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sr-011012-7bc7�+ Ypf City Council Report Santa Monica, City Council Meeting: January 10, 2012 Agenda Item: '1^ E5 To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Ordinance 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 Recommended Action Staff recommends that the City Council adopt the attached ordinance. Executive Summary At its meeting on December 13, 2011, the City Council introduced for first reading an ordinance 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. The ordinance is now presented to the City Council for adoption. Prepared by: Marsha Jones Moutrie, City Attorney Approved: Forwarded to Council: ate Marsh Jones - f�Jloutrie Rod Gould City A torney ) City Manager 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 DevAgmt18 Revised: December 13, 2011 Table Of Contents RECITALS ARTICLE 1 DEFINITIONS ........................................................................... ..............................3 ARTICLE 2 DESCRIPTION OF THE PROJECT ......................................... ..............................5 2.1 General Description ....................................................... ..............................5 2.2 Principal Components of the Project ............................. ..............................5 2.3 No Obligation to Develop .............................................. ..............................5 2.4 Vested Rights ................................................................. ..............................6 2.5 Uses ................................................................................ ..............................7 2.6 Alcoholic Beverage Pennits .......................................... ..............................9 2.7 Right to Future Subdivision of Property for Purposes Other Than Establishment of Residential Condominiums ............... .............................11 2.8 Project and Community Benefits ................................. ..............................1 l 2.9 Prohibited Activities in the Public Use Area ................ .............................18 2.10 Design ........................................................................... .............................18 2.11 Developer's Obligations with Respect to Parking ........ .............................19 ARTICLE 3 CONSTRUCTION ..................................................:............ .............................20 3.1. Construction Mitigation Plan ........................................ .............................20 3.2. Construction Hours ....................................................... .............................20 3.3. Outside Building Permit Issuance Date ........................ .............................20 3.4. Construction Period ...................................................... .............................20 3.5. Tiebacks ........................................................................ .............................20 3.6. Damage or Destruction ................................................. .............................21 ARTICLE 4 PROJECT FEES, EXACTIONS AND CONDITIONS ............ .............................21 4.1 Fees, Exactions, and Conditions ................................... .............................21 4.2 Conditions on Modifications ......................................... .............................21 4.3 Floor Area for Fees Calculations .................................. .............................21 4.4 Implementation of Conditions of Approval .................. .............................21 ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS .............21 5.1 Development Standards for the Property; Existing Regulations ...............21 DevAgmt18 Revised: December 13, 2011 DevAgmt18 Revised: December 13, 2011 5.2 Permitted Subsequent Code Changes ........................... .............................23 5.3 Common Set of Existing Regulations ........................... .............................24 5.4 Conflicting Enactments ................................................. .............................24 5.5 Timing of Development ................................................ .............................24 ARTICLE 6 ARCHITECTURAL REVIEW BOARD .................................. .............................25 6.1 Architectural Review Board Approval ......................... .............................25 6.2 Concurrent Processing .................................................. .............................25 ARTICLE 7 CITY TECHNICAL PERMITS ................................................ .............................25 7.1 Definitions ..................................................................... .............................25 7.2 Diligent Action by City ................................................. .............................26 7.3 Conditions for Diligent Action by the City ................... .............................26 7.4 Duration of Technical City Permits .............................. ...................:.........27 ARTICLE 8 AMENDMENT AND MODIFICATION ................................. .............................27 8.1 Amendment and Modification of Development Agreement .....................27 ARTICLE9 TERM ....................................................................................... .............................28 9.1 Effective Date ............................................................... .............................28 9.2 Term .............................................................................. .............................28 ARTICLE 10 PERIODIC REVIEW OF COMPLIANCE .............................. .............................28 10.1 City Review .................................................................. .............................28 10.2 Evidence of Good Faith Compliance ............................ .............................28 10.3 Information to be Provided to Developer ..................... .............................28 10.4 Notice of Breach; Cure Rights ...................................... .............................29 10.5 Failure of Periodic Review ........................................... .............................29 10.6 Termination of Development Agreement ..................... .............................29 10.7 City Cost Recovery ....................................................... .............................29 ARTICLE 11 DEFAULT ................................................................................ .............................29 11.1 Notice and Cure ............................................................ .............................29 11.2 Remedies for Monetary Default .................................... .............................30 11.3 Remedies for Non - Monetary Default ........................... .............................30 11.4 Modification or Termination of Agreement by City ..... .............................32 11.5 Cessation of Rights and Obligations ............................. .............................33 11.6 Completion of Improvements ....................................... .............................33 ARTICLE 12 MORTGAGEES ....................................................................... .............................33 DevAgmt18 Revised: December 13, 2011 12.1 Encumbrances on the Property ..................................... .............................33 ARTICLE 13 TRANSFERS AND ASSIGNMENTS ..................................... .............................35 13.1 Transfers and Assignments ........................................... .............................35 13.2 Release Upon Transfer .................................................. .............................35 ARTICLE 14 INDEMNITY TO CITY ........................................................... .............................36 14.1 Indemnity ...................................................................... .............................36 14.2 City's Right to Defense ................................................. .............................36 ARTICLE 15 GENERAL PROVISIONS ....................................................... .............................36 15.1 Notices .......................................................................... .............................36 15.2 Entire Agreement; Conflicts ......................................... .............................37 15.3 Binding Effect ............................................................... .............................37 15.4 Agreement Not for Benefit of Third Parties ................. .............................38 15.5 No Partnership or Joint Venture ................................... .............................38 15.6 Estoppel Certificates ..................................................... .............................38 15.7 Time .............................................................................. .............................38 15.8 Excusable Delays .......................................................... .............................38 15.9 Governing Law ............................................................. .............................39 15.10 Cooperation in Event of Legal Challenge to Agreement ...........................39 15.11 Attorneys' Fees ............................................................. .............................39 15.12 Recordation ................................................................... .............................40 15.13 No Waiver ..................................................................... .............................40 15.14 Construction of this Agreement .................................... .............................40 15.15 Other Governmental Approvals .................................... .............................40 15.16 Venue .......................................................................... .............................41 15.17 Exhibits ......................................................................... .............................41 15.18 Counterpart Signatures .................................................. .............................42 15.19 Certificate of Performance ............................................ .............................42 15.20 Interests of Developer ................................................... .............................42 15.21 Operating Memoranda .................................................. .............................42 15.22 Acknowledgments, Agreements and Assurance onthe Part of Developer ............................................... .............................43 15.23 Not a Public Dedication ................................................ .............................43 15.24 Other Agreements ......................................................... .............................43 DevAgmt18 Revised: December 13, 2011 15.25 Severability and Termination ........................................ .............................43 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 DevAgmt18 Revised: December 13, 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 "City "), with reference to the following facts: RECITALS A. Pursuant to California Government Code Sections 65864 et seq., Chapter 9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No. 2356 (collectively, the "Development Agreement Statutes "), the City is authorized to enter into binding development agreements with persons or entities having a legal or equitable interest in real property for the development of such real property. B. 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 "CEO A ") and designated SCH No. 2009031022 ( "Draft EIR "). 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 DevAgmt18 Revised: December 13, 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 DevAgmt18 Revised: December 13, 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 "). 