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O2395ORDINANCE NUMBER 2395 (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA MONICA, A MUNICIPAL CORPORATION AND MAXSER & COMPANY, A CALIFORNIA LIMITED PARTNERSHIP WHEREAS, on 'July 24, 2007, Maxser& Company, a California Limited Partnership, submitted an application for a development agreement for a mixed -use project that will include a full - service hotel, restaurant space and retail space and which involves the rehabilitation of an existing landmark building and new construction on an existing surface parking lot and adjacent property; and WHEREAS, a Draft Environmental Impact Report dated July 2011 and a Final Environmental Impact Report dated December 2011 have been prepared analyzing the environmental effects of the development agreement; and WHEREAS, on March 20, 2012, the City Council adopted resolutions certifying the Final Environmental Report and adopting a statement of overriding considerations and mitigation monitoring plan; and WHEREAS, the development agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan, as described below, and as detailed in the accompanying City Council staff report prepared for this proposed project and the exhibits thereto in that: (a) Consistent with LUCE Policy D1.5, the project focuses new investment on a site that is transit - accessible, can accommodate mixed -use development, contributes to a pedestrian- oriented environment, and can support substantial community benefits and the Policy further identifies the subject property stating that new investment should include the preservation of the Landmark building. (b) Policies D7.5 and D7.6 specifically reference the need for new buildings to respect the context and character - defining features of historic resources and provide that the Secretary of the Interior's Standards shall be used as a tool for preserving character - defining features of historic resources and the project is both consistent with this policy as it includes the rehabilitation and adaptive re -use of the Landmark building, ensuring the long -term viability of a historic resource and it will also be required to obtain a Certificate of Appropriateness for alterations to the Landmark building and Architectural Approval for the new building, which will require findings consistent with the Secretary of Interior's Standards. (c) Policy D1.6 establishes, among others, Wilshire Boulevard as a new perimeter of the Downtown with the intent of providing transitions between the higher intensities of the Downtown and lower intensity residential areas to the north and the proposed project is consistent with this policy with a reduced scale on Wilshire and 7th Street placing more of the mass towards the southern end of the project site, away from the adjacent residential neighborhood to the north. (d) The Downtown District also includes Policy D7.2 that encourages local - serving uses as part of an overall trip reduction strategy and the ground floor 2 retail /restaurant uses are intended not only to serve hotel guests but also provide convenient services within walking distance of the adjacent residential communities in Downtown and north of Wilshire. (e) Consistent with Policy D9.1 which seeks to design and manage streets to be an integral part of the urban open space in the Downtown, the project would widen sidewalks on 7th Street and provide the opportunity for outdoor dining that would help to activate the street. (f) The implementation of a Transportation Demand Management (TDM) plan in efforts to reduce vehicle trips in the area and reduce associated parking demand is consistent with LUCE Circulation Policy T19.2 which seeks appropriate TDM requirements for new development. (g) The project is consistent with LUCE's overall land use policies by providing community benefits for the area, including but not limited to, preservation and adaptive re -use of a Landmark building; a transportation infrastructure contribution that would support capital improvements for transit infrastructure including bicycle facilities, pedestrian network completion, vehicle network improvements, and transit improvements; a local hiring program for construction and employment; internships for local high school and college students; ground floor open space; shared parking; and a TDM plan that provides bicycle facilities for a variety of on -site users and transit subsidies for employees. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The Development Agreement attached hereto as Exhibit 1 and incorporated herein by reference between the City of Santa Monica, a municipal corporation, and Maxser & Company, a California Limited Partnership, is hereby approved. SECTION 2. Each and every term and condition of the Development Agreement approved in Section 1 of this Ordinance shall be and is made a part of the Santa Monica Municipal Code and any appendices thereto. The City Council of the City of Santa Monica finds that public necessity, public convenience, and general welfare require that any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Development Agreement, to the extent of such inconsistencies and no further, be repealed or modified to that extent necessary to make fully effective the provisions of this Development Agreement. SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto, inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any 12 court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaperwithin 15 days after its adoption. This Ordinance shall be effective 30 days from its adoption. APPROVED AS TO FORM: A MAR HA J flES MOU RIE City 1 t orn y I/ 5 EXHIBIT 1 DEVELOPMENT AGREEMENT 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 MAXSER & COMPANY 2012 TABLE OF CONTENTS 1 Recitals :..............................................:........................................................ ............................... 3 Article 1 Definitions .................................. ............................... .............. ............................... Article 2 Description of the Project .................... ................. ............................... • °......•••. .....5 2.1 General Description ..................................................... .. ... . ... .. ..... ... ..:. ... ................ 5 2.2 Principal Components of the Project ...................................... ............................... 5 2.3 No Obligation to Develop "" " " " "' 6 2.4 ........ ............................... Vested Rights .................... ................ ........................ ...6 ... 8 2.5 .......... ............................... Permitted Uses ............. .................. .............................. 2.6 Alcoholic Beverage Permits ......................... ............................... ........................10 2.7 Project and Community Benefits ............................................ .............................10 2.8 Living Wage ............................................................................ .............................23 2.9 Prohibited Activities in the Public Use Area .......................... .............................26 2.10 Parkin ............. .............................26 26 2.11 Design ......................................................... . ..... .............. ... .... .............................. Article 3 Construction ................ ...................... ............................... ....... .............................27 3.1 Construction Mitigation Plan .................................................. .............................27 3.2 Construction Hours ......................... ....................... .............................27 3.3 Outside Building Permit Issuance Date .................................. .............................27 3.4 Construction Period ................................................................ .............................28 3.5 Tiebacks . .......................................................... ....................... .............................28 3.6 Construction Staging ............................... ............................... .............................. 28 3.7 Damage or Destruction ........................................................... .............................28 3.8 Completed and Final Landmarks Commission Review of 718 Wilshire Building................................................................................. ............................... 28 Article 4 Project Fees, Exactions, Mitigation Measures and Conditions ............................28 4.1 Fees, Exactions, Mitigation Measures and Conditions ........... .............................28 4.2 Conditions on Modifications ................................................... .............................29 4.3 Implementation of Mitigation Measures ............................... ............................... 29 Article 5 Effect of Agreement on City Laws and Regulations ............ ............................... 29 5.1 Development Standards for the Property; Existing Regulations .........................29 5.2 Permitted Subsequent Code Changes ................................... ............................... 30 5.3 Common Set of Existing Regulations ..................................... .............................32 5.4 Conflicting Enactments ......................................................... ............................... 32 5.5 Timing of Development ........................................................ ............................... 32 Article6 Design Review ...................................................................... ............................... 32 6.1 Joint Landmarks Commission /Architectural Review Board Body ...................... 32 Article 7 City Technical Permits ............................................................ .............................34 7.1 Definitions ............................................................................... .............................34 7.2 Diligent Action by City ......................................................... ............................... 34 7.3 Conditions for Diligent Action by the City ........................... ............................... 34 7.4 New Technical Requirements ................................................. .............................35 7.5 Duration of Technical City Permits ...................................... ............................... 35 Article 8 Amendment and Modification ................................................ .:...........................36 8.1 Amendment and Modification of Development Agreement ............................... 36 Article9 Term ........................................................................................ .............................36 9.1 Effective Date ......................................................................... .............................36 9.2 Term ........................................................................................ .............................36 Article 10 Periodic Review of Compliance ................................................... .............................36 10.1 City Review ............................................................................ .............................36 10.2 Evidence of Good Faith Compliance ...................................... .............................36 10.3 Information to be Provided to Developer ............................. ............................... 37 10.4 Notice of Breach; Cure Rights ................................................ .............................37 10.5 Failure of Periodic Review ...............:..................... ............................... ..............37 10.6 Termination of Development Agreement ............................... .............................37 37 10.7 City Cost Recovery .......................................... ............................... 38 Article I1 Default .......................................................... ............................... ........................ 38 11.1 Notice and Cure .................................................................... ............................... 11.2 Remedies for Monetary Default .............................................. .............................38 11.3 Remedies for Non - Monetary Default ................................... ............................... 39 11.4 Modification or Termination Agreement by City ................... .............................40 11.5 Cessation of Rights and Obligations ....................................... .............................41 11.6 Completion of Improvements ................................................. .............................42 Article 12 Mortgagees .....:...........................:......................... ............................... .................42 12.1 Encumbrances on the Property ................................... ............................... .........42 Article 13 Transfers and Assignments ..................................................... .............................44 13.1 Transfers and Assignments .......................................... ......................I........ .......44 13.2 Release Upon Transfer ............................................................ ...........................:.44 44 Article 14 Indemnity to City .......................... ...........:................... ........ ............................... ...44 14.1 Indemnity ........................................................................... ............................... 14.2 City's Right to Defense ...... ............................... ................... ............................... 45 Article 15 General Provisions ................... ............................................................................ 45 45 15.1 Notices ................................................ ............................... ... ............................... 15.2 Entire Agreement; Conflicts .................... ............................... .............................4E 15.3 Binding Effect .....................................................................:... .............................46 15.4 Agreement Not for Benefit of Third Parties ........................... .............................47 15.5 No Partnership or Joint Venture ............................................. .............................47 15.6 Estoppel Certificates ............................................................... .............................47 15.7 Time .................... ............................... ................. ............................... ..................47 15.8 Excusable Delays .................................................:.................. .............................47 15.9 Governing Law ....................................................................... .............................48 15.10 Cooperation in Event of Legal Challenge to Agreement ...... ............................... 48 15.11 Attorneys' Fees ....................................................................... .............................49 15.12 Recordation ............... .................................................... ............................... ........49 15.13 No Waiver ............................................................................... .............................49 15.14 Construction of this Agreement .............................................. .............................49 15.15 Other Governmental Approvals .............................................. .............................49 15.16 Venue ..................................................................................... .............................50 15.17 Exhibits . ......................................................... ......................... .............................50 15.18 Counterpart Signatures., ............................................ .........,.... .............................51 15.19 Certificate of Performance ...................................................... .............................51 15.20 Interest of Developer ............................................................... .............................51 15.21 Operating Memoranda ................ ................... ............................... ....................... 51 15.22 Acknowledgments, Agreements and Assurance on the Part of Developer ......... 52 15.23 Not a Public Dedication ........................................................ ............................... 52 15.24 Other Agreements ........................: ............................. ............................... ...........52 15.25 Severability and Termination .................................................. .............................52 Exhibit "A" Legal Description of the Property Exhibit "B" Project Plans Exhibit "C" Permitted Fees and Exactions Exhibit "D" Mitigation Measures and Conditions Exhibit "E" SMMC Article 9 (Planning and Zoning) Exhibit "F" Hotel Conditions of Approval to Dispense Alcohol Exhibit "G" Restaurant "A" Conditions of Approval to Dispense Alcohol Exhibit "H" Restaurant "El" Conditions of Approval to Dispense Alcohol Exhibit "I" Standard Restaurant Conditions to Dispense Alcohol Exhibit "J -1" Local Hiring Program for Construction Exhibit "J -2" Local Hiring Program for Permanent Jobs Exhibit "K" Construction Mitigation Plan Exhibit "L" Assignment and Assumption Agreement DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement "), dated for reference purposes , 2012, is entered into by and between MAXSER & COMPANY, a California limited partnership, also sometimes known as MAXSER & CO., a California limited partnership ( "Developer "), and the CITY OF SANTA MONICA, a municipal corporation organized and existing pursuant to the laws of the State of California and the Charter of the City of Santa Monica (the "City "), with reference to the following facts: RECITALS A. Pursuant to California Government Code Sections 65864, et seq., Chapter 9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No. 2356 (collectively, the "Development Agreement Statutes "), the City is authorized to enter into binding development agreements with persons or entities having a legal or equitable interest in real property for the development of such real property. B. Developer is the owner of approximately 52,500 square feet of land located in the City of Santa Monica, State of California commonly known as 710 Wilshire Boulevard, 718 Wilshire Boulevard, and 1213 -1227 Seventh Street, more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property "). The Property is currently developed with the following improvements: (1) 710 Wilshire Boulevard (also sometimes referred to as 702 Wilshire Boulevard) is improved with the landmark, seven -story retail /office building ( "Landmark Building "). (2) 718 Wilshire Boulevard is improved with a red - brick building, two- stories in height. (3) South of the 702 -718 Wilshire Boulevard parcels, there is a large asphalt parking lot fronting on Seventh Street commonly known as 1213 -1227 Seventh Street ("Seventh Street Lots "). C. The City has included the Property within the Downtown Core land use designation under the City's Land Use and Circulation Element of its General Plan, adopted on July 6, 2010 (the "LUCE "). The Property is located within the C3 Downtown Commercial District and C3 -C Downtown Overlay District under the City's Zoning Ordinance. To aid in the redevelopment of the Property, the City and Developer desire to allow Developer to (1) construct a new building, subterranean parking, and related facilities for hotel and other uses and (2) rehabilitate and adaptively reuse the Landmark Building for hotel use above the ground floor. D. On July 24, 2007, Developer filed an application for a Development Agreement, (the "Development Application ") pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.48.020. The Development Application was designated by the City as Application No. DEV 07 -006. After a series of changes reducing its size and scope, the Development Application is for a mixed -use project that will include a full- service hotel, restaurant space and retail space more fully described in this Agreement. The Development Application includes the rehabilitation of the existing Landmark Building and new construction on the existing surface parking lot and at 718 Wilshire Boulevard, all of which together total approximately 165,000 square feet of Floor Area. E. On April 26, 2011 the City Council adopted Interim Ordinance No. 2356 ( "IZO "). 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 LUCE and its Land Use Designation Map unless developed pursuant to a development agreement adopted in accordance with SMMC Chapter 9.48. Adoption of this Agreement will allow for the issuance of permits for the Project. F. Developer has paid all necessary costs and fees associated with the City's processing of the Development Application and this Agreement. G. The primary purpose of the Project is to create a new full- service hotel project, with restaurant and retail uses, that is pedestrian - friendly and includes the rehabilitation and adaptive reuse of the Landmark Building in the City's Downtown consistent with the LUCE. 