive amounts of dust. Watering shall occur at least three
times daily with complete coverage, preferably at the start of the day,
in the late morning, and after work is done for the day.
• All grading, earth moving, or excavation activities shall cease during
periods of high winds (i.e., greater than 20 mph measured as
instantaneous wind gusts) so as to prevent excessive amounts of dust.
• All material transported on and off -site shall be securely covered to
prevent excessive amounts of dust.
• Soils stockpiles shall be covered.
• Onsite vehicle speeds shall be limited to 15 mph.
• Wheel washers shall be installed where vehicles enter and exit the
construction site onto paved roads or wash off trucks and any
equipment leaving the site each trip.
• An appointed construction relations officer shall act as a community
liaison concerning onsite construction activity including resolution of
issues related to PMIo generation.
• Streets shall be swept at the end of the day using SCAQMD Rule 1186
certified street sweepers or roadway washing trucks if visible soil is
carried onto adjacent public paved roads (recommend water sweepers
with reclaimed water).
• All active portions the construction site shall be sufficiently watered three
times a day to prevent excessive amounts of dust.
10. 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.
11. 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.
12. All material transported on and off -site shall be securely covered to prevent
excessive amounts of dust.
13. Soils stockpiles shall be covered.
14. Onsite vehicle speeds shall be limited to 15 mph.
15. 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.
16. An appointed construction relations officer shall act as a community liaison
concerning onsite construction activity including resolution of issues related to
PM 10 generation.
17. 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).
18. All active portions the construction site shall be sufficiently watered three times a
day to prevent excessive amounts of dust.
19. 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 within a 200 -foot radius from the subject site at least five (5) days prior
to the start of construction.
20. 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.
21. 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.
22. 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.
EXHIBIT "G"
Assignment and Assumption Agreement
Recording Requested By and
When Recorded Mail To:
Christopher M. Harding
Harding Lai-more Katcher & Kozal, LLP
1250 Sixth Street, Suite 200
Santa Monica, California 90401
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made and
entered into by and between FOURTH AND BROADWAY, 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 commonly known as 401 Broadway and 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 (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. Assi ng ment. 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"
FOURTH AND BROADWAY, LLC,
a California limited liability company
"ASSIGNEE"
IN
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
ME
Planning Director
EXHIBIT "H"
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:
Pu ose. 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.
d. 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.
e. "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 "I," 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;
C. 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.
5. 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.
6. 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.
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.
ATTACHMENT D
PUBLIC NOTIFICATION INFORMATION
Pursuant to Municipal Code Sections 9.04.20.22.050 and 9.48.110, notice of the public
hearing was mailed to all owners and residential and commercial tenants of property
located within a 1,000 -foot radius of the project and published in the Santa Monica Daily
Press at least ten consecutive calendar days prior to the hearing.
On October 27, 2011, the applicant was notified of the subject hearing date.
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NOTICE OF A PUBLIC HEARING
BEFORE THE SANTA MONICA CITY COUNCIL
SUBJECT: Development Agreement 11 DEV011
401 Broadway
APPLICANT: Steve Henry, Fourth and Broadway, LLC
PROPERTY OWNER: Grigsby Trust
A public hearing will be held by the City Council to consider the following request:
The applicant is requesting City Council approval of a Development Agreement with the City to
construct a new five -story mixed -use building with fifty -six (56) residential units, approximately
4,159 square feet of ground floor neighborhood- serving commercial space, and two
subterranean floors consisting of commercial use and residential amenities.
DATE /TIME: TUESDAY, DECEMBER 13, 2011 AT 6:30 P.M.
LOCATION: City Council Chambers, Second Floor, Santa Monica City Hall
1685 Main Street, Santa Monica, California
HOW TO COMMENT
The City of Santa Monica encourages public comment. You may comment at the Planning
Commission public hearing, or by writing a letter. Written information will be given to the
Planning Commission at the meeting.
Address your letters to: Steve Mizokami, Associate Planner
Re: 11DEV011
City Planning Division
1685 Main Street, Room 212
Santa Monica, CA 90401
MORE INFORMATION
If you want more information about this project or wish to review the project file, please contact
Steve Mizokami at (310) 458 -8341, or by e-mail at steve.mizokami @sm oq vnet. The Zoning
Ordinance is available at the Planning Counter during business hours and on the City's web site
at www.sm og vnet.
The meeting facility is wheelchair accessible. For disability - related accommodations, please
contact (310) 458 -8341 or (310) 458 -8696 TTY at least 72 hours in advance. Every attempt will
made to provide .the requested accommodation. All written materials are available in alternate
format upon request. Santa Monica Big Blue Bus Lines numbered 2, 3, Rapid 3, and 9 serve
City Hall.
Pursuant to California Government Code Section 65009(b), if this matter is subsequently
challenged in Court, the challenge may be limited to only those issues raised at the public
hearing described in this notice, or in written correspondence delivered to the City of Santa
Monica at, or prior to, the public hearing.
ESPANOL
Esto es una noticia de una audiencia publica para revisar applicaci6nes proponiendo desarrollo
en 'Santa Monica. Si deseas mas informaci6n, favor de Ilamar a Carmen Gutierrez en la
Division de Planificaci6n al numero (310) 458 -8341.
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APPROVED AS TO FORM:
Amanda Schachter
Planning Manager
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ATTACHMENT E
APPLICANT'S AFFORDABLE
HOUSING FEE ALTERNATIVE CHART
401 Broadway
33
Unit #
201
202
203
301
302
303
401 Broadway
Affordable Housing Fee Alternative: 6 On -site Units vs. Fee
- Unit type
0 Bedroom
0 Bedroom
0 Bedroom
0 Bedroom
0 Bedroom
0 Bedroom
Affordable Rent
$747.00
$747.00
$747.00
$747.00
$747.00
$747.00
Total 6 Units $4,482.00
Affordable Housing Fee Option
23,913 square feet - Residential
x 26.79 per square foot — in -lieu fee
$640,629.27 — In Lieu Fee
Market Rent
$1750.00
$1750.00
$1750.00
$1750.00
$1750.00
$1750.00
$10,500.00
Gross Benefit Provided () $72,216.00 NOI Loss
$72,216.00 @ 4% Cap Rate = $1,805,400
$72,216.00 @ 4.5% Cap Rate = $1,604,800
Net Benefit of On -Site Housing vs. In -Lieu Fee
Assuming a 4% Cap Rate = $1,164,771
Assuming a 4.5% Cap Rate = $964,171
34
Annual NOI Loss
$12,036.00
$12,036.00
$12,036.00
$12,036.00
$12,036.00
$12,036.00
$72,216.00
ATTACHMENT F
PROJECT PLANS & RENDERINGS
35