1.4 "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). DevAgmt18 Revised: December 13, 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 "LEED© Rating System" means the Leadership in Energy and Environmental Design (LEED®) 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 " Proiect 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. 4 DevAgmt18 Revised: December 13, 2011 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 oil the Effective Date, as set forth in its entirety in Exhibit "E" (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: 1. 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, including six (6) studio affordable Rental Housing units as specified in Sections 2.8.1 and 2.8.2(a), and eight (8) will be one- bedroom units. 2. 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. DevAgmt18 Revised: December 13, 2011 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. 2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary, Developer shall be required to implement all conditions required under this Agreement in accordance with Exhibit "D ". 2.3.4 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 "Major 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; 6 DevAgmt18 Revised: December 13, 2011 (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. 7 DevAgmt18 Revised: December 13, 2011 (b) On the ground floor: Any nonresidential uses permitted by the Code in effect at the time the use is established; provided, however that all such uses shall be primarily neighborhood - serving goods, services or retail uses 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. 8 DevAgmt18 Revised: December 13, 2011 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. 9 DevAgmt18 Revised: December 13, 2011 (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 10 DevAgmt18 Revised: December 13, 2011 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 Purnoses 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; (vii) various standard public improvements and fees; and (viii) Developer shall meet its affordable housing obligation through the development of on -site units for very -low income tenants pursuant to the City's Affordable Housing Production Program (Chapter 9.56 of the Existing Regulations) except that all affordable housing units shall be studio units of not less than 336 square feet as shown on the Project Plans. 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. 11 DevAgmt18 Revised: December 13, 2011 I . On -Site Affordable Housing. Instead of paying a fee equal to 60% of the City's cost of constructing an affordable housing unit, Developer has agreed to provide and shall provide a sixth on -site affordable unit for very -low income tenants pursuant to the City's Affordable Housing Production Program (Chapter 9.56 of the Existing Regulations) except that the sixth unit shall be a studio unit of not less than 336 square feet as shown on the Project Plans. 2. 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 commercial. Furthermore, Developer shall hold at least one rideshare event annually for 12 DevAgmt18 Revised: December 13, 2011 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)(H) below. (2) Measures Applicable to Project's Commercial Component On1y: 9. Target AVR. 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 . 13 DevAgmt18 Revised: December 13, 2011 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 14 DevAgmtl8 Revised: December 13, 2011 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 nonnal 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 Subside. 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 15 DevAgmt18 Revised: December 13, 2011 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. 16 DevAgmt18 Revised: December 13, 2011 (c) Downtown Transit and Circulation Infrastructure Contribution. Or. or before issuance of a building permit for the Project, Developer shall make a $125,000 transit and circulation infrastructure contribution to the City to be specifically used in the Downtown area. (d) LEEDO 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 LEED® credits equivalent to a "Silver" certification under the LEEDO Rating System ( "LEEDO Silver Requirement "). For purposes of clarity, Developer shall design the Project in a manner that achieves the LEEDO Silver Requirement; provided, however, that Developer shall not be required to pay to the Green Building Certification Institute the fees required to obtain a LEEDO certificate. (1) Developer shall confirm to the City that the design for the Project has achieved the LEEDO 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 LEEDO credits (that shall be prepared by the LEEDO accredited professional) for review by the City of Santa Monica Green Building Program Advisor ( "Advisor'), along with a narrative to demonstrate that the Project is likely to achieve the LEEDO 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 LEEDO credits identified in clause (2) above (prepared by the LEEDO accredited professional) for review by the Advisor to demonstrate that the Project is likely to achieve the 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 LEEDO credits identified in clause (2) 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. (5) Notwithstanding the foregoing, if the Advisor has not yet approved the LEED& 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. 17 DevAgmt18 Revised: December 13, 2011 (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 g eiyht. 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 18 DevAgmt18 Revised: December 13, 2011 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 Signage. The location, size, materials and color of any signage shall be reviewed by the ARB (or Planning Commission on appeal) in accordance with the procedures set forth in 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. 2.11.3 hi the event Developer arranges for off -site parking for residential tenants, any tenant occupying one of the affordable housing units who voluntarily chooses to lease a parking space shall pay no more than Developer's actual cost for the parking space. 