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. H. The Developer has assembled a team of experts and professionals to assist with this Project. They include a preservation architect, the project architect, a specialist in the masonry of historic buildings, a structural engineer, a multi - disciplinary building engineering firm, a LEEDO consultant, a general contractor, and legal counsel familiar with historic preservation law and practice, as well as others. Upon completion, rehabilitation and adaptive reuse of the Landmark Building as a hotel will benefit the community in terms of both utilization and architectural preservation. This rehabilitation and adaptive reuse will greatly enhance the Landmark Building's public use and visibility and increase appreciation of its historic features. I. The City Council has determined that a development agreement is appropriate for the proposed development of the Property. This Agreement will (1) eliminate uncertainty in planning for the Project and 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. J. This Agreement is consistent with the public health, safety, and welfare needs of the residents of the City and the surrounding region. The City has specifically considered and approved the impact and benefits of the development of the Project on the Property in accordance with this Agreement upon the welfare of the region. Consistent with the LUCE, the Project will provide a number of public benefits, including without limitation the following: rehabilitation and adaptive reuse of a City landmark, a comprehensive TDM Plan, LEED Silver equivalent, unbundled parking, shared parking, project design including publicly- accessible open space, and a local hiring provision for hotel and restaurant employees. 2 K. The City Council has found that the provisions of this Development Agreement are consistent with the relevant provisions of City's General Plan, including the LUCE. L. On January 25, 2012, the City's Planning Commission held a duly noticed public hearing on the Development Agreement. The Commission continued the item to February 15, 2012. On February 15, 2012, the City's Planning Commission held a second public hearing on the Development Agreement. The Commission recommended that the City Council certify the Environmental Impact Report and approve the Project. M. On March 20, 2012, the City Council held a duly noticed public hearing on the Development Application and at such hearing the City certified the EIR, adopted a Statement of Overriding Considerations, and introduced Ordinance No. for first reading, approving this Agreement. N. On April 10, 2012, the City Council adopted Ordinance No. NOW THEREFORE, in consideration for the covenants and conditions hereinafter set forth, the Parties hereto do hereby agree as follows: ARTICLE 1 DEFINITIONS The terms defined below have the meanings in this Agreement as set forth below. 1.1 "Agreement" means this Development Agreement entered into between the City and Developer as of the Effective Date. 1.2 "ARB" means the City's Architectural Review Board. 1.3 "Average Natural Grade" means 95.38 feet above sea level for the New Construction. 1.4 "California Historical Building Code" means California Health and Safety Code Sections 18950, et seq., and Part 8 of Title 24 of the California Code of Regulations as .of the Effective Date or, in Developer's sole and absolute discretion, a subsequent version of the California Historical Building Code then in effect. 1.5 "City Council' shall mean the City Council of the City of Santa Monica, or its designee. 1.6 "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. 1.7 "Effective Date" has the meaning set forth in Section 9.1 below. 1.8 "Floor Area" has the meaning given that term in Section 9.04.02.030.315 of the Santa Monica Municipal Code ("SMMC "), provided however, that in accordance with the 1Z0, Subterranean Space (regardless of its use) shall not be included in the calculation of Floor Area for the purposes of determining Floor Area Ratio (FAR). The Parties acknowledge that the City is in the process of updating the Zoning Ordinance, and the Parties agree that, upon the City's adoption of the new zoning ordinance, the Developer may make a one -time election whether to have Floor Area have the meaning as contained in Existing Regulations or as contained in the City's new zoning ordinance. The maximum allowable Floor Area for the Project is 165,000 square feet. 1.9 "Floor Area Ratio" and "FAR" mean the Floor Area of the Project, as calculated in accordance with Section 1.8 of this Agreement, divided by the area of the Property. 1.10 "General Plan" or "City General Plan" means the General Plan of the City of Santa Monica, and all elements thereof including the LUCE, as of the Effective Date unless otherwise indicated in this Agreement. 1.11 "Incidental Food Service" has the meaning given that term in Section 9.04.02.030.420 of the SMMC. 1.12 "Including" means "including, but not limited to." 1.13 "Landmarks Commission" means the Landmarks Commission of the City of Santa Monica. 1.14 "LEEDS Rating System" means the Leadership in Energy and Environmental Design (LEEDS) Green Building Rating System For New Construction & Major Renovations adopted by the U.S. Green Building Council. 1.15 "Legal Action" shall mean any action in law or equity. 1.16 "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. 1.17 "Parties" mean both the City and Developer and "Party" means either the City or Developer, as applicable. 1.18 "Planning Director" means the Planning Director of the City of Santa Monica, or his or her designee. 1.19 1 "Project Plans" mean the plans for the Project that are attached to this Agreement as Exhibit `BP' 1.20 "Secretary of Interior Standards" means the Secretary of the Interior Standards for Treatment of Historic Properties published by the U.S. Department of the Interior found at 36 C.F.R. § 68.3 as it may be amended from time to time. 1.21 "Subterranean Space" means all space in the Project below the ground floor as shown on the Project Plans attached as Exhibit "W'. 1.22 "Zoning Ordinance" means the City of Santa Monica Comprehensive Land Use and Zoning Ordinance (Chapter 9.04 of the SMMC) and any applicable Interim Zoning Ordinance, as the same is in effect on the Effective Date, is 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 (a) the ground floor areas identified as Retail and Restaurant on the Project Plans may be used for either Restaurant Use or retail use in the Developer's sole and absolute discretion as long as Restaurant Uses do not exceed 9,730 square feet and (b) 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 components, as well as the other components delineated in the Project Plans, all of which are hereby approved by the City subject to the other provisions of this Agreement: (a) Demolition of the existing two -story building at 718 Wilshire Boulevard containing approximately 7,000 square feet of floor area. (b) Adaptive re -use and rehabilitation of the Landmark Building located at 710 Wilshire Boulevard into a Hotel with 55 guest rooms above the ground floor and 6,949 square feet of ground floor uses including retail uses and Restaurant Uses. (c) Construction of a new building on the Seventh Street Lots and 718 Wilshire Boulevard ( "New Construction "). The New Construction will consist of a structure varying in heights between one and six stories (approximately 19 feet at the top of the podium level to 70 feet at the top of the sixth floor), with a partial seventh floor (81 feet at the top). The New Construction will include 230 guest rooms, approximately 8,724 square feet of retail uses and Restaurant Uses, and approximately 7,451 square feet of meeting /banquet room space. The New Construction will also contain other amenities such as a spa, gym and rooftop swimming pool. The partial seventh floor will contain approximately 3,356 square feet of Floor Area of amenities to be used in conjunction with the rooftop pool. These amenities include food service, a fitness center and bathrooms. 5 (d) A new subterranean parking garage will be constructed beneath the New Construction with 290 -325 parking spaces, subject to modification in accordance with Section 2_4 herein. All of the parking spaces shall be operated for the uses to be located in the New Construction and Landmark Building or for Shared Parking in accordance with Section 2.7.2(8 herein. 2.3 No Obligation to Develop. 2.3.1 Except as specifically provided herein: (a) Nothing in this Agreement shall be construed to require Developer to proceed with the construction of the Project or any portion thereof. (b) The decision to proceed or to forbear or delay in proceeding with construction of the Project or any portion thereof shall be in Developer's sole discretion. (c) Failure by Developer to proceed with construction of the Project or any portion thereof shall not give rise to any liability, claim for damages or cause of action against Developer, except as may arise pursuant to a nuisance abatement proceeding under SMMC Chapter 8.96, or any successor legislation. 2.3.2 Failure by Developer to proceed with construction of the Project or any portion thereof shall not result in any loss or diminution of development rights, except upon expiration of Developer's vested rights pursuant to this Agreement, or the termination of this Agreement. 2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary, Developer shall be required to implement all mitigation measures and conditions required under this Agreement in accordance with Exhibit "D ". . 2.4 Vested Rights. 2.4.1 Approval of Project Plans. The City hereby approves the Project Plans. The City shall maintain a complete copy of the Project Plans, stamped "Approved" by the City, in the Office of the City Clerk, and Developer shall maintain a complete copy of the Project Plans, stamped "Approved" by the City, in its offices at the Project site. The Project Plans to be maintained by the City and Developer shall be a half -size set. Further detailed plans for the construction of the Buildings and improvements, including, without limitation, structural plans and working drawings shall be developed by 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 the following: (a) Reduction of any setback of the Project, as depicted on the Project Plans, if by such reduction the applicable setback would be less than is permitted in the applicable zoning district under the Zoning Ordinance in effect on the date such modification is applied for. (b) Any change in use not consistent with the permitted uses defined in Section 2.5 below. (c) Any decrease in the minimum number of parking spaces provided for in Section 2.10 (i.e., 290 spaces). Additionally, any decrease in the minimum number of parking spaces provided for in Section 2.10 shall be supported by a parking demand study prepared by the Developer and reasonably approved by the Planning Director. (d) An increase in the maximum number of parking spaces, as provided for in Section 2.10 (i.e., 325 spaces) by more than 10 spaces. (e) Any variation in the design, massing, and building configuration, including but not limited to FAR and building height, that renders such aspects out of substantial compliance with the Project Plans. (f) Any change that would materially reduce the Community 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, conditions, and mitigation measures 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 modification, except for Joint Design Review Body 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 9.2.1 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 Joint Design Review Body pursuant to Section 6.1 of this Agreement, the City shall.have no further discretion over the elements of the Project which have been delineated in the Project Plans (as the same may be modified from time to time in accordance with this Agreement). 2.5 Permitted Uses. The City approves the following permitted uses for the Project: 2.5.1 Uses Defined. (a) "Restaurant Uses" shall have the meaning given the term "Restaurant" as defined in Section 9.04.02.030.730 of Existing Regulations. Restaurant uses shall not include "Incidental Food, Service ", as defined in Section 9.04.02.040.420 of Existing Regulations, or "Fast food, take -out, or drive - through," as defined in Section 9.04.02.040.735 of Existing Regulations. The Parties acknowledge that the City is in the process of updating the Zoning Ordinance, and the Parties agree that, upon the City's adoption of the new zoning ordinance, the Developer may make a one -time election whether to have Restaurant Uses have the meaning as contained in Existing Regulations or as contained in the City's new zoning ordinance. (b) "Hotel" and "Hotel Use" shall mean a building, group of buildings or a portion of a building which is designed for or occupied as the temporary lodging place of individuals for generally less than thirty consecutive days including, but not limited to, an establishment held out to the public as an apartment hotel, hostel, inn, timeshare project, tourist court or other similar use. "Hotel" and "Hotel Use" include those activities and services customarily associated with a full- service hotel including, without limitation, meeting and banquet rooms, health club /gymnasium for hotel guests only, business center, retail uses, Restaurant Uses including restaurant/bar /food service, swimming pool/spa, rooftop gardens, and all other building area and open space in the Landmark Building above the ground floor and in the New Construction. The normal and customary use of the meeting and banquet space located on the Property shall be considered a Hotel Use and not a nightclub. 2.5.2 Prior to Development of the Project. Until the Developer exercises the building permit for the adaptive reuse and rehabilitation of the Landmark Building and construction of the New Construction to such an extent that the uses are no longer possible, the uses of the Property and the buildings located thereon shall be governed by the SMMC, subject to the following: (a) The ground floor space in the Landmark Building and in the building located at 718 Wilshire Boulevard may be used for any uses identified as either retail uses or Restaurant Uses as defined in this Agreement. (b) The existing Floor Area located in floors two through seven of the Landmark Building may continue to be used for general office purposes; and (c) The Seventh Street Lots currently in use as a surface parking lot may continue as a surface parking lot without further approvals. 2.5.3 Permitted Uses. Pursuant to this Agreement, Permitted Uses in the Project shall be as specified below: (a) In the Landmark Building at the ground floor, the following are Permitted Uses: Restaurant Uses, Incidental Food Service, retail uses, rental car agencies, photocopy shops, martial arts studios, and any other uses that are designated as permitted uses for ground floor space in the Landmark Building by the SMMC in effect at the time the use is established. Banks and similar financial institutions may be located on the ground floor facing the Public Use Area frontage provided that the frontage of such uses does not exceed twenty continuous linear feet. (b) In the New Construction at the ground floor, the following are Permitted Uses: Hotel Use, Restaurant Uses, Incidental Food Service, retail uses, rental car agencies, photocopy shops, martial arts studios, and any other uses that are designated as Permitted Uses for ground floor space in the New Construction by the SMMC in effect at the time the use is established. Banks and similar financial institutions may be located on the ground floor facing the Public Use Area frontage provided that the frontage of such uses does not exceed twenty continuous linear feet. (c) In the Landmark Building and New Construction above the ground floor, the following is a Permitted Use: Hotel Use. (d) In the Subterranean Space, the following are Permitted Uses: Parking, including Shared Parking in accordance with Section 2.7.2(fl below, automobile vehicle storage for on -site rental car agencies as shown on the Project Plans (or, if there is no rental car agency, they may be used for Parking), Hotel Uses including laundry facilities for the hotel, Wine Storage and Tasting Room, and any other uses that are designated as Permitted Uses in the Zoning Ordinance in effect at the time the use is established. 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. 2.5.4 Conditionally Permitted Uses. "Conditionally Permitted Uses" include (a) all uses that are identified as Conditionally Permitted Uses in the SMMC in effect at the time the use is sought to be established, with the exception of any uses that are defined as Permitted Uses herein, and (b) any uses requiring a Conditional Use Permit in Section 2.6.3. A Conditional Use Permit shall also be required for: (a) banks and similar financial institutions located on the ground floor project frontage facing Wilshire Boulevard or 7`h Street or (b) banks and similar financial institutions located on the ground floor project frontage facing the Public Use Area with a frontage exceeding twenty continuous linear feet. 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 SMMC and the issuance of a business license. 0 2.5.5 Other Uses Subject to Discretionary City Plannin¢ Approvals. In addition to Permitted Uses and Conditionally Permitted Uses, Developer may seek City discretionary planning approval for uses that are allowed by any other City discretionary process as provided in the SMMC in effect when the use is sought to be established. Such use may not commence until the requisite City discretionary planning approval and a business license are obtained. 2.6 Alcoholic Beveraee Permits. 2.6.1 Hotel. Developer or a Hotel operator may sell or furnish alcoholic beverages within the hotel's mini -bars, hotel rooms, common areas, meeting and banquet spaces, the Second Floor Bar, the Wine Storage /Tasting Room, and the Rooftop dining areas as shown on the Project Plans without obtaining a conditional use permit pursuant to SMMC Section 9.04.10.18 if Developer or hotel /business operator agrees in writing to comply with the terms and conditions in Exhibit "F ". Notwithstanding the foregoing, Developer or a hotel /business operator may apply for a conditional use permit pursuant to SMMC Section 9.04.10.18 in order to sell or furnish alcoholic beverages for consumption on terms other those in Exhibit "F" for the hotel common areas, meeting and banquet space, Second Floor Bar, Rooftop dining areas or Wine Storage and Tasting Room. 2.6.2 Restaurants. Developer or a hotel /restaurant operator may dispense for sale or other consideration, alcoholic beverages, including beer, wine, malt beverages, and distilled spirits for on -site consumption in Restaurant "A" (as shown on the Project Plans), Restaurant "El "(as shown on the Project Plans) or any other area on the Project Plans designated for Restaurant or Retail - -as long as there are not more than 9,730 square feet of Restaurant Uses in the Project -- if Developer agrees in writing to comply with the terms and conditions in either Exhibit "G" for Restaurant "A ", Exhibit "H" for Restaurant "El or Exhibit "I" for any Restaurant or Retail space, including Restaurant "A" and Restaurant "El ". Developer shall cause all hotel /restaurant operator leases or transfer of ownership to contain a clause that requires the tenant to comply with the terms and conditions in either of the applicable Exhibits G, H, or I. Notwithstanding the foregoing, Developer or a Hotel /Restaurant operator may apply for a conditional use permit pursuant to SMMC Section 9.04.10.18 in order to sell or furnish alcoholic beverages for consumption on -site on terms other than those in Exhibits "G ", "H" or "I" for any area on the Project Plans designated for Restaurant or Retail. 2.6.3 Conditional Use Permit. A conditional use permit pursuant to SMMC Section 9.04.10.18 shall be required for any proposed use in the hotel that (a) includes the service or sale of alcoholic beverages and (b) does not comply with the conditions set forth in Sections 2.6.1 or 2.6.2. Notwithstanding the foregoing, no conditional use permit shall be required for catered events for which the necessary permits then required for such events have been obtained. 2.7 Proiect and Community Benefits. This Agreement provides assurances that the project and community benefits identified below in this Section 2.7 will be achieved and developed in accordance with the terms of this Agreement. 10 2.7.1 Proiect Benefits. Set forth in this Section 2.7.1 are the project benefits that will be provided to the City, including without limitation: (a) increasing tax revenues, including transient occupancy tax, sales tax, property tax, business license tax, parking tax, and utility user's tax; (b) providing substantial new employment opportunities in both the Hotel and retail space; (c) a desirable mix of uses, including retail, restaurants /cafes and 24 -hour hotel, within a new building to be constructed in the Downtown in close proximity to transit; (d) providing the City with fee revenue for child care facilities; and (e) trip reduction measures as required by SMMC Chapter 9.16. 2.7.2 LUCE Community Benefits. Set forth below in this Section 2.7.2 are the additional community benefits that will be provided by the Project. (a) Historic. Preservation. (i) The Project includes the rehabilitation and adaptive reuse of the existing Landmark Building at 710 Wilshire Boulevard. This Spanish Colonial Revival building was designated as a City landmark by the Santa Monica Landmarks Commission on August 8, 2005. (LC -05 -LM -003.) The 34,178 square foot Landmark Building, known as the Santa Monica Professional Building, was constructed in 1928. The Landmark Building was built for, and currently remains in use as, commercial offices above retail at the ground floor. Evolutions in style, changes in tenants, and various retrofits have altered significant elements of the Landmark Building's exterior and interior. Exterior alterations include infill of the original porte- cochere, alterations of storefront windows and doors, added inoperable awnings, missing light fixtures, missing art stone features, removal of a rooftop garden above the first floor podium, replacement of terra cotta roofing tiles with asphalt composition shingles, removal of masonry grills, termination of flood up- lighting, changes to the first floor lobby including removal of decorative molding, ceilings, elevator doors, lighting, display case, and mail chute, and changes to upper floor corridors including wainscoting, ceilings, lighting, and doors. Pursuant to Article 6 of this Agreement, a Certificate of Appropriateness will be obtained from the Joint Design Review Body, or the City Council on appeal, to review and approve these alterations and to the extent possible, restore the Landmark Building's publicly accessible spaces to their original appearance based on physical evidence and other documentation. Original architectural drawings of both the interior and exterior provide extensive information on the Landmark Building's original appearance, and will be utilized along with historic photographs of the exterior to guide rehabilitation. Rehabilitation will conform to Secretary oflnterior Standards for Treatment of Historic Properties (Secretary's Standards). Rehabilitation and adaptive reuse of the Landmark Building in accordance with the Certificate of Appropriateness will: (1) make the building safer in light of today's codes, (2) rehabilitate and restore its character - defining features, and (3) ensure that the Landmark Building endures for future generations. At the time of rehabilitation, various structural aspects of the existing Landmark Building will be upgraded. In addition, to improve the existing life safety protections, existing fire and life safety conditions will be updated per current codes while achieving a balanced application of the Secretary's Standards and California Historical Building 11 Code. Furthermore, handicap accessibility will be upgraded as part of rehabilitation of the Landmark Building. (ii) Performance Bond for Landmark Building. (A) Timing. Prior to issuance of a building permit, Developer shall provide evidence satisfactory to the City Attorney of a performance bond issued by a corporate surety authorized to do business in the State of California ( "Performance Bond "). At Developer's option and if commercially available, the Performance Bond may be structured in a such manner so as to take effect upon commencement of the Project's construction. (B) Purpose. The purpose of the Performance Bond shall be to ensure that if after rehabilitation work on the Landmark Building has commenced, the building permit for the Project expires or the Developer notifies the City in writing that the Project has been abandoned, then, to safeguard the Landmark Building, the City will have the ability to pay for its cost of completing the Landmark Building's exterior rehabilitation as authorized by the Certificate of Appropriateness, subject to the scope of work specified in 2.7.2(1)(ii)(C) and the process specified in 2.7.2(l)(ii)(H). (C) Scope. The exterior rehabilitation work covered by the Performance Bond shall include, without limitation, the roofs (i.e., the second floor podium, the sixth floor rooftop and the roofs of the unoccupied rooms on the partial seventh floor), the windows (including the ground floor storefront doors and windows, as well as the upper floor windows), the surface finishes of the exterior (including the cast -in -place board- formed concrete and the painted cement stucco skin), and, to the extent they are being retained, rehabilitated or replaced, the decorative cast -stone trim details and elements on the exterior of the Landmark Building. The work may also include other building elements which are required as part of the Certificate of Appropriateness. The exterior rehabilitation work shall not include additional elements that may be included in the Certificate of the Appropriateness such as the landscaping, irrigation, lighting, mechanical, electrical or plumbing systems; or interior rehabilitation work. Notwithstanding the foregoing,. the exterior rehabilitation work covered by the Performance Bond shall also include any interior construction activity that directly impacts the exterior appearance or overall structural integrity of the Landmark Building, but only to the extent such work directly and materially impacts the exterior appearance or overall structural integrity of the Landmark Building. (D) Amount. The initial amount of the Performance Bond shall be mutually agreed upon by the Developer and the Planning Director, and may be reduced over time as the rehabilitation work to the Landmark Building progresses. The initial amount of the Performance Bond shall be based on the anticipated cost of performing the rehabilitation work to the exterior of the Landmark Building as approved by the Certificate of Appropriateness. To aid in this valuation, Developer shall provide the Planning Director with an estimate from a general contractor of the approximate cost of performing such work. If, when the Performance Bond comes up for periodic renewal, the rehabilitation work to the exterior of the Landmark Building has been accomplished in part, then at that time the amount of the 12 Performance Bond can be reduced accordingly by the mutual agreement of Developer and the Planning Director. (E) Contents. The Performance Bond shall provide that if the Developer allows the building permit to expire, fails to satisfactorily obtain a Certificate of Occupancy within the timeframe allowed under SMMC (including any extensions that may be granted) or otherwise abandons the Project, and consequently the City acts to ensure that the Landmark Building's exterior rehabilitation work is completed, as authorized by the Certificate of Appropriateness, after providing the requisite notice, there shall be recoverable by the City, any and all damages, loss, or costs incurred by the City. (F) Term. The Performance Bond shall only be cancelled -- or allowed to expire without renewal -- upon the mutual agreement of Developer and the Planning Director that the Landmark Building's exterior rehabilitation work as approved by the Certificate of Appropriateness has been completed or substantially completed. In all circumstances, the obligation to provide the Performance Bond shall automatically terminate once a Certificate of Occupancy has been issued for either the Landmark Building or the Project as a whole. (G) Reservation. The rights reserved to the City with respect to the Performance Bond are in addition to all other rights of the City, whether reserved by this Agreement or authorized by law, and no action, proceeding, or exercise of a right with respect to such Performance Bond shall affect any other rights which may be held by the City. (I3) Process. In the event that (i) the building permit lapses after rehabilitation work on the Landmark Building has been commenced, or (ii) the . Developer notifies the City in writing that the Project has been abandoned after the rehabilitation work on the Landmark Building has been commenced, then the City shall give Developer thirty (30) days written notice thereof and an additional sixty (60) days to initiate active steps to cure the abandonment or building permit expiration. If, after providing this notice and opportunity to cure, the concerns are not then being adequately addressed by Developer, the City shall become empowered thereafter to enter the Properly to complete any exterior rehabilitation work that had been initiated by Developer, to the extent (and no more than) necessary to ensure that as to such work that has been initiated the Landmark Building's exterior rehabilitation work is completed pursuant to the Scope above. The City may perform any such exterior rehabilitation itself or may employ some other qualified and insured entity or person to complete the work to safeguard the Landmark Building, and for such purposes, shall be authorized to use Developer's equipment if such equipment remains on site, provided that the entire expense of the exterior rehabilitation work to safeguard the Landmark Building, whether done by City itself or by the employment of another person, shall be charged to Developer and provided further, that the doing of such work by City itself or by the employment of other persons shall in no way relieve Developer from any obligations under this Agreement, nor limit the rights and remedies of City hereunder.in any manner whatsoever. (b) Transportation Demand Management Plan. Developer shall adopt and implement the following Transportation Demand Management Plan ( "TDM Plan'): 13 (i) AVR Target. For employees of the Project, Developer shall achieve an average vehicle ridership ( "AVR ") of 1.75 by the third year after the City's issuance of a certificate of occupancy for the Project and the 1.75 AVR shall continue to be achieved and maintained thereafter. SMMC Chapter 9.16 shall govern how the AVR is calculated. Failure to achieve the AVR standard as provided in this Section will not constitute a Default within the meaning of the Agreement so long as Developer is working cooperatively with the City and taking all feasible steps to achieve compliance. The term "feasible" shall have the meaning given that term in Section 21061.1 of the California Public Resources Code, or any successor legislation thereto. Developer will determine its AVR through employee surveys for one consecutive week each calendar year beginning the first year the commercial component is at least 50% occupied. For purposes of determining AVR, the survey must be conducted and AVR calculated in accordance with SMMC 9.16.070(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 ... The procedure for calculating AVR at a worksite shall be as follows: (A) The AVR calculation shall be based on data obtained from an employee survey as defined in [SMMC Section 9.16.070(d)(2)]. (B) AVR shall be calculated by dividing the number of employees who report to or leave the worksite by the number of vehicles arriving at or leaving the worksite during the peak periods. All employees who report to or leave the worksite . that are not accounted for by the employee survey shall be calculated as one employee per vehicle arriving at or leaving the worksite. Employees walking, bicycling, telecommuting, using public transit, or on their day off under a recognized compressed work week schedule shall be counted as employees arriving at or leaving 14 the worksite without vehicles. Motorcycles shall be counted as vehicles. (C) A child or student may be calculated in the AVR as an additional passenger in the carpool/vanpool if the child or student travels in the car /van to a worksite or school /childcare facility for the majority (at least fifty -one percent) of the total commute. (D) If two or more employees from different employers commute in the same vehicle, each employer must account for a proportional share of the vehicle consistent with the number of employees that employer has in the vehicle. (E) Any employee dropped off at a worksite shall count as arriving in a carpool only if the driver of the carpool is continuing on to his /her worksite. (F) Any employee telecommuting at home, off -site, or at a telecommuting center for a full work day, eliminating the trip to work or reducing the total travel distance by at least fifty -one percent shall be calculated as if the employee arrived at the worksite in no vehicle. Furthermore, the definition of AVR contained in SMMC Section 9.16.030, as written on the Effective Date, shall govern how AVR is calculated. That definition reads as follows: "The total number of employees who report to or leave the worksite or another job - related activity during the peak periods divided by the number of vehicles driven by these employees over that five -day period. The AVR calculation requires that the five - day period must represent the five days during which'the majority of employees are scheduled to arrive at the worksite. The hours and days chosen must be consecutive. The averaging period cannot contain a holiday and shall represent a normal situation so that a projection of the average vehicle ridership during the year is obtained." (ii) TDM Plan Program Elements. The specific program elements of the TDM program for the Project are as follows: 2.7.2.1 Transportation Demand Management Association. Developer 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 ridesharing. If the City adopts a requirement that a TMA be formed for this geographic area, Developer shall attend 15 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 2.7.2(b) through the TMA. 2.7.2.2 Employee Transportation Coordinator. An Employee Transportation Coordinator (ETC) shall be designated for this Project by Developer. The ETC shall manage all aspects of this TDM program and participate in the local TMA that may be established by the City, City- sponsored workshops and information roundtables. The ETC shall be responsible for actively encouraging and making available information materials on options for alternative transportation modes and opportunities. The ETC shall contact each employee at the point of hire and at least once per year thereafter with an offer of personalized commute assistance, including, but not limited to: (a) one month's free transit pass (at commencement of employment only) and an on- going 50% or greater subsidy described in subsection 2.7.2.15 below, (b) guidance on routes to use, (c) information about carpool and vanpool formation, (d) a month's free vanpool fare (one time only), and (e) a discussion of other benefits available. The ETC shall also promote non- drive -alone options to employees by providing onsite information, including a newsletter, at least two events per year (e.g., Rideshare Week and Bike Week) and marketing activities such as contests and raffles. The ETC shall coordinate with nearby employers to facilitate more effective carpool /vanpool matching, events and promotions. In addition, transit fare media will be made available for purchase through the ETC to employees and visitors during typical business hours. Employee Transportation Coordinator services may be provided through the TMA contemplated in Section 2 7 2(b)(ii)(2.7.2.1) above. 2.7,23 Transportation Information Center. Developer shall provide on -site information for hotel employees, hotel guests, and employees of the Project's other commercial tenants about local public transit services (including bus lines, light rail lines, bus fare programs, ride share programs and shuttles) and bicycle facilities (including routes, rental and sales locations, on -site bicycle racks and showers. Developer shall provide (e.g., at check -in) each hotel guest with a map, schedule and fare information for utilizing the transit system in Santa Monica and the surrounding area. Developer shall also provide hotel guests with information about rideshare, shopping locally, and bike and walking routes through the hotel's website, reservation confirmations and materials provided upon registration (i.e., wherever parking or location information is provided). Developer shall also provide walking and biking maps for employees and visitors, which shall include but not be limited to information about convenient public transit stops, local services, and restaurants within walking distance of the Project. Developer shall provide information to employees and commercial tenants and employees of the hotel operator regarding local rental housing agencies. Such transportation information shall be provided on -site, regardless of whether also provided on a website. 2.7.2.4 Secure Bicycle Parking for Employees /Hotel Guests. Developer shall provide secure long -term bicycle storage for employees and for hotel guests in a secure convenient location approved by the Planning Director. This shall have a capacity for a minimum of 64 bicycles. For the purpose of this requirement, secure bicycle parking shall mean bicycle lockers, an attended cage, or a secure parking area. 16 2.7.2.5 Visitor Bicycle Parking. Developer shall provide short-tern bicycle parking for 16 bikes for guests of the Project. This guest bike parking shall be located on the ground floor of the Project and may be relocated from time to time as long as the parking remains on the ground floor. 2.7.2.6 Hotel Guest Bicycle Check. Developer shall provide "bike check" service to hotel guests. Information on this service shall be included on the hotel's website, reservation confirmations, and hotel information provided in guest rooms. 2.7.2.7 Bicycles for Shared Use by Hotel Guest. Developer shall make available a minimum of 20 on -site bicycles for rent by Hotel guests at a nominal charge or free. The bicycles shall be maintained in good working order and helmets shall be provided to guests if required by law. The Planning Director may require. that more bicycles shall be made available as demand warrants. The Developer, in consultation and mutual agreement with the Planning Director, may allow these additional bicycles to be made available to Hotel guests through the provision of vouchers for an off -site bicycle rental store /service located in the Downtown area or for a bicycle sharing program if one is instituted by the City or another operator. Information on the availability of shared bicycles shall be included on the hotel's website, reservation confirmations, and hotel information provided in guest rooms. 2.7.2.8 Preferred Drop- off /Pick -up Loading Zone. As depicted on the Project Plans, the Project includes an on -site drop- off /pick -up loading zone to discourage on- street double parking. Parking time limits in this designated zone shall be enforced by Developer to facilitate adequate availability of the loading area. 2.7.2.9 Carpool Program Developer shall provide preferential parking within the parking garage for project employees who commute to work in employer- registered carpools. An employee who drives to work with at least one other employee in the Project or adjacent facilities may register as a carpool entitled to preferential parking within the meaning of this provision. Developer shall require in all Hotel and Restaurant leases (for Restaurants greater than 1,500 gross square feet) or operating agreements that employees be provided with financial incentives for carpooling /vanpooling. 2.7.2.10 Rideshare Matching Service. Developer shall provide a rideshare matching service to all employees at least once per year to assist employees in finding carpool /vanpool opportunities (i.e., through a service such as RideMatch (www.ridematch.info)) and /or require tenants to participate in Metro's CommuteSmart.info website. Rideshare matching services may be provided through the TMA contemplated in Section 2.7.2(b)(ii)(2.7.2.1) above. 2.7.2.11 Parking Pricing. Hourly parking pricing shall be market -based and adjusted periodically in an effort to ensure parking availability for Hotel guests, commercial tenants and their employees and visitors during peak parking hours. Whenever Developer makes any unused on -site commercial parking available for daily, weekly, or monthly lease to third parties in the surrounding area in need of parking in accordance with Section 2.7.2(f) Developer shall charge market rates. 17 2.7.2.12 Carshare Service. Developer shall, in the subterranean parking garage, make a car sharing service available within the project with a minimum of two cars, if such a service is available from a third party provider on commercially reasonable terms including the rental rate to be paid to Developer for use of the parking space(s). Required parking spaces may be used for carshare vehicles. Developer shall propose a signage system to notify people of the location and availability of the carshare vehicles; the City Transportation Manager shall consider such request and may authorize the posting of signs within the public right -of -way to guide pedestrian and vehicular traffic to the carshare parking location. Location of carshare vehicles shall be determined by the Planning Director in consultation with the Developer, at such time as the carshare service provider has been selected. 2.7.2.13 Rental Car Availability. If a rental car agency is not operating within the project, Developer shall provide information to Hotel guests on rental car agency locations within the city and shall make arrangements for rental cars to be delivered to and picked up from the Hotel or for hotel guests to be picked up by the rental car agency. Information on rental car availability shall be included on the hotel's website, reservation confirmations, and hotel information provided in guest rooms. 2.7.2.14 Unbundled Parking. Developer shall lease its parking to commercial tenants separately from the commercial space. If commercial tenants desire to lease parking, parking shall either be leased pursuant to a separate agreement or shown as a separate line item in the lease. Such parking shall typically be leased on a'mouth -to -month basis at market rates established by Developer from time -to -time. Developer may, subject to the Planning Director's approval, reconfigure the parking spaces and operations from time -to -time in order to facilitate unbundling of parking. Developer shall require in all tenant leases it executes as landlord that tenants not pay for or reimburse their employees for parking. 