19 DevAgmtl8 Revised: December 13, 2011 ARTICLE 3 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 (36"') full calendar month after the Effective Date; provided that the Outside Building Permit Issuance Date may be extended in accordance with the remainder of this paragraph. If the approval by the ARB of the Project design does not occur within four (4) months of the submittal by Developer to the ARB of the Project design, then the Outside Building Permit Issuance Date shall be extended one month for each additional month greater than four that the final ARB approval is delayed. At any time before the thirty -sixth (36th) full calendar month after the Effective Date, Developer may deliver written notice to the Planning Director, requesting an extension of the Outside Building Permit Issuance Date for an additional twelve (12) months. The Planning Director shall grant such extension if Developer can show reasonable cause why Developer will not be able to obtain the building permit for the Project by the initial Outside Building Permit Issuance Date and can demonstrate that: (a) the condition of the Property will not adversely affect public health or safety and (b) the continued delay will not create any unreasonable visual or physical detriment to the neighborhood. 3.4. Construction Period. Construction of the Project shall be subject to the provisions. of SMMC Section 8.08.070. 3.5. Tiebacks. City will provide Developer with tiebacks, subject to reasonable terms and conditions, for 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. 20 DevAgmt18 Revised: December 13, 2011 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 21 DevAgmt18 Revised: December 13, 2011 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. 22 DevAgmt18 Revised: December 13, 2011 5.2 Permitted Subsequent Code Changes. 5.2.1 Applicable Subsequent Code Changes. Notwithstanding the terms of Section 5.11 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. 23 DevAgmt18 Revised: December 13, 2011 (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 24 DevAgmt18 Revised: December 13, 2011 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: 7.1.1 "Technical City Permits" means any Ministerial Approvals, consents or permits from the City or any office, board, commission, department, division or agency of the City, which are necessary for the actual construction of the Project or any portion thereof in accordance with the Project 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. 25 DevAgmt18 Revised: December 13, 2011 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 Permit 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 (e) 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 26 DevAgmt18 Revised: December 13, 2011 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 1 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 terns 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. 27 DevAgmtl8 Revised: December 13, 2011 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. 10.3 Information to be Provided to Developer. Prior to any public hearing concerning the Periodic Review of this Agreement, the City shall deliver to Developer a copy of all staff reports prepared in connection with a Periodic Review, written comments from the public and, to the extent practical, all related exhibits concerning such Periodic Review. If the City delivers to Developer a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver 28 DevAgmt18 Revised: December 13, 2011 to Developer a copy of all staff reports prepared in connection with such Notice of Breach, all written comments from the public and all related exhibits concerning such Notice of Breach. 10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City reasonably concludes on the basis of substantial evidence that Developer has not demonstrated that it is in good faith compliance with this Agreement, then the City may issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1 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 11.1 Notice and Cure. 11.1.1 Breach. If either Party fails to substantially to perform any term, covenant or condition of this Agreement which is required on its part to be performed (a `Breach "), the non - defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non - defaulting Party has first sent a written notice of Breach (a "Notice of Breach "), in the manner required by Section 15. 1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice of Breach to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance with Section 12. 11.1.2 Monetary Breach. In the case of a monetary Breach by Developer, Developer shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by Developer of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable evidence of the Excusable Delay. 29 DevAgmtl8 Revised: December 13, 2011 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. 11.3.3 Writ of Mandate. The City and Developer hereby stipulate that Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy any Event of Non- 30 DevAgmt18 Revised: December 13, 2011 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 thef'roject. 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 31 DevAgmtl8 Revised: December 13, 2011 (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 32 DevAgmt18 Revised: December 13, 2011 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 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Developer has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit issued by the City, then Developer shall have acquired a vested right to complete construction of the Building in accordance with the terms of the building permit and occupy or use each such Building upon completion for the uses permitted for that Building as provided in this Agreement. Any Building completed or occupied pursuant to this Section 11.6 shall be considered legal non- conforming subject to all City ordinances standards and policies as they then exist governing legal non - conforming buildings and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district. ARTICLE 12 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 33 DevAgmt18 Revised: December 13, 2011 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; 34 DevAgmt18 Revised: December 13, 2011 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 Proper. 