2.7.2.15 Public Transit Subsidy. Developer shall require in the lease it executes as landlord (or management, operating or similar agreement) that the Hotel and Restaurant operators (for Restaurants greater than 1,500 gross square feet) must (a) provide all newly hired employees that will work within the Project a free public transit pass valid every day for at least the first three months of their employment and (b) offer all employees a Metro EZ pass (or equivalent multi- agency monthly transit pass) at a 50 % or greater subsidy on an ongoing basis. Developer shall require in the lease it executes as landlord (or management, operating or similar agreement) that the Hotel and Restaurant operators must provide for their employees that work within the Project a financial incentive to use public transit (e.g., Santa Monica Big Blue Bus, or Metro Bus Service or future Metro Light Rail Service) in lieu of driving a vehicle to the site. Such a financial incentive shall include, among other things, that the Hotel and Restaurant operators shall not reimburse their employees for parking, unless precluded by a bona fide collective bargaining agreement. 2.7.2.16 On -Site Shower 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. 18 2.7.2.17 Guaranteed Return Trip. Developer shall require in all leases it executes as landlord for space within the Project that tenants provide employees who vanpool or carpool with a return trip to the point of commute origin at no additional cost to the employee, when a Personal Emergency Situation requires it. The employee guaranteed return trip may be provided through the TMA contemplated in Section 2.7.2(ii)(2.7.2.1) above. The ETC may register with Metro's Guaranteed Ride Home program for such commuters. (iii) Changes to TDM Program. Subject to approval by the City's Planning Director, the Developer may modify this TDM program provided the TDM program, 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 program 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. (iv) Tenant Leases. Developer shall require in all tenant leases that tenants cooperate with Developer in meeting the objectives and complying with the terms and conditions. of the TDM Program in effect or any future program instituted by any governmental authority and applicable to the property, including the annual survey described in Section 2.7.2(b)(i) above and the requirement to participate in the TMA in Section 2.7.2(b)(ii)(2.7.2.1) above. (v) Annual Report. As part of the annual compliance review described in Article 10 below, Developer shall report to the City on the status of the TDM program implementation, usage and results. (vi) New TDM Ordinance. If the City adopts a new ordinance of general application that updates or replaces Chapter 9.16 of the SMMC and that applies to the geographic area in which the Property is located ( "New TDM Ordinance "), then, subject to the Planning Director's approval in his or her sole and absolute discretion, Developer may elect to comply with the New TDM Ordinance in lieu of complying with the TDM Plan outlined in this Agreement. (c) Sustainable Design Features. Developer shall retain the services of an accredited professional to consult with Developer regarding inclusion of sustainable design features for the Project. Developer shall design the Project so that, at a minimum, the Project shall have the number of points that would be commensurate with achieving LEEDS credits equivalent to a "Silver" certification under the LEEDS Rating System (the "Sustainable Design Status "). If Developer has received design approval pursuant to Section 6.1 within 4 years after the Effective Date, Developer may utilize LEEDS Rating System version 3.0 dated 2009 (LEEDS NC v3 -2009) unless Developer chooses, in its sole and absolute discretion, to use a subsequent version of the LEEDS Rating System. If Developer has not received design approval from the Landmarks Commission pursuant to Section 6.1 within 4 years of the Effective Date, then Developer shall utilize the version of the LEEDS Rating System then in effect unless the City agrees that Developer may utilize an earlier.version of the LEEDS Rating System. For purposes of clarity, Developer shall design the Project in a manner that achieves the 19 Sustainable Design Status; provided, however, that Developer shall not be required to pay to the Green Building Certification Institute the fees required to obtain a LEEDS certificate. (1) Developer shall confirm to the City that the design for the Project has achieved the Sustainable Design Status in accordance with the following requirements of this Section 2.7.2(c). (2) Prior to the submission of plans for the Joint Design Review Body's review consistent with Article 6 of this Agreement, Developer shall submit a preliminary checklist of anticipated LEEDS credits (that shall be prepared by the LEEDS accredited professional) for review by the City of Santa Monica Green Building Program Advisor ( "Advisor "), along with a narrative to demonstrate that the Project is likely to achieve the Sustainable Design Status. (3) As part of Developer's set of plans and documents submitted to the City with Developer's plan check application for the Project's building permit, Developer shall also submit the LEEDS credits identified in clause (2) above (prepared by the LEEDS accredited professional) for review by the Advisor to demonstrate that the Project is likely to achieve the Sustainable Design Status. (4) Prior to issuance of a final Certificate of Occupancy for the Project, the City's Green Building Program Advisor shall verify and approve (which approval shall not be unreasonably withheld, conditioned or delayed) that the LEED® credits identified in clause (2) above (prepared by the LEEDS accredited professional) demonstrate that the Project is likely to achieve the Sustainable Design Status. Developer shall meet with the Advisor at least 30 days prior to submitting the final LEEDS credits for the Advisor's approval, and during such meeting Developer shall review the LEEDS progress with the Advisor. (5) Notwithstanding the foregoing, if the Advisor has not yet approved the LEEDS credits that demonstrate that the constructed Project has achieved the Sustainable Design Status, the City shall nonetheless issue a temporary Certificate of Occupancy for the Project (assuming that the Project is otherwise entitled to receive a temporary Certificate of Occupancy). The temporary Certificate of Occupancy shall be converted to a final Certificate of Occupancy once the Advisor determines that the LEEDS credits for the Project demonstrate that the constructed Project has achieved the Sustainable Design Status. (d) Photovoltaic Panels. Photovoltaic panels shall be installed on the roof deck in accordance with the Project Plans. (e) EV Conduit. Developer shall in the subterranean parking garage, including on the P.1 level, provide either: (a) a minimum number of 208/240 V 40 amp, grounded AC outlets equal to 30 parking spaces or (b) panel capacity and conduit for future installation of electrical outlets designed to allow the simultaneous charging of a minimum number of 208/240 V 40amp, grounded AC outlets equal to at least 30 parking spaces._ Until the Planning Director makes a determination, based on demonstrated demand by drivers of such vehicles, that some or all of the 30 parking spaces be restricted for electric or other alternative 20 fueled vehicle use, the spaces may be utilized without regard to vehicle type at the Developer's sole and absolute discretion. (1) Shared Parking. In furtherance of the LUCE's shared parking policies and consistent with providing sufficient on -site parking for the Project's users, Developer may make any unused on -site parking available for monthly lease at market rates to third parties in the surrounding area in need of parking, including area residents, businesses, and employees, ( "Shared Parking ") if (i) Developer obtains a written report by a traffic and parking engineering firm that demonstrates that the proposed additional parking spaces to be leased to third parties are not needed to meet the Project's peak parking demand, (ii) Developer submits such report to the City for review and approval, and (iii) the Planning Director approves the additional parking spaces for Shared Parking. Alternatively, Developer may make parking spaces available for Shared Parking in accordance with any SMMC procedure authorizing shared parking then in effect. In order to facilitate annual compliance monitoring of shared parking and trip reduction targets, Developer shall install ticketing equipment for on -site parking that is able to discern between on -site and off -site users. (g) Local Hiring. A local hiring program shall be provided in accordance with Exhibits 11J -1" and 11J -2 ". (h) Internship Program. On an ongoing basis, the Developer shall provide at least two paid (unless taken for school credit) internships per school session to students who are Santa Monica residents and attend a high school in Santa Monica or Santa Monica College. Developer will inform the schools that internships shall be targeted towards students who are Santa Monica residents and whose household income is no greater than 80% of the Median Income, as defined in Exhibit "J -2" of the this Agreement. Subject to the requirements specified in this subsection (h), Developer retains full discretion to select the students for the internships. (i) Community Meeting Space. Subject to availability, Developer shall make banquet or meeting rooms available to non - profits or other community organizations on a reduced cost basis at least twelve (12) times per year for up to five hours per meeting. The reduced cost shall be based on fees that are required for similar City -owned facilities. Notwithstanding the foregoing, standard set up fees and standard food and beverage rates will apply. Prior to the Hotel's Certificate of Occupancy, written rental facility guidelines as to community availability of the meeting/banquet rooms shall be prepared by the Hotel operator and submitted to the Planning Director for review and approval. Such rental facility guidelines regarding community availability may be amended from time to time thereafter, subject to the Planning Director's review and approval. The following hourly fees shall be stated in the written rental facility guidelines and adjusted annually for CPI: 21 SM Based Non -SM SM Based Non -SM SM Based Non -SM Non - Profit Non -Profit Community Community Business Business Meeting Room A $17.75 $35.53 $29.60 $62.17 $71.04 $95.88 Meeting Room B $14.32 $28.60 $25.04 $49.79 $57.21 $77.26 21 0) Transportation Infrastructure Fee. On or before issuance of a building permit for the Project, Developer shall make a $244,000 contribution to the City to be used within five years thereafter for the purposes of helping fund capital improvements to transportation infrastructure that may include but not be limited to pedestrian network completion, bicycle facilities as.guided by the Bicycle Action Plan, transit improvements, and automobile network improvements. (k) Bicycle Sharing Area. Developer shall provide a reasonable amount of space in the Public Use Area, not to exceed six (6) feet in depth and twelve (12) feet in width, at a visible and accessible location on site which is compatible with the operation of the Project, for a bicycle sharing program station in conjunction with any bicycle sharing program instituted by the City or another operator. The bicycle sharing area may replace no more than 5 visitor bicycle parking spaces, as required by Section 2.7.2.5. Developer shall have the right to relocate the area made available for such bicycle sharing station from time to time so long as the new location continues to be of a similar size and reasonably located given the requirements of the bicycle sharing program. Developer shall have no obligation to fund or operate any such program or to keep any space available if no bicycle sharing system is implemented by the City or other operator. (1) Project Design. As a result of this Agreement, there are enhanced elements of the Project design, including enhanced walkway and courtyard areas as shown on the Project Plans and other pedestrian- oriented design elements of the Project. The public use of that certain area designated on the Project Plans as "Public Use Area" shall be: (i) consistent with the terms and conditions of this Agreement; (ii) solely for pedestrian access to and passive use of the Public Use Area by the public; and (iii) compatible with Developer's development, use and enjoyment of the Project. No use other than pedestrian access to and passive use of the Public Use Area by the public shall be permitted on the Public Use Area. Between the hours of 10:00 p.m. and 8:00 a.m., Developer may limit public access to the Public Use Area. (m) Non - Potable Water System. Prior to the issuance of the Project's building permit, the Developer shall provide proof to the Planning Director of submission of a written request for a determination from the City's Water Resources Department as to: (i) the status of the approval and construction schedule for non - potable water delivery to the Property for non - potable use; (ii) the availability of a dedicated or identifiable source for financing the City's construction of the necessary infrastructure for accomplishing non - potable water delivery to the Property; (iii) sufficient capacity of non - potable water to meet anticipated demand; (iv) in the event that the City does not plan to deliver non - potable water to the Property from its own City water supply, an agreement between the City and a third party non - potable water wholesaler to sell its non - potable water to City; and (v) an approved utility rate schedule for the usage of non - potable water. 22 SM Based Non -SM SM Based Non -SM SM Based Non -SM Non - Profit Non - Profit Community community Business Business Meeting $14.32 $28.60 $25.04 $49.79 $57.21 $77.26 Room C Meeting $14.32 $28.60 $25.04 $49.79 $57.21 $77.26 Room D 0) Transportation Infrastructure Fee. On or before issuance of a building permit for the Project, Developer shall make a $244,000 contribution to the City to be used within five years thereafter for the purposes of helping fund capital improvements to transportation infrastructure that may include but not be limited to pedestrian network completion, bicycle facilities as.guided by the Bicycle Action Plan, transit improvements, and automobile network improvements. (k) Bicycle Sharing Area. Developer shall provide a reasonable amount of space in the Public Use Area, not to exceed six (6) feet in depth and twelve (12) feet in width, at a visible and accessible location on site which is compatible with the operation of the Project, for a bicycle sharing program station in conjunction with any bicycle sharing program instituted by the City or another operator. The bicycle sharing area may replace no more than 5 visitor bicycle parking spaces, as required by Section 2.7.2.5. Developer shall have the right to relocate the area made available for such bicycle sharing station from time to time so long as the new location continues to be of a similar size and reasonably located given the requirements of the bicycle sharing program. Developer shall have no obligation to fund or operate any such program or to keep any space available if no bicycle sharing system is implemented by the City or other operator. (1) Project Design. As a result of this Agreement, there are enhanced elements of the Project design, including enhanced walkway and courtyard areas as shown on the Project Plans and other pedestrian- oriented design elements of the Project. The public use of that certain area designated on the Project Plans as "Public Use Area" shall be: (i) consistent with the terms and conditions of this Agreement; (ii) solely for pedestrian access to and passive use of the Public Use Area by the public; and (iii) compatible with Developer's development, use and enjoyment of the Project. No use other than pedestrian access to and passive use of the Public Use Area by the public shall be permitted on the Public Use Area. Between the hours of 10:00 p.m. and 8:00 a.m., Developer may limit public access to the Public Use Area. (m) Non - Potable Water System. Prior to the issuance of the Project's building permit, the Developer shall provide proof to the Planning Director of submission of a written request for a determination from the City's Water Resources Department as to: (i) the status of the approval and construction schedule for non - potable water delivery to the Property for non - potable use; (ii) the availability of a dedicated or identifiable source for financing the City's construction of the necessary infrastructure for accomplishing non - potable water delivery to the Property; (iii) sufficient capacity of non - potable water to meet anticipated demand; (iv) in the event that the City does not plan to deliver non - potable water to the Property from its own City water supply, an agreement between the City and a third party non - potable water wholesaler to sell its non - potable water to City; and (v) an approved utility rate schedule for the usage of non - potable water. 22 If prior to the City's issuance of the Project's building permit, City has confirmed in writing: (i) a construction schedule for non - potable water delivery to the Property within 18 months after issuance of the Project's building permit, (ii) the availability of a dedicated or identifiable source or mechanism for financing the construction of the non - potable water delivery to the Property, (iii) sufficient capacity of non - potable water to meet anticipated demand, whether through the City's own supply or from a third party; and (iv) an approved utility rate schedule for non- potable water, then the Project's plumbing system shall include non - potable water plumbing lines (which may include dual plumbed construction, dual meters and backflow protection assemblies) to the satisfaction of the City Engineer and County Health Department. If feasible, the dual plumbing shall be designed and constructed to accommodate all Project irrigation and cooling tower demands, if cooling towers are used in the project. No other purple pipe installation or usage shall be mandated by this Agreement. In the event the City fails to respond within 90 days after Applicant's written request for determination with a final written response regarding its approval and construction schedule and source of financing and rate schedule, then the Project's construction will not be required to include a non - potable water delivery system. 2.8 Living Wage. a) Purpose. The purpose of this Section 2.8 is to ensure that Hotel workers receive fair and reasonable compensation comparable to similar hotels in Santa Monica and nearby communities without putting the Hotel at a competitive disadvantage in its hourly labor rates in comparison to such other hotels. b) Hotel Workers Covered. To the extent they are working at the Property, the following workers, or similarly described job classifications, performing Hotel Use services (exclusive of workers for any on -site vehicle rental agency), whether as employees of the Hotel or as employees of a contractor providing Hotel Use services within the Hotel, shall be covered by this Section 2.8: 1. File Clerk 2. Receptionist 3. Storeroom Clerk 4. Room Service Cashier 5. Restaurant Cashier 6. Pantry Staff 7. Prep Cook 8. Kitchen Apprentice 9. Buffet Runner 10. Kitchen Utility Person 11. Restaurant Night Cleaner 12. Pot Washer 13. Ware Washer 14. Room Service Order Taker 15. Bus Person 16. Bar Back 23 17. Banquet Housemen 18. Mini Bar Attendant 19. Lifeguard 20. Hotel Common Area Cleaner 21. Housekeeper 22. Room Attendant 23. Turndown Attendant 24. Housekeeping Clerk 25. Pool Attendant 26. Laundry Attendant 27. Laundry Washer 28. Laundry Presser 29. Uniform Room Attendant 30. Laundry Sorter 31. Security Officer 32. Parking Lot Attendant 33. Front Desk Clerk/Guest Service Agent 34. Telephone Operator 35. Health Club Attendant 36. Cleaning /Janitorial Staff 37. Child Activities Leader 38. Groundskeeper /Gardener 39. Driver 40. Door Person 41. Bellman Supervisor 42. Page 43. Parking Garage Cashier C) Living Wage Amount. Workers covered by this Section 2.8 shall be paid at least the minimum hourly wage rate specified herein as a Hotel Living Wage. The amount of the Hotel Living Wage required by this Section is $11.29 per hour with health benefits (if these benefits consist of the payment of at least $1.25 per hour towards the provision of health care benefits) or $12.54 per hour without health benefits as of the Effective Date, without any deduction on account of any gratuity or any part thereof given to or left for a Hotel worker by a Hotel patron. Any tips received by Hotel workers covered by this Section 2.8 shall be the sole property of the worker or workers to whom it was paid, given or left for. d) CPI Adjustment. The Hotel Living Wage minimum hourly rate required by this Section shall be adjusted annually each July 1st, beginning with July 2013. The minimum Hotel Living Wage rate shall continue to be adjusted annually by an amount corresponding to the previous year's change (January to January) in the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for Urban Wage Earners and Clerical Workers 1967 =100 for the Los Angeles- Riverside- Orange County Region of California (the "CPI ") ( http : / /www.bls.gov /ro9 /news.htm), using an initial hourly rate of $11.29 per hour with health benefits of at least $1.25 per hour or $12.54 per hour without health benefits as of the month and year in which the Effective Date falls. In the event the compilation and/or publication of the CPbshall be transferred 24 to any other governmental department or bureau or agency or shall be discontinued, then an index most nearly the same as the CPI shall be used to make such calculation, as reasonably determined by Developer. e) . Collective Bargaining Exception. The provisions of this Section 2.8 may be waived, in full or in part, in a bona fide collective bargaining agreement, but only if and to the extent the waiver is explicitly set forth in such agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute, or be permitted as, a waiver of all of any part of the provisions of this Section 2.8. 