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 35 DevAgmt18 Revised: December 13, 2011 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 Tern 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. I£ 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 36 DevAgmtl8 Revised: December 13, 2011 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 Kutcher & Kozal, LLP 1250 Sixth Street, Suite 200 Santa Monica, California 90401 Attention: Christopher M. Harding, Esq. Notice given in any other manner shall be effective when received by the addressee. Any Party may change the addresses for delivery of notices to such Party by delivering notice to the other Party in accordance with this provision. 15.2 Entire Agreement; Conflicts. This Agreement represents the entire agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Existing Regulations, then the provisions of this Agreement shall prevail. 15.3 Binding Effect. The Parties intend that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property during the Term for the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of all successors -in- interest to the Parties hereto. Every Party who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Project during the Tenn 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. 37 DevAgmt18 Revised: December 13, 2011 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: 38 DevAgmt18 Revised: December 13, 2011 (a) War, insurrection, walk -outs, riots, acts of terrorism, floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused performances; (b) Governmental restrictions or moratoria imposed by the City or by other governmental entities or the enactment of conflicting State or Federal laws or regulations; (c) The imposition of restrictions or moratoria by judicial decisions or by litigation, contesting the validity, or seeking the enforcement or clarification of, this Agreement whether instituted by Developer, the City or any other person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or any permit or approval Developer deems necessary or desirable for the implementation of the Project; (d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement; (e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes; and (f) Failure of the City to timely perform its obligations hereunder, including its obligations under Section 7.2 above. 15.8.2 Under no circumstances shall the inability of Developer to secure financing be an Excusable Delay to the obligations of Developer. 15.8.3 In order for an extension of time to be granted for any Excusable Delay, Developer must deliver to the City written notice of the commencement of the Excusable Delay within sixty (60) days after the date on which Developer becomes aware of the existence of the Excusable Delay. The extension of time for an Excusable Delay shall be for the actual period of the delay. 15.8.4 Nothing contained in this Section 15.8 is intended to modify the terms of either Section 5.1.2 or Section 5.5 of this Agreement. 15.9 Governing Law. This Agreement shall be governed exclusively by the provisions hereof and by the laws of the State of California. 15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any court action or other proceeding commenced that includes any challenge to the validity, enforceability or any term or provision of this Agreement, then Developer shall indemnify, hold harmless, pay all costs actually incurred, and provide defense in said action or proceeding, with counsel reasonably satisfactory to both the City and 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 DevAgmt18 Revised: December 13, 2011 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 Aareement..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: C5] DevAgmtl8 Revised: December 13, 2011 (a) the processing of applications for and issuing of all Discretionary Approvals requiring the exercise of judgment and deliberation by City; (b) the holding of any required public hearings; and (c) the processing of applications for and issuing of all City Technical Permits requiring the determination of conformance with the Existing Regulations. 15.15.3 No Revocation. The City shall not revoke or subsequently disapprove any approval or future approval for the development of the Project or the Property once issued by the City provided that the development of the Project or the Property is in accordance with such approval. Any disapproval by the City shall state in writing the reasons for such disapproval and the suggested actions to be taken in order for approval to be granted. 15.15.4 Processing During Third Party Litigation. If any third party lawsuit is filed against the City or Developer relating to this Agreement or to other development issues affecting the Property, the City shall not delay or stop the development, processing or construction of the Property, or issuance of the City Technical Permits, unless the third party obtains a court order preventing the activity. The City shall not stipulate to or fail to oppose the issuance of any such order. Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8.1(c), after service on the City or Developer of the initial petition or complaint challenging this Agreement or the Project, the Developer may apply to the Planning Director for a tolling of the applicable deadlines for Developer to otherwise comply with this Agreement. Within 40 days after receiving such an application, the Planning Director shall either toll the time period for up to five years during the pendency of the litigation or deny the requested tolling. 