0 Periodic Review of Hotel Living Wage. Once construction of the Project's subterranean parking structure has been completed and construction of the above grade . floors has been commenced, or at some time thereafter, Developer may request in writing that the City Manager or his/her designee review and reduce the Hotel Living Wage then in effect. Following receipt of such request, the City Manager shall commission the preparation of a wage study documenting the wages paid to hotel workers in Santa Monica and nearby communities and any other analysis that the City Manager determines is reasonably necessary to assess Developer's request. The cost of said study shall be borne by Developer. The City Manager shall render a final decision on Developer's request for a reduced Hotel Living Wage within 90 days of the receipt of the final wage study. The City Manager's decision shall be guided by the statement of purpose contained in Section 2.8(a) above. The City Manager's decision shall set forth its reasoning and be based upon the data obtained concerning hotel workers' wages in Santa Monica and nearby communities Any reduction to the Hotel Living Wage then in effect which the City Manager determines is warranted and which does not exceed ten percent (10 %) shall be considered a Minor Modification to the Project. Any reduction to the Hotel Living Wage which the City Manager determines is warranted and which exceeds ten percent (10 1/6) shall be considered a Major Modification and would therefore require an amendment to this Agreement unless the Developer elects to limit the decrease to no more than ten percent. In no event shall the City Manager use Developer's request as an opportunity to increase the Hotel Living Wage above the initial Hotel Living Wage as adjusted by the CPI formula specified in Section 2.8(d). Each time the City Manager's decision has been made or a Major Modification having to do with the potential reduction of the Hotel Living Wage has been acted on, Developer may not renew such a request to reduce the Hotel Living Wage any sooner than three years after making the most recent prior such request. g) Termination Rights. In the event the City adopts a Living Wage Ordinance of general application to hotels located within the City, then the provisions of this Section 2.8 shall automatically be of no further force and effect. Alternatively, Developer shall have the right to elect to terminate this Section 2.8, effective 60 days after providing the City with written notice in accordance with this Agreement, in the event: (i) the City approves a development agreement for the construction of a new hotel or replacement hotel in the Downtown District (as defined in the LUCE) that, as of January 23, 2012, had a development agreement application or a float -up request pending, and (ii) any such development agreement does not include a comparable living wage obligation, and (iii) the hotel covered by such development agreement is not otherwise party to either an existing and on -going bona fide collective bargaining agreement or a labor union neutrality agreement for hotel workers. 25 h) Expiration. If not terminated any earlier, this Section 2.8 shall automatically expire and be of no further force or effect 15 years after the City's issuance of the Certificate of Occupancy for the Project. 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 Parking. The number of parking spaces provided in the Project shall be between 290 -325, including up to forty percent (40 %) compact parking spaces. This Agreement and the Project Plans set forth the exclusive off - street parking requirements for the Project and supersede all other minimum space parking requirements under the Existing Regulations, including without limitation Part 9.04.10.08 of the Zoning Ordinance. Those portions of the subterranean garage marked on the Project Plans as "rental vehicle storage" shall not count as parking spaces for purposes of this Section 2.10, Section 2.2(d), and Sections 2.4.3(c) and (d). In the event it is not used for rental vehicle storage, use of the rental vehicle storage area for off -site parking may be authorized by the Planning Director as Minor Modification pursuant to Section 2.4.2 of this Agreement. Should additional floor area be added to the Project, such additional floor area shall be subject to Developer's obligation to demonstrate sufficient availability of parking. 26 2.11 Design. 2.11.1 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 established by this Agreement shall prevail. 2.11.2 Building Height. The heights of the buildings shall be as shown on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the Building Height established by this Agreement, then the Building Height allowed by this Agreement shall prevail. 2.11.3 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 established by this Agreement, then the stepbacks required by this Agreement shall prevail. 2.11.4 Permitted Projections. Projections shall be permitted as reflected on the Project Plans. In the event that any inconsistency exists between the projections permitted by the Zoning Ordinance and the projections permitted by this Agreement, then the projections permitted by this Agreement shall prevail. 2.11.5 Siiznage . The location, size, materials and color of any signage on the Property shall be reviewed and approved by the Joint Design Review Body or approved pursuant to a sign program approved by the Joint Design Review Body as part of the process for obtaining a Certificate of Appropriateness and Architectural Approval in accordance with the procedures set forth in Section 6.1 herein. Directional signs for vehicles shall be located at approaches to driveways as required by the City's Strategic Transportation Planning Division. ARTICLE 3 CONSTRUCTION 3.1 Construction Mitigation Plan. During the construction phase of the Project, Developer shall comply with the Construction Mitigation Plan attached as Exhibit "K" hereto. 3.2 Construction Hours. 3.2.1 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.. 27 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 seventy- second (72 7) 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 Joint Design Review Body of the Project design does not occur within six (6) months of the submittal by Developer to the Joint Design Review Body of the Project design, then the Outside Building Permit Issuance Date shall be extended one month for each additional month greater than six that the final Joint Design Review Body approval is delayed. At any time before the last day of the seventy- second (72 °d) 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 Outside Building Permit Issuance Date may be administratively extended not more than one (1) time by the Planning Director for an additional twelve (12) months per extension. The Planning Director may grant such extension if Developer can demonstrate that substantial progress has been made towards obtaining a building permit and 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 (including because of Developer's inability to obtain project financing) 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. Excepting any utility conflicts, Developer shall be allowed to install tiebacks, subject to standard terms and conditions as determined by the City's Director of Public Works or designee, for Seventh Street, Wilshire Boulevard and Seventh Court. Developer shall compensate the City for such tiebacks in accordance with the City's tieback fees then in effect. All tiebacks on City property shall be de- tensioned and cut down five feet below grade prior to issuance of Certificate of Occupancy. 3.6 Construction Staging. Developer may use the Seventh Street frontage for construction staging at City's customary costs and procedures or permits then in effect. Developer may also use 1218 Lincoln Boulevard for construction staging. 3.7 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 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 for such work. 28 3.8 Completed and Final Landmarks Commission Review of 718 Wilshire Building. Demolition of the existing building located at 718 Wilshire Boulevard shall be exempt from any further Landmarks Commission review up through the Outside Building Permit Issuance Date. ARTICLE 4 PROJECT FEES EXACTIONS, MITIGATION MEASURES AND CONDITIONS 4.1 Fees, Exactions, Mitigation Measures and Conditions. Except as expressly set forth in Section 4.2 (relating to modifications), Section 2.7 (relating to Community Benefits), and Section 5.2 (relating to Subsequent Code Changes) below, the City shall charge and impose only those fees, exactions, mitigation measures, conditions, and standards of construction set forth in this Agreement, including Exhibits "C ", "D" and "K" attached hereto, and no others. If any of the mitigation measures or 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, mitigation measures and conditions in connection with its approval of Minor or Major Modifications, provided that all fees, exactions, mitigation measures and conditions shall be in accordance with any applicable law. 4.3 Implementation of Mitigation Measures. 4.3.1 Compliance with Mitigation Measures and Conditions. Developer shall be responsible for implementing the mitigation measures set forth in Section A of Exhibit "D" attached hereto, and Developer shall be responsible to adhere to the conditions of approval set forth in Section B of Exhibit "D" in accordance with the timelines established in Exhibit "D ". 4.3.2 Survival of Mitigation Measures and Conditions If Developer proceeds with the construction of the Project, except as otherwise expressly limited in this Agreement, the obligations and requirements imposed by the mitigation measures and 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 for the life of the project. 4.3.3 Fee Waivers and Reductions. Notwithstanding the foregoing, the Project shall be entitled to all fee waivers and fee reductions available for projects involving landmark buildings, under the SMMC. ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS 5.1 Development Standards for the Property; Existing Regulations. The following development standards and restrictions set forth in this Section 5.1 govern the use and development of the Project and shall constitute the Existing Regulations, except as otherwise expressly required by this Agreement. It 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 except as modified herein; (iii) the IZO; (iv) any and all or 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 or regulating wages or benefits. "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 Buildings and improvements that will comprise the Project, including without limitation, the development standards for the demolition, grading, design, development, construction, occupancy or use of such Buildings and improvements, and any exactions therefor, shall be governed by the Existing Regulations. The City agrees that this Agreement is consistent with the General Plan, including the LUCE, 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 design review by the Landmarks Commission as specified in Section 6.1 and review of modifications to the Project as expressly set forth in Sections 2.4.2 and 2.4.3; (b) the application of any subsequent local development or building moratoria, development or building rationing systems or other restrictions on development which would adversely affect the rate, timing, or phasing of construction of the Project, and (c) Subsequent Code Changes which are inconsistent with this Agreement. 5.2 Permitted Subsequent Code Changes. 5.2.1 Applicable Subsequent Code Changes. Notwithstanding the terms of Section 5.1, this Agreement shall not prevent the City from applying to the Project the following Subsequent Code Changes set forth below in this Section 5.2.1. 92 (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, or any environmental impact mitigation measures; provided that such fees and charges are uniformly imposed by the City at similar stages of project development on all similar applications and for all similar monitoring. Notwithstanding the foregoing, the Project shall be entitled to all fee waivers and fee reductions available for projects involving landmark buildings under the SMMC then in effect. (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. (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(g), 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 (dd) 31 above), or (ii) which would materially delay development of the Project, or that would cause a material change in the uses of the Project as provided in this Agreement. 5.2.2 New Rules and Regulations. This Agreement shall not be construed to prevent the City from applying new rules, regulations and policies in those circumstances specified in Government Code Section 65866. 5.2.3 State or Federal Laws. In the event that state or federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations; provided that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City and Developer shall use reasonable efforts to identify, assemble and copy three identical sets of the Existing Regulations, to be retained by the City and Developer, so that if it becomes necessary in the future to refer to any of the Existing Regulations, there will be a common set of the Existing Regulations available to all Parties. 5.4 Conflicting Enactments. Except as provided in Section 5.2 above, any Subsequent Code Change which would conflict in any way with or be more restrictive than the Existing Regulations shall not be applied by the City to any part of the Property. Developer may, in its sole discretion, give the City written notice of its election to have any Subsequent Code Change applied to such portion of the Property as it may have an interest in, in which case such Subsequent Code Change shall be deemed to be an Existing Regulation insofar as that portion of the Property is concerned. If there is any conflict or inconsistency between the terms and conditions of this Agreement and the Existing Regulations, the terms and conditions of this Agreement shall control. 5.5 Timing of Development. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that failure of the parties in that case to provide for the timing of development resulted in a later- adopted initiative restricting the timing of development to prevail over the parties' agreement. It is the intent of Developer and the City to cure that deficiency by expressly acknowledging and providing that any Subsequent Code Change that purports to limit over time the rate or timing of development or to alter the sequencing of development phases (whether adopted or imposed by the City Council or through the initiative or referendum process) shall not apply to the Property or the Project and shall not prevail over this Agreement. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed by the City on the amount of total square feet or the number of buildings, structures, residential units that can be built each year on the Property except as expressly provided in this Agreement. 32 ARTICLE 6 DESIGN REVIEW 6.1 Joint Landmarks Commission /Architectural Review Board Body. 6.1.1 This Agreement establishes a joint Landmarks Commission and Architectural Review Board body ( "Joint Design Review Body ") that shall have exclusive design review jurisdiction over the Project with respect to the Landmark Building, the New Construction, and all other improvements on the Property including landscaping, subject to the City Council's appellate jurisdiction in accordance with Chapter 9.36 of the Existing Regulations. In addition, the Joint Design Review Body's jurisdiction shall continue for the term of this Agreement and shall encompass any future activity on the Property, including the Landmark Building and the New Construction. 6.1.2 The Joint Design Review Body shall consist of seven members. Of the seven members, four shall be from the Landmarks Commission and three shall be from the Architectural Review Board. The Landmarks Commission and Architectural Review Board shall have the discretion to determine which of their Commissioners will serve on the Joint Design Review Body, however, each body must select at least one registered architect. The Director of Planning, or his or her designated representative, shall act as the Secretary of the Joint Design Review Body and shall maintain a record of all resolutions, proceedings, and actions of the Joint Design Review Body. 6.1.3 In accordance with Section 9.36.140, Developer shall obtain a certificate of appropriateness and architectural approval from the Joint Design Review Body or the City Council on appeal prior to any proposed alteration, restoration, construction, removal, relocation, or demolition, in whole or in part, to the Landmark Building and issuance of building permits for the New Construction and all other improvements on the Property including signage and landscaping. Except for the establishment of this Joint Design Review Body and an appeal process pursuant to this Agreement, Developer's application(s) for a certificate of appropriateness and architectural approval will be subject to the procedures and criteria in Chapter 9.36 and Section 9.32.140 of the Existing Regulations, except for the modifications set forth in Sections 6.1.4 through 6.1.8 below. 6.1.4 An appeal to the City Council of an action of the Joint Design Review Body shall be processed in accordance with SMMC 9.36.180 of Existing Regulations. 6.1.5 Consistent with Existing Regulations, in acting on the Architectural Approval application, the Joint Design Review Body cannot require modifications to the building design which negates the fundamental development standards established by this Agreement. For example, the Joint Design Review Body cannot require reduction in the overall height of the building, reduction in the number of stories in the building, or reduction in floor area greater than two percent (2 %). 6.1.6 Notwithstanding Section 6.1.3, neither the Joint Design Review Body nor the City Council on appeal shall have the authority in acting on a Certificate of Appropriateness 33 application to directly or indirectly require or take action that has the effect of requiring elimination of a physical connection between the Landmark Building and the New Construction. 6.1.7 Notwithstanding any provision of the Existing Regulations including 9.36.170(h), no Certificate of Appropriateness issued with respect to the Project shall expire through the Outside Building Permit Issuance Date. 6.1.8 Developer may elect from time to time, prior to filing an application for a Certificate of Appropriateness or Architectural Approval, to seek conceptual review from the Landmarks Commission, the Architectural Review Board, or the Joint Design Review Body in a duly noticed public hearing. Upon receiving such request from Developer, City shall promptly schedule such conceptual review. 6.1.9 A failure by Developer to comply with any requirement in a certificate of appropriateness or architectural approval shall constitute a Default of this Agreement. 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. 7.1.2 "Technical Permit Applications" means any applications required to be filed by Developer for any Technical City Permits. 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. 7.3 Conditions for Diligent Action by the City. 73:1 Acceptance and Processing of Technical Permit Applications. The obligation of the City to accept and diligently process the Technical Permit Applications which are filed by Developer, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions: (a) Developer shall have completed and filed all Technical Permit Applications which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided that such procedures and policies are uniformly in force and effect throughout the City; (b) Developer shall have paid all processing and permit fees established by the City in connection with the filing and processing of any Technical Permit Application which are in effect on the date when the Technical Permit Application is filed; provided that such fees are uniformly in force and effect throughout the City; and (c) If required for the particular Technical Permit Application, Developer shall have obtained the approval of the Landmarks Commission referred to in Section 6.1 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 Buildings; (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 Buildings; (c) The proposed Buildings conform to the development standards for such Buildings established in this Agreement. In the event that a proposed Building is not in conformance with the development standards, Developer shall have the right to seek any relief from such standards under the procedures then available in the City; and (d) The proposed Buildings conform to the Administrative and Technical Construction Codes of the City (Article VIII, Chapter I of the Santa Monica Municipal Code) (the "Technical Codes ") in effect on the date that the Technical Permit Application is filed. 