15.15.5 State, Federal or Case Law. Where any state, federal or case law allows the City to exercise any discretion or take any act with respect to that law, the City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to carry out in good faith the terns 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 41 DevAgmt18 Revised: December 13, 2011 Exhibit "D" Conditions of Approval Exhibit "E ": SMMC Article 9 (Planning and Zoning) Exhibit "Y': Construction Mitigation Plan Exhibit "G ": 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 42 DevAgmt18 Revised: December 13, 2011 Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council. 15.22 Acknowledgments, Agreements and Assurance on the Part of Developer. 15.22.1 Developer's Faithful Performance. The Parties acknowledge and agree that Developer's faithful performance in developing the Project on the Property and in constructing and installing certain public improvements pursuant to this Agreement and complying with the Existing Regulations will fulfill substantial public needs. The City acknowledges and agrees that there is good and valuable consideration to the City resulting from Developer's assurances and faithful performance thereof and that same is in balance with the benefits conferred by the City on the Project. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable. Developer acknowledges that the consideration is reasonably related to the type and extent of the impacts of the Project on the community and the Property, and further acknowledges that the consideration is necessary to mitigate the direct and indirect impacts caused by Developer on the Property. 15.22.2 Obligations to be Non- Recourse. As a material element of this Agreement, and in partial consideration for Developer's execution of this Agreement, the Parties each understand and agree that the City's remedies for breach of the obligations of Developer under this Agreement shall be limited as described in Sections 11.2 through 11.4 above. 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. 43 DevAgmt18 Revised: December 13, 2011 This Agreement is executed by the Parties on the date first set forth above and is made effective on and as of the Effective Date. DEVELOPER: 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 By: Name: Robert A. Grigsby Title: Successor Trustee CITY: CITY OF SANTA MONICA, a municipal corporation C Rod Gould City Manager ATTEST: C MARIA M. STEWART City Clerk APPROVED AS TO FORM: C MARSHA JONES MOUTRIE City Attorney 44 DevAgmt18 Revised: December 13, 2011 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 45 DevAgmt18 Revised: December 13, 2011 EXHIBIT "B" Project Plans 46 DevAgmt18 Revised: December 13, 2011 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 PW) • 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 8.108.140) (collected by PW). • Wastewater Capital Facilities Fee (SMMC Section 7.04.460) (collected by PW) • Water Capital Facilities Fee & Water Meter Instillation fee (Water Meter Permit fee) (SMMC Section 7.12.090) (collected by PW) • Fireline Meter fee (SMMC Section 7.12.090) (collected by PW) • 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. 47 DevAgmt18 Revised: December 13, 2011 (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) (PW) • Utility Excavation Permit fee (SMMC 7.04.790(b)) (PW) • Street Permit fee (SMMC 7.04.790) (PW) 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. 48 DevAgmt18 Revised: December 13, 2011 EXHIBIT "D" Conditions of Approval Project Specific Conditions 1. On -Site Affordable Housing. Developer shall meet its affordable housing obligation through the development of on -site units for very-low income tenants pursuant to the City's Affordable Housing Production Program (SMMC Chapter 9.56). 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 "): Measures Applicable to Entire Project (Commercial and Residential Elements A. Transportation Information Center. The Developer shall maintain, for the life of the Project, a Transportation Information Center ( "TIC "). The location of the TIC shall be mutually agreed upon by the Planning Director and the Developer prior to the City's issuance of a certificate of occupancy for the Building, and may be relocated from time to time thereafter upon mutual agreement of the Developer (or Developer's successor in interest) and the Planning Director. The TIC shall include information for employees, visitors and residents about: • Local public transit services, including current maps, bus lines, light rail lines, fare information, schedules for public transit routes serving the Project, telephone numbers and website links for referrals on transportation information, including numbers for the regional ridesharing agency and local transit operators, ridesharing promotional material supplied by commuter - oriented organizations and shuttles; and • Bicycle facilities, including routes, rental and sales locations, on -site bicycle facilities, bicycle safety information and the shower facility for the commercial tenants of the Project. The TIC shall also include a list of facilities available for carpoolers, vanpoolers, bicyclists, transit riders and pedestrians at the site, 49 DevAgmt18 Revised: December 13, 2011 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). Measures Applicable to Proiect's Commercial Component Onl 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 50 DevAgmt18 Revised: December 13, 2011 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 51 DevAgmt18 Revised: December 13, 2011 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 52 DevAgmt18 Revised: December 13, 2011 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. F. 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. G. Employee Guaranteed Return Trip. The Developer shall require in all leases it executes as landlord for space within the Project that 53 DevAgmt18 Revised: December 13, 2011 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. 54 DevAgmt18 Revised: December 13, 2011 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 $125,000 transit and circulation infrastructure contribution to the City to be specifically used for improvements in the Downtown area. 4. LEEDO 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 LEEDO credits equivalent to a "Silver" certification under the LEEDO Rating System ( "LEEDO Silver Requirement "). For purposes of clarity, Developer shall design the Project in a manner that achieves the LEEDO Silver Requirement; provided, however, that Developer shall not be required to pay to the Green Building Certification Institute the fees required to obtain a LEEDO certificate. A. Developer shall confirm to the City that the design for the Project has achieved the LEEDO 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 LEEDO credits (that shall be prepared by the LEEDO accredited professional) for review by the City of Santa Monica Green Building Program Advisor ( "Advisor "), along with a narrative to demonstrate that the Project is Likely to achieve the LEEDO Silver Requirement. 55 DevAgmt18 Revised: December 13, 2011 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 Design. 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 56 DevAgmt18 Revised: December 13, 2011 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. 57 DevAgmt18 Revised: December 13, 2011 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. Project 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. 58 DevAgmt18 Revised: December 13, 2011 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 59 DevAgmt18 Revised: December 13, 2011 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 60 DevAgmt18 Revised: December 13, 2011 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 Encroachment of on -site improvements into public right -of -way 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 61 DevAgmt18 Revised: December 13, 2011 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.lapubiicheaIth.org /eh /progs /envirp /ehcross.htm. Prior to issuance of a Certificate of Occupancy, a cross - connection inspection shall be completed. 62 DevAgmtl8 Revised: December 13, 2011 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. 63 DevAgmt18 Revised: December 13, 2011 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 Recycling 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: 64 DevAgmt18 Revised: December 13, 2011 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 Reauirements 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. 65 DevAgmt18 Revised: December 13, 2011 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) 66 DevAgmt18 Revised: December 13, 2011 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. 67 DevAgmt18 Revised: December 13, 2011 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. 68 DevAgmt18 Revised: December 13, 2011 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: 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. iii. When two access roads are required, they shall be placed a distance apart equal to not less than one half of the length of the maximum overall diagonal dimension of the property or area to be accessed measured in a straight line between access. 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. 69 DevAgmt18 Revised: December 13, 2011 iii. At least one of the required access roads meeting this condition shall be located within a minimum of 15 feet and maximum of 30 feet from the building and shall be a positioned parallel to one entire side of the building. 20 Y20' �26'R -. --26' R ' 26' TYP' 20 — 20' —� 96' DIAMETER 60. -Y. MINIMUM CLEARANCE CUL -DE -SAC AROUND A FIRE HYDRANT 601 60' 28'R TYP <-70'- 28' R TYP.' 20'---I -ry -26' -s X20, 120'HAMMERHEAD 70 DevAgmt18 Revised: December 13, 2011 ACCEPTABLE ALTERNATIVE TO 120' HAMMERHEAD 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. 71 DevAgmt18 Revised: December 13, 2011 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. 72 DevAgmt18 Revised: December 13, 2011 • 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 73 DevAgmt18 Revised: December 13, 2011 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} 74 DevAgmt18 Revised: December 13, 2011 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 75 DevAgmt18 Revised: December 13, 2011 building size). This standard applies to multiple family dwellings, hotels, high rise, commercial, industrial, etc. NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL PRESSURE. B. Building plans The Department's Fire Prevention Engineering Section shall review building plans and apply fire flow requirements and hydrant spacing in accordance with the following: 1. Residential Building Occupancy Classification a. Sinale familv dwellinas - Fire Zone 3 (Less than 5.000 sauare feet Duration Public Fire Flow of Flow Hydrant Spacing On a lot of one acre or more 750 GPM 2 hrs. 600 ft. On a lot less than one acre 1,250 GPM 2 hrs 600 ft. - b. Single family dwellings — VHFHSZ (Less than 5,000 square feet) On a lot of one acre or more 1,000 GPM 2 hrs. 600 ft. On a lot less than one acre 1,250 GPM 2 hrs . 600 ft. NOTE: FOR SINGLE FAMILY DWELLINGS GREATER THAN 5,000 SQUARE FEET IN AREA SEE TABLE 76 DevAgmt18 Revised: December 13, 2011 Duration Public Fire Flow of Flow Hydrant Spacing c. Two family dwellings — VHFHSZ (Less than 5.000 square feet) Duplexes 1,500 GPM 2 hrs 600 ft. ,-2. Mobile Home Park 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). C. 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. 77 DevAgmt18 Revised: December 13, 2011 (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: 78 DevAgmt18 Revised: December 13, 2011 (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 79 DevAgmt18 Revised: December 13, 2011 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 80 DevAgmt18 Revised: December 13, 2011 E F 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 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), m DevAgmt18 Revised: December 13, 2011 then a hydrant(s) upgrade will be required. This upgrade shall apply regardless of flow requirements. 5. The owner - developer shall be responsible for making the necessary arrangements with the local water purveyor for the installation of all public facilities. 6. Approved fire hydrant barricades shall be installed if curbs are not provided (see Figures 1, 2, and 3 following on pages 11 and 12). G. Hydrant Specifications All required public and on -site fire hydrants shall be installed to the following specifications prior to flow test and acceptance of the system. 