7.4 New Technical Requirements. From time to time, the City's Technical Codes are amended to meet new technical requirements related to techniques of building and construction. If the sole means of achieving compliance for the Project with such revisions to the Technical Codes made after the Effective Date ( "New Technical Requirements ") would require an increase from the allowable Building Height established in this Agreement for the Project, then the Planning Director is hereby authorized to grant Developer limited relief from the allowable Building Height without amending this Agreement if the requested relief is in compliance with the City's General Plan. Any such approval shall be granted only after the Planning Director's receipt of a written request for such relief from Developer. Developer is required to supply the 35 Planning Director with written documentation of the fact that compliance with the New Technical Requirements cannot be achieved by some other method. Any such relief shall only be granted to the extent necessary in the Planning Director's determination for Developer to comply with the New Technical Requirements. 7.5 Duration of Technical City Permits. The duration of Technical City Permits issued by the City, and any extensions of the time period during which such Technical City Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. Subject to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall not preclude or impair Developer from subsequently filing another Technical Permit Application for the same matter during the Term of this Agreement, which shall be processed by the City in accordance with the provisions of this Article 7. Notwithstanding anything to the contrary in this Agreement, if Developer obtains building permits for the Project and, at any time after the Outside Construction Start Date, such building permits expire or are revoked pursuant to the applicable terms of the SMMC (as the same may be amended from time to time), then Developer may not subsequently apply for new building permits for the Project without first obtaining the prior written consent of the Planning Director, which may be granted or withheld in the Planning Director's sole discretion. ARTICLE 8 AMENDMENT AND MODIFICATION 8.1 Amendment and Modification of Development Agreement. Subject to the notice and hearing requirements of the applicable Development Agreement Statutes, this Agreement may be modified or amended from time to time only with the written consent of Developer and the City or their successors and assigns in accordance with the provisions of the SMMC and Section 65868 of the California Government Code. ARTICLE 9 TERM 9.1 Effective Date. This Agreement shall be dated, and the obligations of the Parties hereunder shall be effective as of the date upon which the ordinance approving this Agreement becomes effective (the "Effective Date "). The Parties shall execute this Agreement within ten (10) working days of the Effective Date. 9.2 Term. 9.2.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue for twenty (20) years thereafter (the "Term"), unless the Term is otherwise terminated pursuant to Section 11.4, after the satisfaction of all applicable public hearing and related procedural requirements or pursuant to Section 3.3. 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. IR 9.2.3 Effect of Termination. Except as expressly provided herein (e.g., Sections 3.8 and 4.3.2), none of the parties' respective rights and obligations under this Agreement shall survive the Term. ARTICLE 10 PERIODIC REVIEW OF COMPLIANCE 10.1 City Review. The City shall review compliance with this Development Agreement once each year, on or before each anniversary of the Effective Date (each, a "Periodic Review "), in accordance with this Section 10 in order to determine whether or not Developer is out -of- compliance with any specific term or provision of this Agreement. 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. The written report shall be provided in the form established by the City. 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 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. 37 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. 1 1.1.2 Monetary Breach. In the case of a monetary Breach by Developer, Developer shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by Developer of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable evidence of the Excusable Delay. 11.1.3 Non - Monetary Breach. In the case of anon-monetary Breach by either Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for 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 38 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- Monetary Default by the City of its obligations and duties under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary standard or the standard of review applicable to any action of, or approval by, the City pursuant to this Agreement or with respect to the Project. 11.3.4 No Damages Relief Against City. It is acknowledged by Developer that the City would not have entered into this Agreement if the City were to be liable in damages under or with respect to this Agreement or the application thereof. Consequently, and except for the payment of attorneys' fees and court costs, the City shall not be liable in damages to Developer and Developer covenants on behalf of itself and its successors in interest not to sue for or claim any damages: (a) for any default under this Agreement; (b) for the regulatory taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; or (c) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 39 The City and Developer agree that the provisions of this Section l 1.3.4 do not apply for damages which: (a) do not arise under this Agreement; (b) are not with respect to any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or (c) do not arise out of or which are not connected to any dispute, controversy, or issue regarding the application, interpretation, or effect of the provisions of this Agreement or the application of any City rules, regulations, or official policies. 11.3.5 Enforcement by the City. The City, at its discretion, shall be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the same may be amended from time to time and shall follow the notice procedures of Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these remedies are applied. 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 (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. ,M 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 11 as applicable and (ii) further determines that Developer (or the Secured Lender, if applicable) has not cured (within the applicable cure periods) the acts or omissions that constitute the basis of the determination under clause (i) above or if those acts or omissions could not be reasonably remedied prior to the public hearing that Developer (or the Secured Lender) has not in good faith commenced to cure or correct such acts or omissions prior to the public hearing or is not diligently and continuously proceeding therewith to completion, then upon making such conclusions, the City Council may modify or terminate this Agreement. The City cannot unilaterally modify the provisions of this Agreement pursuant to this Section 11.4. Any such modification requires the written consent of Developer. If the City Council does not terminate this Agreement, but proposes a modification to this Agreement as a result of the public hearing and Developer does not (within five (5) days of receipt) execute and deliver to the City the form of modification of this Agreement submitted to Developer by the City, then the City Council may elect to terminate this Agreement at any time after the sixth day after Developer's receipt of such proposed modification. 11.5 Cessation of Rights and Obligations. If this Agreement is terminated by the City pursuant to and in accordance with Section 11.41 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. 41 11.6 Completion of Improvements. Notwithstanding the provisions of Sections 11.2, 11.3,L1.4, 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 Buildings in accordance with the terms of the building permit and occupy or use each such Building upon completion for the uses permitted for that Building as provided in this Agreement. Any Building completed or occupied pursuant to this Section 11.6 shall be considered legal non- conforming subject to all City ordinances standards and policies as they then exist governing legal non - conforming buildings and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district. ARTICLE 12 MORTGAGEES 12.1 Encumbrances on the Property. This Agreement shall not prevent or limit Developer (in its sole discretion), from encumbering the Property (in any manner) or any portion thereof or any improvement thereon by any mortgage, deed of trust, assignment of rents or other security device securing financing with respect to the Property (a "Mortgage "). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a "Secured Lender ") on the Property shall be entitled to the rights and privileges set forth in this Article 12. Any Secured Lender may require from the City certain interpretations of this Agreement. The City shall from time to time, upon request made by Developer, meet with Developer and representatives of each of its Secured Lenders to negotiate in good faith any Secured Lender's request for interpretation of any part of this Agreement. The City will not unreasonably withhold, condition or delay the delivery to a Secured Lender of the City's written response to any such requested interpretation. 12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section 12.1.2; neither entering into this Agreement nor a Breach of this Agreement, nor any Event of Monetary Default nor any Event of Non-Monetary Default shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. 12.1.2 Priority of Agreement. This Agreement shall be superior and senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Secured Lender or its successor in interest (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise) shall be subject to all of the terms and conditions of this Agreement. 12.1.3 Right of Secured Lender to Cure Default. (a) A Secured Lender may give notice to the City, specifying the name and address of such Secured Lender and attaching thereto a true and complete copy of the Mortgage held by such Secured Lender, specifying the portion of the Property that is encumbered by the Secured Lender's lien (a "Request for Notice "). If the Request for Notice has been given, at the same time the City sends to Developer any Notice of Breach or Hearing Notice under this Agreement, then if such Notice of Breach or Hearing Notice affects the portion 42 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 (3 0) days in the case of any Event of Non-Monetary Default, during which period the Secured Lender may provide a remedy or cure of the applicable Event of Monetary Default or may provide a remedy or cure of the applicable Event of Non - Monetary Default; provided that if the cure of the Event of Non - Monetary Default cannot reasonably be completed within thirty days, Secured Lender may, within such 30 -day period, commence to cure the same and thereafter diligently prosecute such cure to completion (a "Secured Lender's Cure Period "). If Developer has caused an Event of Monetary Default or an Event of Non - Monetary Default, then each Secured Lender shall have the right to remedy such Event of Monetary Default or an Event of Non - Monetary Default, as applicable, or to cause the same to be remedied prior to the conclusion of the Secured Lender's Cure Period and otherwise as herein provided. The City shall accept performance by any Secured Lender of any covenant, condition, or agreement on Developer's part to be performed hereunder with the same force and effect as though performed by Developer. (c) The period of time given to the Secured Lender to cure any Event of Monetary Default or an Event of Non - Monetary Default by Developer which reasonably requires that said Secured Lender be in possession of the Property to do so, shall be deemed extended to include the period of time reasonably required by said Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver or otherwise) promptly and with due diligence; provided that during such period all other obligations of Developer under this Agreement, including, without limitation, payment of all amounts due, are being duly and promptly performed. 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. 43 (b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City's authority to terminate this Agreement, as against any Secured Lender as well as against Developer if any curable Event of Monetary Default or an Event of Non-Monetary Default is not completely cured within the Secured Lender's Cure Period. ARTICLE 13 TRANSFERS AND ASSIGNMENTS 13.1. Transfers and Assignments. 13.1.1 Not Severable from Ownership Interest in Property. This Agreement shall not be severable from Developer's interest in the Property and any transfer of the Property or any portion thereof shall automatically operate to transfer the benefits and burdens of this Agreement with respect to the transferred Property or transferred portions, as applicable. 13.1.2 Transfer Rights. Developer may freely sell, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Property, without the consent of the City. Developer shall, however, give written notice to the City, in accordance with Section 15.1, of any transfer of the Property, disclosing in such notice (a) the identity of the transferee of the Property (the "Property Transferee ") and (b) the address of the Property Transferee as applicable. 13.2 Release Upon Transfer. Upon the sale, transfer, exchange or hypothecation of the rights and interests of Developer to the Property, Developer shall be released from its obligations under this Agreement to the extent of such sale, transfer or exchange with respect to the Property if : (a) Developer has provided written notice of such transfer to City; and (b) the Property Transferee executes and delivers to City a written agreement in which the Property Transferee expressly and unconditionally assumes all of the obligations of Developer under this Agreement with respect to the Property in the form of Exhibit "L" attached hereto (the "Assumption Agreement "). Upon such transfer of the Property and the express assumption of Developer's obligations under this Agreement by the transferee, the City agrees to look solely to the transferee for compliance with the provisions of this Agreement. Any such transferee 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 91 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 Tenn and relates to this Agreement; (2) for any act or omission related to the operations of Developer Parties, including but not limited to the maintenance and operation of areas on the Property accessible to the public. Developer's obligation to defend, indemnify and hold harmless applies to all actions and omissions of Developer Parties as described above caused or alleged to have been caused in connection with the Project or Agreement, except to the extent any Damages are caused by the active negligence or willful misconduct of any City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to have been suffered by the City Indemnified Parties regardless of whether or not the City prepared, supplied or approved plans or specifications or both for the Project. 14.2 City's Right to Defense. The City shall have the right to approve legal counsel retained by Developer to defend any claim, action or proceeding which Developer is obligated to defend pursuant to Section 14. 1, which approval shall not be unreasonably withheld, conditioned or delayed. If any conflict of interest results during the mutual representation of the City and Developer in defense of any such action, or if the City is reasonably dissatisfied with legal counsel retained by Developer, the City shall have the right (a) at Developer's costs and expense, to have the City Attorney undertake and continue the City's defense, or (b) with Developer's approval, which shall not be reasonably withheld or delayed, to select separate outside legal counsel to undertake and continue the City's defense. ARTICLE 15 GENERAL PROVISIONS 15.1 Notices. Formal notices, demands and communications between the Parties shall be deemed sufficiently given if delivered to the principal offices of the City or Developer, as applicable, by (i) personal service, or (ii) express mail, Federal Express, or other similar overnight mail or courier service, regularly providing proof of 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, CA 90401 Attention: City Manager Fax: (310) 917 -6640 LE With a Copy to: City of Santa Monica 1685 Main Street, Room 212 Santa Monica, CA 90401 Attn: Planning and Community Development Director Fax: (310) 458 -3380 To Developer: Maxser & Company 710 Wilshire Blvd., #409 Santa Monica, California 90401 Attn: Alex Gorby With a Copy to: Harding Larmore Kutcher & Kozal, LLP 1250 Sixth Street, Suite 200 Santa Monica, California 90401 Attn: Kenneth L. Kutcher Fax: (310) 392 -3537 Notice given in any other manner shall be effective when received by the addressee. Any Party may change the addresses for delivery of notices to such Party by delivering notice to the other Party in accordance with this provision. 15.2 Entire Agreement Conflicts. This Agreement represents the entire agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Existing Regulations, then the provisions of this Agreement shall prevail. Should any of the Conditions of Approval set forth in Section B of Exhibit "D" attached hereto conflict with any of the Mitigation Measures set forth in Section A of Exhibit "D" attached hereto, the more stringent or exacting requirement shall control. 15.3 Binding Effect. The Parties intend that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property during the Term for the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of all successors -in- interest to the Parties hereto. Every Party who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Project during the Term is and shall be conclusively deemed to have consented and agreed to every provision contained herein, to the extent relevant to said right, title or interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project. i, 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: EVA (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 terns 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. M 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 Parry shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post - judgment proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid whether or not such action is prosecuted to judgment. In any case where this Agreement provides that the City or Developer is entitled to recover attorneys' fees from the other, the Party so entitled to recover shall be entitled to an amount equal to the fair market value of services provided by attorneys employed by it as well as any attorneys' fees actually paid by it to third Parties. The fair market value of the legal services for public attorneys shall be determined by utilizing the prevailing billing rates of comparable private attorneys. 15.12 Recordation. The Parties shall cause this Agreement to be recorded against title to the Property in the Official Records of the County of Los Angeles. The cost, if any, of recording this Agreement shall be borne by Developer. 15.13 No Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and referring expressly to this Section 15.13. No delay or omission by either Party in exercising any right or power accruing upon non - compliance or failure to perform by the other Party under any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof, except as expressly provided herein. No waiver by either Party of any of the covenants or conditions to be performed by the other Party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof of this Agreement. 15.14 Construction of this Agreement. The Parties agree that each Party and its legal counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. 15.15 Other Governmental Approvals. Developer may apply for such other permits and approvals as may be required for development of the Project in accordance with this Agreement from other governmental or quasi- governmental agencies having jurisdiction over the Property. The City shall reasonably cooperate with Developer in its endeavors to obtain such permits and approvals. 15.15.1 Further Assurances; Covenant to Sign Documents. Each Party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings, which may be necessary or proper to achieve the purposes and objectives of this Agreement. 15.15.2 Processing. Upon satisfactory completion by Developer of all required preliminary actions and payments of appropriate processing fees, if any, the City shall, subject to all legal requirements, promptly initiate, diligently process, and complete at the earliest possible time all required steps, and expeditiously act upon any approvals and permits necessary for the ,. development by Developer of the Project in accordance with this Agreement, including, but not limited to, the following: (a) the processing of applications for and issuing of all Discretionary Approvals requiring the exercise of judgment and deliberation by City; (b) the holding of any required public hearings; and (c) the processing of applications for and issuing of all City Technical Permits requiring the determination of conformance with the Existing Regulations. 15.15.3 No Revocation. The City shall not revoke or subsequently disapprove any approval or future approval for the development of the Project or the Property once issued by the City provided that the development of the Project or the Property is in accordance with such approval. Any disapproval by the City shall state in writing the reasons for such disapproval and the suggested actions to be taken in order for approval to be granted. 15.15.4 Processing During Third Party Litigation. If any third party lawsuit is filed against the City or Developer relating to this Agreement or to other development issues affecting the Property, the City shall not delay or stop.the development, processing or construction of the Property, or issuance of the City Technical Permits, unless the third party obtains a court order preventing the activity. The City shall not stipulate to or fail to oppose the issuance of any such order. Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8.1(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 terms of this Agreement. 15.16 Venue. Any legal action or proceeding among the Parties arising out of this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California. 15.17 Exhibits. The following exhibits which are part of this Agreement are attached hereto and each of which is incorporated herein by this reference as though set forth in full: Exhibit "A" Legal Description of the Property Exhibit `B" Project Plans Exhibit "C" Permitted Fees and Exactions 50 Exhibit "D" Mitigation Measures and Conditions Exhibit "E" SMMC Article 9 (Planning and Zoning) Exhibit "F" Hotel Conditions of Approval to Dispense Alcohol Exhibit "G" Restaurant "A" Conditions of Approval to Dispense Alcohol Exhibit "H" Restaurant "El" Conditions of Approval to Dispense Alcohol Exhibit "I" Standard Restaurant Conditions to Dispense Alcohol Exhibit "J -1" Local Hiring Program for Construction Exhibit "J -2" Local Hiring Program for Permanent Jobs Exhibit "K" Construction Mitigation Plan Exhibit "L" Assignment and Assumption Agreement 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, it is the owner of the entire Property, subject to encumbrances, easements, covenants, conditions, restrictions, and other matters.of record. 15.21 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and Developer. During the Term of this Agreement, clarifications to this Agreement and the Existing Regulations may be appropriate with respect to the details of performance of the City and Developer. If and when, from time to time, during the term of this Agreement, the City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by the City and Developer, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by the City and Developer. Operating memoranda are not intended to and cannot constitute an amendment to this Agreement but mere ministerial clarifications, 51 therefore public notices and hearings shall not be required for any operating memorandum. The City Attorney shall be authorized, upon consultation with, and approval of Developer, to determine whether a requested clarification may be effectuated pursuant to the execution and delivery of an operating memorandum or whether the requested clarification is of such character to constitute an amendment of this Agreement which requires compliance with the provisions of Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council. 15.22 Acknowledgments Agreements and Assurance on the Part of Developer. 15.22.1 Developer's Faithful Performance, The Parties acknowledge and agree that Developer's faithful performance in developing the Project on the Property and in constructing and installing certain public improvements pursuant to this Agreement and complying with the Existing Regulations will fulfill substantial public needs. The City acknowledges and agrees that there is, good and valuable consideration to the City resulting from Developer's assurances and faithful performance thereof and that same is in balance with the benefits conferred by the City on the Project. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable. Developer acknowledges that the consideration is reasonably related to the type and extent of the impacts of the Project on the community and the Property, and further acknowledges that the consideration is necessary to mitigate the direct and indirect impacts caused by Developer on the Property. 15.22.2 Obligations to be Non - Recourse. As a material element of this Agreement, and in partial consideration for Developer's execution of this Agreement, the Parties each understand and agree that the City's remedies for breach of the obligations of Developer under this Agreement shall be limited as described in Sections 11.2 through 11.4 above. 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 buildings and improvements located thereon, by any person for any purpose inimical to the development of the Project, including without limitation to prevent any person or entity from obtaining or accruing any prescriptive or other right to use the Property or the Project except as provided for in Section 2.7(m). 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 52 effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. This Agreement is executed by the Parties on the date first set forth above and is made effective on and as of the Effective Date. DEVELOPER: MAXSER & COMPANY A California limited partnership By: AMGOR REALTY INC. A California corporation By: Name: Title: CITY: CITY OF SANTA MONICA, a municipal corporation By: Name: Title: ATTEST: By: Name: City Clerk APPROVED AS TO FORM: By: Name: City Attorney 53 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY LOTS R, S, T, U, V, W, X AND Z IN BLOCK 117 OF SANTA MONICA, IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 39 PAGES 45 TO 51 INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. 1 W4101111 y a PROJECT PLANS On file With City of Santa Monica 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 Joint Design Review Body review, Developer shall pay City fees for processing of Architectural Approval applications; (b) Upon submittal for plan check, Developer shall pay City plan check fees in effect at time of plan check; (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) e Shoring Tieback fee (collected by PW) • 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, if applicable, prior to issuance of a building permit. Developer shall pay the fee, if applicable, prior to the issuance of a final certificate of occupancy for the Project. (d) Upon inspection of the Project during the course of construction, City inspection fees. These fees shall be reimbursed to developer in accordance with the City's standard practice should Developer not proceed with development of the Project. 2. Prior to issuance of permits for any construction work in the public right -of -way, or use of public property, Developer shall pay the following City fees: • Use of Public Property Permit fees (SMMC 7.04.670) (PW) • Utility Excavation Permit fee (SMMC 7.04.790(b)) (P4) • Street Permit fee (SMMC 7.04.790) (PV) 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. MITIGATION MEASURES AND CONDITIONS OF APPROVAL SECTION A - MITIGATION MEASURES CON -1 Construction Impact Mitigation Plan. The applicant shall prepare, implement and maintain a Construction Impact Mitigation Plan which shall be designed to: Prevent traffic impacts on the surrounding roadway network. Minimize parking impacts both to public parking and access to private parking to the greatest extent practicable. Ensure safety for both those constructing the project and the surrounding community. Prevent substantial truck traffic through residential neighborhoods. The Construction Impact Mitigation Plan shall be subject to review and approval by the following City departments: Public Works Department, Fire, Planning and Community Development and Police to ensure that the Plan has been designed in accordance with this Mitigation Measure. This review shall occur prior to issuance of grading or building permits. It shall, at a minimum, include the following: Ongoing Requirements Throughout the Duration of Construction • A detailed traffic control plan for.work zones shall be maintained. At a minimum, this shall include: parking and travel lane configurations; warning, regulatory, guide and directional signage; and area sidewalks, bicycle lanes and parking lanes. The plan shall include specific information regarding the project's construction activities that may disrupt normal pedestrian and traffic flow and the measures to address these disruptions. Such plans shall be reviewed and approved by the Transportation Management Division prior to commencement of construction and implemented in accordance with this approval. • Work within the public right -of -way shall be performed between 9:00 a.m. and 4:00 p.m. This work includes dirt and demolition material hauling and construction material delivery. Work within the public right -of -way outside of these hours shall only be allowed after the issuance of an after -hours construction permit. • Streets and equipment shall be cleaned in accordance with established PW requirements. • Trucks shall only travel on a City - approved construction route. Truck queuing /staging shall not be allowed on Santa Monica streets. Limited queuing may occur on the construction site itself. • Materials and equipment shall be minimally visible to the public; the preferred location for materials is to be on -site, with a minimum amount of materials within a work area in the public right -of -way, subject to a current Use of Public Property Permit. • Any requests for work before or after normal construction hours within the public right -of -way shall be subject to review and approval through the After Hours Permit process administered by the Building and Safety Division. • Provision of off - street parking for construction workers, which may include the use of a remote location with shuttle transport to the site, if determined necessary by the City of Santa Monica. Proiect Coordination Elements That Shall Be Implemented Prior to Commencement of Construction • The applicant shall advise the travelingpublic of impending construction activities (e.g., information signs, portable message signs, media listing /notification, implementation of an approved traffic control plan). • The applicant shall obtain a Use of Public Property Permit, Excavation Permit, Sewer Permit or Oversize Load Permit, as well as any Caltrans Permits required, for any construction work requiring encroachment into public rights -of -way, detours or any other work within the public right -of -way. • The applicant shall provide timely notification of construction schedules to all affected agencies (e.g., Big Blue Bus, Police Department, Fire Department, Public Works Department, and Planning and Community Development Department) and to all owners and residential and commercial tenants ofproperty within a radius of 500 feet. • The applicant shall coordinate construction work with affected agencies in advance of start of work Approvals may lake up to two weeks per each submittal. • The applicant shall obtain Transportation Management Division approval of any haul routes for earth, concrete or construction materials and equipment hauling. 2. CON -2(a) Restrictions on Excavation and Foundation /Conditioning. Excavation, foundation - laying, and conditioning activities (the noisiest phases of construction) shall be restricted to between the hours of 10:00 a.m. and 3:00 p.m., Monday through Friday, to the extent that they exceed the applicable construction noise limits, in accordance with Section 4.12.110(d) of the Santa Monica Municipal Code. At any time that these construction activities occur outside of the specified hours, a noise monitor shall be present on the project site in order to monitor noise levels at the nearest sensitive noise receptors (residences in the apartment building located on Lincoln Boulevard, immediately adjacent to the 1218 Lincoln Boulevard lot). If noise levels exceed the levels established in the Santa Monica Municipal Code for Zone II properties (85 dBA during the weekday daytime for a 15 minute continuous period and instantaneous construction noise level of 105 dBA during the weekday daytime for a 15 minute continuous period), construction activities shall immediately cease until noise levels can be reduced to a level consistent with the levels established in the Santa Monica Municipal Code. 3. CON -2(b) Diesel Equipment Mufflers. All diesel equipment shall be operated with closed engine doors and shall be equipped with factory- recommended mufflers. 4. CON -2(c) Electrically- Powered Tools. Electrical powered shall be used to run air compressors and similar power tools. 5. CON -2(d) Additional Noise Attenuation Techniques. For all noise - generating construction activity on the project site, additional noise attenuation techniques shall be employed as necessary 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. 6. CON -5(a) Fugitive Dust. All construction shall comply with the requirements of SCAQMD Rule 403, Fugitive Dust, which requires the implementation of Reasonably Available Control Measures (RACM) for all fugitive dust sources, and the Air Quality Management Plan (AQMP), which identifies Best Available Control Measures (BALM) and Best Available Control Technologies (BACT) for area sources and point sources, respectively. CON -5(b) Staging Area. Construction contractors shall establish an on -site construction equipment staging area and construction worker parking lot, located on either paved surfaces or unpaved surfaces subjected to soil stabilization treatments, as close as possible to a public highway. Control access to public roadways by limiting curb cuts /driveways to minimize project construction impacts upon roadway traffic operations. 8. CON -5(c) Non - Vehicular Equipment Engines. Construction contractors shall properly maintain non - vehicular equipment engines to minimize the volume of exhaust emissions. 9. CON -5(d) Electricity. Construction contractors shall use electricity from power poles, rather than temporary diesel or gasoline powered generators. 10. CON -5(c) Alternative Fuel Sources. Construction contractors shall use on -site mobile equipment powered by alternative fuel sources (i.e., methanol, natural gas, propane or butane) to the extent such equipment is commercially available. 11. CON -5(f) Inspection of Equipment. Construction contractors shall inspect construction equipment prior to leaving the site and wash off loose dirt with wheel washers, as necessary. 12. CON -5(g) Ridesharing /Shuttle. Construction contractors shall provide ridesharing or shuttle service for construction workers. 13. CON -5(h) PM10 Reduction Measures for Grading Activities. Particulate matter reduction measures from the SCAQMD shall be applied to all grading activities occurring on the project site throughout the construction phase. These shall include; • Apply water every 3 hours to disturbed areas within the construction site; • Require minimum soil moisture of 12% for earthmoving by use of a moveable sprinkler system or a water truck • Replace ground cover in disturbed areas as quickly as possible; and • All trucks hauling dirt, sand, soil, or other loose materials shall be tarped with a fabric cover and maintain a freeboard height of 12 inches. 14. CON -5(i) PM10 Reduction Measures for Haul Road Vehicle Activity. 'Particulate matter reduction measures from the SCAQMD shall be applied to all haul road vehicle activities occurring on the project site throughout the construction phase. These shall include: • Limit on -site vehicle speeds to 15 miles per hours with radar enforcement; • Install pipe -grid trackout- control device to reduce mud /dirt trackout fronv unpaved truck exit routes; • Replace ground cover in disturbed areas as quickly as possible; and • Apply chemical dust suppressant annually to unpaved parking areas. 15. CON -50) PM10 Reduction Measures for Demolition Activity. Particulate matter reduction measures from the SCAQMD shall be applied to all demolition activities occurring on the project site throughout the construction phase. These shall include: • Apply water every 4 hours to the area within 100 feet of a structure being demolished, to reduce vehicle trackout; • Apply water to disturbed soils after demolition is completed or at the end of each day of cleanup; • Prohibit demolition activities when wind speeds exceed 25 miles per hour; and • Apply dust suppressants (e.g. polymer emulsion) to disturbed areas upon completion of demolition. 16. CON -5(k) Mud /dirt Trackout onto Local Streets. Implement a street sweeping program with Rule 1186 compliant PM10 efficient vacuum units (14 -day frequency). 17. HR -1 Building Materials. In accordance with the Secretary of the Interior's Standards, the material and finish of the exterior walls of the new construction (not including new construction at the 1218 Lincoln Boulevard property) shall be compatible with, but should also be differentiated from the existing Landmark Santa Monica Professional Building. The design review body shall pay particular attention to the Landmark building's character- defining features including the "Y- shaped plan" and richly embellished ornamentation in relief, particularly surrounding the main entrance, 6`" floor elevations, and penthouse wings. 18. HR -2(a) Secretary of the Interior Standards. The rehabilitation of the Santa Monica Professional Building shall be undertaken with the assistance of a historic preservation architect meeting the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, Professional Qualifications Standards. The historic preservation architect will regularly review the ongoing rehabilitation to ensure it continues to satisfy the conditions of the Certificate of Appropriateness. The historic preservation architect will submit status reports to the City of Santa Monica's Landmarks Commission Liaison according to a schedule agreed upon prior to commencement of the rehabilitation. 19. HR -2(b) Secretary of the Interior Standards. As described in Section 9.36.140 of the Santa Monica Municipal Code, the Landmarks Commission shall use the Secretary of Interior' s Standards in evaluating the proposed rehabilitation of the Santa Monica Professional Building. In order to issue a Certificate of Appropriateness, the Landmarks Commission, or the City Council on appeal, will determine whether the rehabilitation satisfies the criteria for issuance of a Certificate of Appropriateness pursuant to the Santa Monica Municipal Code Section 9.36.140. In particular, any proposed repair of the building's windows, which define the building's upper stories, should be done in accordance with the Secretary of the Interior's Standards for Rehabilitation with particular attention given to the pattern, sash type, and dimensions of the historic building's existing windows. 20. HR -3(a) Protection of Building during Excavation and Construction. A registered structural engineer, with a minimum of five years of experience in the rehabilitation and restoration of historic buildings, shall investigate the existing relationship of the foundation of the Santa Monica Professional Building along the east elevation to the foundation of the existing building at 718 Wilshire Boulevard. Any required test excavations shall be performed only in the presence of the structural engineer. The structural engineer shall prepare a report of findings, recommendations and any related design modifications necessary to retain the structural integrity of the Santa Monica Professional Building. The structural engineer (in consultation with a historic preservation architect, meeting the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, Professional Qualifications Standards) shall prepare designs and specifications for protective barriers required to protect the east wall of the Santa Monica Professional Building from potential damage caused by construction activities. In addition, the structural engineer (with geotechnical consultation as necessary) shall determine whether, due to the nature of the excavations, soils, method of soil removal and the existing foundations of the historic buildings, the potential for settlement would require underpinning and /or shoring.. If underpinning and /or shoring is determined to be necessary, appropriate designs shall be prepared. All documents prepared in accordance with this Measure shall be reviewed and approved by the City of Santa Monica's Historic Preservation Officer, after consultation with appropriate City staff. 