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. 82 DevAgmM Revised: December 13, 2011 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). 83 DevAgmt18 Revised: December 13, 2011 Barricade /Clearance Details CONCRETE CAP G BARRICADE POST CONCRETE FILLED 3' MIN, MIN. a DIA. SCHEDULE 40 STEEL. SEE NOTE Si IV, Figure 1 Figure 2 CONCRETE A MIN, 's.em✓ PLAN FIRE HYDRANT BARRICADES (TYPICAL) 84 DevAgmt18 Revised: December 13. 2011 G "x4 HYt Figure 3 Notes: 0 d 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. 85 DevAgmt18 Revised: December 13, 2011 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. 86 DevAgmt18 Revised: December 13, 2011 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, 87 DevAgmt18 Revised: December 13, 2011 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. :: DevAgmt18 Revised: December 13, 2011 EXHIBIT "E" SMMC Article 9 (Planning and Zoning Ordinance) 89 DevAgmt18 Revised: December 13, 2011 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; 90 DevAgmt18 Revised: December 13, 2011 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: i.. During clearing, grading, earth moving, excavation, or transportation of cut or fill materials, water trucks or sprinkler systems are to be used to the extent necessary to prevent dust from leaving the site and to create a crust after each day's activities cease. ii. Vehicles hauling dirt or other construction debris from the site shall cover any open load with a tarpaulin or other secure covering to minimize dust emissions. Immediately after commencing dirt removal from the site, the general contractor shall provide the City with written certification that all trucks leaving the site are covered in accordance with this condition of approval. iii. During clearing, grading, earth moving, excavation, or transportation of cut or fill materials, streets and sidewalks within 150 feet of the site perimeter shall be swept and cleaned a minimum of twice weekly or as frequently as required by the PWD. iv. During construction, water trucks or sprinkler systems shall be used to keep all areas of vehicle movement damp enough to prevent dust from leaving the site. At a minimum, this would include wetting 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: 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. 91 DevAgmt18 Revised: December 13, 2011 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 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. 92 DevAgmt18 Revised: December 13, 2011 • An appointed construction relations officer shall act as a community liaison concerning onsite construction activity including resolution of issues related to PM10 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 93 DevAgmt18 Revised: December 13, 2011 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 shalt 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. 94 DevAgmt18 Revised: December 13, 2011 EXHIBIT "G" Assignment and Assumption Agreement 95 DevAgmt18 Revised: December 13, 2011 Recording Requested By and When Recorded Mail To: Christopher M. Harding Harding Larmore Kutcher & 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. Assignment. Assignor hereby assigns and transfers to Assignee all of Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Project Site. Assignee hereby accepts such assignment from Assignor. 2. Assumption. Assignee expressly assumes and agrees to keep, perform, and fulfill all the terns, 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 96 DevAgmt18 Revised: December 13, 2011 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 C "ASSIGNEE" 97 DevAgmt18 Revised: December 13, 2011 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 R Planning Director 98 DevAgmt18 Revised: December 13, 2011 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: Purpose. The purpose of the Local Hiring Policy is to facilitate the employment by Developer and its contractors at the Project of residents of the City of Santa Monica (the "Targeted Job Applicants "), and in particular, those residents who are "Low- Income Individuals" (defined below) by ensuring Targeted Job Applicants are aware of Project construction employment opportunities and have a fair opportunity to apply and compete for such jobs. 2. Findings. a. Approximately 73,000- 74,000 individuals work in the City. The City has a resident labor force of approximately 56,800. However, only about one -third (32.2 percent) of the City's resident labor force works at jobs located in the City, with the balance working outside of the City. Consequently, a significant portion of the City's resident and non- resident work force is required to commute long distances to find work, causing increased traffic on state highways, increased pollution, increased use of gas and other fuels and other serious environmental impacts. b. Due to their employment outside of the City, many residents of the City are forced to leave for work very early in the morning and return late in the evening, often leaving children and teenagers alone and unsupervised during the hours between school and the parent return from work outside the area. c. Absentee parents and unsupervised youth can result in increased problems for families, communities and the City as a whole, including, but not limited to, increased crime, more frequent and serious injuries, poor homework accomplishments, failing grades and increased high school dropout rates. 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. 99 DevAgmt18 Revised: December 13, 2011 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. C. "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 "H," 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 Prioritv: Low Income Individuals living within one mile of the Project; b. Second Priority: Low Income hidividuals 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. 100 DevAgmtl8 Revised: December 13, 2011 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. 101 DevAgmt18 Revised: December 13, 2011 Reference Ordinance No. 2387 (CCS).