21. HR -3(b) Demolition Monitoring. Prior to demolition of the existing building at 718 Wilshire Boulevard, a historic preservation architect and a structural engineer shall undertake an existing condition study of the Santa Monica Professional Building to establish the baseline condition of the building prior to construction, including the location and extent of any visible cracks or spalls. The documentation shall take the form of written descriptions and photographs, and shall include those physical characteristics of the resource that convey its historic significance and that justify its inclusion on the local register. The documentation shall be reviewed and approved by the City of Santa Monica's Historic Preservation Officer, after consultation with appropriate City staff ( "monitoring team "). The historical architect and structural engineer shall monitor the Santa Monica Professional Building during construction and report any changes to existing conditions, including, but 10 not limited to, expansion of existing cracks, new spalls, or other exterior deterioration. Monitoring reports shall be submitted to the city's historic preservation officer on a periodic basis. The structural engineer shall consult with the historic preservation architect, especially if any problems with character - defining features of a historic resource are discovered. If in the opinion of the structural engineer, in consultation with the historic preservation architect, substantial adverse impacts to historic resources related to construction activities are found during construction, the monitoring team shall so inform the project sponsor or sponsor's designated representative responsible for construction activities. The project sponsor shall adhere to the monitoring team's recommendations for corrective measures, including halting construction in situations where construction activities would imminently endanger historic resources. The historic preservation officer shall establish the frequency of monitoring and reporting. The project sponsor shall respond to any claims of damage by inspecting the affected property promptly, but in no case more than five working days after the claim was filed and received by the project sponsor's designated representative. Any new cracks or other changes in the Santa Monica Professional Building shall be compared to pre - construction conditions and a determination made as to whether the proposed project could have caused such damage. In the event that the proposed project is demonstrated to have caused any damage, such damage shall be repaired to the pre- existing condition. Site visit reports and documents associated with claims processing shall be provided to the City of Santa Monica's Historic Preservation Officer. 22. HR -3(c) Vibration Specifications. The qualified structural engineer shall perform the following vibration mitigation: Prior to commencement of construction activities, measure and document the existing ground vibration environment at the vicinity of the historic buildings to establish baseline vibration conditions. The vibration measurements shall be performed during hours of the day consistent with the project's construction hours. At each site, ground vibration levels shall be measured in the vertical direction for a period of a minimum of 15 minutes. The vibration measurement equipment shall be capable to record the velocity levels in PPV (Peak Particle Velocity) and RMS (Root- Mean - Square) values in the unit of inch/ second, over the frequency range of I Hz to 100 Hz. Measured vibration data shall be submitted to the City and shall include; description of measurement location, measurement time and recorded values (maximum, minimum and mean levels during the measurement period) After establishing the baseline vibration conditions of the project site, develop and implement a vibration monitoring program capable of documenting the construction related ground vibration levels in the vicinity of the historic buildings. The vibration monitoring system shall be able to measure and store the PPV and RMS values over the band frequency ranges of 1 Hz to 100 Hz. The FTA identifies a threshold of 95 VdB for extremely fragile historic buildings. In order to ensure that construction activities remain below this threshold; the project vibration criteria shall be 0.12 inch/second (PPV) (equivalent to 90 VdB). The vibration monitoring system shall indicate any instances where the ground vibration levels 11 exceed the project vibration criteria. The vibration monitoring program shall be implemented during the site grading, excavation, and construction of the foundations only. If measurements indicate ground -borne vibration levels approach 0.12 inch/section PPV, the construction procedure /method shall be revised, including the type of equipment used, to maintain the ground -bome vibration requirements (not to exceed 0.12 inch/second PPV) at the historic buildings. The structural engineer will prepare weekly reports for the City to document the vibration monitoring program. Upon completion of construction, the structural engineer shall prepare a report for the City summarizing the results of the vibration monitoring program. In addition to vibration monitoring by the structural engineer, the architectural historian shall perform visual inspections of the historic buildings (exterior /interior structure, walls /ceilings, etc.) during site grading, excavation, and construction of the foundations, and note any new damages in a monitoring log. Similar to the structural engineer, the architectural historian shall prepare weekly reports for the City to document the vibration monitoring program. Upon completion of construction, the architectural historian shall prepare a report for the City summarizing the results of the vibration monitoring program. 23. HR -3(d) Historic Resource Training Program. Prior to demolition of the existing building at 718 Wilshire Boulevard, the historic preservation architect shall establish a training program for construction workers involved in the project that emphasizes protection of historic resources. This program shall include information on recognizing historic fabric and materials, and directions on how to exercise care when working around and operating equipment near the Santa Monica Professional Building, including storage of materials away from the historic building. It shall also include information on means to reduce vibrations from demolition and construction, and monitoring and reporting any potential problems that could affect the historic resource. A provision for establishing this training program shall be incorporated into the contract, and the contract provisions shall be reviewed and approved by the City of Santa Monica's Historic Preservation Officer. 24. HR -3(e) California Historical Building Code. If and to the extent such an election is made by the Applicant, design development plans shall be reviewed using the California Historical Building Code (CHBC, Part 8 of Title 24) provisions for compliance to the extent authorized. 25. GEO -I(a) Tieback Anchors. The lateral load on shoring piles shall be resisted by tieback anchors which are connected to the shoring beams, and shall be installed at 10 and 20 feet below grade. The tiebacks shall be 10 degrees to 20 degrees from the horizontal, with an effective anchorage behind an imaginary 60 degree plane from the horizontal, projected upwards from the bottom of the piles. The tiebacks at the 10 foot level shall be designed to bear a maximum of 500 pounds per square foot, while the tiebacks at the 20 foot level shall be designed to bear a maximum of 750 pounds per square foot. A detailed test loading program for tiebacks shall be established. Survey monitoring stations shall be established beyond the excavation area. Lateral deflection readings shall be taken on all soldier beams with each five to six feet of vertical excavation. Monitoring of the soldier beams shall be maintained at least weekly after the final depth has been achieved. 12 These records shall be provided to the design engineer, the geotechnical consultant and the City's Building and Safety Division as they are completed. In the event that the use of tieback anchors is infeasible because an adjoining property owner will not consent to installation of tieback anchors beneath the surface of their property, other equivalent shoring options, such as a raker system, may be used, subject to review and approval as part of the City's plan check process. 26. GEO -1(b) Retaining Wall Drainage. A proper drainage system utilizing either weep holes or a drainage pipe shall be installed to prevent hydrostatic pressure behind the retaining wall. If a drainage pipe is used, it shall consist of a four -inch perforated pipe (holes down), surrounded by at least 12 inches of % -inch gravel enveloped in a drainage fabric such as Miraft 140N or equivalent, placed at the base of the footing wall. If weep holes are used, these openings shall be four feet on center, and also situated at the base, of the footing wall with a gravel and drainage fabric backdrain. 27. GEO -1(c) . Temporary Excavation Slopes. Temporary excavation slopes in the existing surface soil may be made vertical for cuts of less than five feet. For deeper cuts, temporary excavation slopes shall be made no steeper than 1:1 (horizontal to vertical). In areas where soils with little or no binder are encountered, shoring or flatter excavation slopes shall be made. 28. GEO -1(d) Shoring. If temporary support of a vertical cut slope is needed for excavation of the subterranean parking garage (including the use of permanent foundations), such temporary support structures shall conform with the recommended lateral earth pressure for different shoring designs are illustrated on Plate F of the Geotechnical Engineering Investigation Report (Coastline Geotechnical Consultants, Inc, August 2010). 29. GEO -1(e) Inspection. The project's geotechnical engineer shall inspect all shoring piles, inspect all tieback anchor installations, observe all tieback testing, inspect all foundation excavations for the structure or retaining walls, and inspect all grading operations. 30. GEO -1(t) Dewatering Requirements. If temporary and /or permanent dewatering on the project site is required, the Applicant shall obtain a dewatering permit from the City of Santa Monica Water Resources Protection Program prior to the issuance of a grading permit. Soil and groundwater testing to a minimum depth of 50 feet shall be conducted to the satisfaction of the Water Resources Protection Program staff. If contaminated groundwater is discovered on -site, treatment and discharge of the contaminated groundwater shall be conducted in compliance with applicable regulatory requirements including the Los Angeles Regional Water Quality Control Board standards. 31. GEO -2(a) Slabs -on- Grade. Slabs -on grade shall be a minimum of five inches thick and reinforced with No. 4 bars, 16 inches on- center each way. The subgrade soils shall be moistened to a depth of 18 inches prior to placing of the membrane and pouring of floor slabs. The moisture content shall be at least 3% greater than the optimum moisture content. 13 A moisture barrier beneath the slabs -on- grade; preferably consisting of at least four inches of sand, with a waterproof vapor barrier, such as a plastic membrane of at least 15 mils in thickness, covered with two inches of clean sand, shall be utilized in areas where soil moisture would be detrimental. 32. GEO -2(b) Inspection. The project's geotechnical engineer shall inspect the premoistening of subgrade soils and placement of the sand cushion and vapor barrier beneath the slab. 33. HAZ-l(a) Soil -Vapor Testing. A sub - surface soil -vapor test for traces of tri- chloroethane (TCE), tetra - chloroethane (PCE) and volatile organic compounds shall be completed at least seven locations throughout the southern and /or western portions of the site. If contaminants are detected, the results of the soil sampling shall be forwarded to the City of Santa Monica and to the local regulatory agency (Fire Department, Los Angeles Regional Water Quality Control Board, or the State of California Environmental Protection Agency Department of Toxic Substances Control). The agency shall review the data and either sign off on the property or determine if any additional investigation or remedial activities are deemed necessary. If concentrations of contaminants in soil or soil gas warrant site remediation, remediation shall occur prior to construction of structures. The contaminated materials shall be remediated under the supervision of an environmental consultant licensed to oversee such remediation. The remediation program shall also be approved by the appropriate regulatory oversight agency, with a copy provided to the City of Santa Monica. All proper waste handling and disposal procedures shall be followed. Upon completion of the remediation, the environmental consultant shall prepare a report summarizing the project, the remediation approach implemented, and the analytical results after completion of the remediation, including all waste disposal or treatment manifests. 34. HAZ-1(b) Excavation and Demolition Contingency Plans. All excavation and demolition projects conducted within the project site shall have a contingency plan to be implemented in the event that contaminants or structural features that could be associated with contaminants or hazardous materials are suspected or discovered. The contingency plan shall require the presence of an environmental consultant to monitor the site during removal of slab /pavement and substructures to observe for evidence of contamination. The contingency plan shall stipulate that if contaminants are found or suspected, work around the area shall temporarily cease and appropriate measures shall be undertaken. The appropriate measures shall identify personnel to be notified, emergency contacts, and a sampling protocol to be implemented. The excavation and demolition contractors shall be made aware of the possibility of encountering unknown hazardous materials, and shall be provided with appropriate contact and notification information. The contingency plan shall include a provision stating at what point it is safe to continue with the excavation or demolition, and identify the person authorized to make that determination. 35. HAZ-l(c) Soil Sampling. If contaminants are detected, the results of the soil sampling shall be forwarded to the local regulatory agency (City of Santa Monica Fire Department 14 CUPA, Los Angeles Regional Water Quality Control Board, or the State of California Environmental Protection Agency Department of Toxic Substances Control). The agency shall review the data and either sign off on the property or determine if any additional investigation or remedial activities are deemed necessary. 36. HAZ -1(d) Soil Remediation. If concentrations of contaminants warrant site remediation, contaminated materials shall be remediated either prior to construction of structures or concurrent with construction. The contaminated materials shall be remediated under the supervision of an environmental consultant licensed to oversee such remediation. The remediation program shall also be approved by a regulatory oversight agency, such as the City of Santa Monica Fire Department CUPA, Los Angeles Regional Water Quality Control Board, or the State of California Environmental Protection Agency Department of Toxic Substances Control. All proper waste handling and disposal procedures shall be followed. Upon completion of the remediation, the environmental consultant shall prepare a report summarizing the project, the remediation approach implemented, and the analytical results after completion of the remediation, including all waste disposal or treatment manifests. 37. Mitigation Monitoring and Reporting Program. Pursuant to the requirements of Public Resources Code Section 21081.6, the City Planning Division will coordinate a monitoring and reporting program regarding any required changes to the project made in conjunction with project approval and any conditions of approval, including those conditions intended to mitigate or avoid significant effects on the environment. This program shall include, but is not limited to, ensuring that the City Planning Division itself and other City divisions and departments such as the Building and Safety Division, the Department of Environmental and Public Works, the Fire Department, the Police Department, the Planning and Community Development Department and the Finance Department are aware of project requirements which must be satisfied prior to issuance of a Building Permit, Certificate of Occupancy, or other permit, and that other responsible agencies are also informed of conditions relating to their responsibilities. Project owner shall demonstrate compliance with conditions of approval in a written report submitted to the Planning Director and Building Officer prior to issuance of a Building Permit or Certificate of Occupancy, and, as applicable, provide periodic reports regarding compliance with such conditions. SECTION B - CONDITIONS OF APPROVAL Project Specific Conditions 1. All restaurant and food service spoils from the hotel will be placed within sealed plastic trash bags before being placed outdoor refuse containers. Additionally, all outdoor refuse bins containing restaurant and food service spoils will be emptied daily at least five days per week. The project shall provide LUCE Community Benefits as established in Section 2.7.2 and Living Wage as established in Section 2.8 of this Agreement. 15 The Hotel's art budget shall provide a preference for Santa Monica artists, which may include students of Santa Monica High School or Santa Monica College. 4. The Joint Design Review Body shall pay particular attention to the following design elements of the project: • The south elevation stair tower to ensure that it provides visual interest • The south elevation above the hotel vehicle entrance to ensure that the proposed green wall is composed of a high quality material. The applicant shall be required to submit details of the green wall system to be used. • The north elevation of the southernmost wing to ensure that it continues the design detail on the remainder of the 7`h Street elevation and may include wrapping around the balconies, windows, texture, and articulation • The east elevation (alley) to ensure that it reflects the same level of detail as the west elevation (7`h Street) and references the belt line and upper level fenestration and detail of the 7th Street elevation • The pedestrian entrance to the hotel requires greater prominence and features that help to activate the Public Use Area identified in the plans • The retail paseo area needs to be activated with pedestrian- oriented amenities such as outdoor dining and seating • The ground floor open space, including landscaping and any water features, needs to engage pedestrians and should incorporate amenities such as seating or built -in furniture as well as artistic design elements • The interior elevations of the new construction (facing the courtyards) to ensure consistency and level of design detail on all elevations Administrative 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. 6. 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 This approval is for those plans dated March 20, 2012, 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. 8. 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. 16 9. Except as otherwise provided by the Development Agreement, project plans shall be subject to complete Code Compliance review when the building plans are submitted for plan check and shall comply with all applicable provisions of Article IX of the Municipal Code and all other pertinent ordinances and General Plan policies of the City of Santa Monica prior to building permit issuance. Fees 10. 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. 11. 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 12. Except as otherwise provided by the Development Agreement, no demolition of buildings or structure built 40 years of age or older shall be permitted until the end of a 60 -day review period by the Landmarks Commission to determine whether an application for landmark designation shall be filed. If an application for landmark designation is filed, no demolition shall be approved until a final determination is made by the Landmarks Commission on the application. 13. 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 14. 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. 15. The project shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). Rent Control 16. Pursuant to SMMC Section 4.24.030, prior to receipt of the final permit necessary to demolish, convert, or otherwise remove a controlled rental unit(s) from the housing market, the owner of the property shall first secure a removal permit under Section 17 1803(t), an exemption determination, an approval of a vested rights claim from the Rent Control Board, or have withdrawn the controlled rental unit(s) pursuant to the provisions of the Ellis Act. Final Design 17. Plans for final design, landscaping, screening, trash enclosures, and signage shall be subject to review and approval as established in the Development Agreement. 18. Landscaping plans shall comply with Subchapter 9.04.10.04 (Landscaping Standards) of the Zoning Ordinance including use of water- conserving landscaping, materials, landscape maintenance and other standards contained in the Subchapter. 19. 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 Joint Design Review Body 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 Joint Design Review Body, rooftop mechanical equipment shall be located at least five feet from the edge of the roof. 20. No gas or electric meters shall be located within the required front or street side yard setback areas. The Joint Design Review Body in its review shall pay particular attention to the location and screening of such meters. 21. Prior to consideration of the project by the Joint Design Review Body, 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 Joint Design Review Body, in its review, shall pay particular attention to the aesthetic, landscaping, and setback impacts of any ramps or other features necessitated by accessibility requirements. 22. As appropriate, the Joint Design Review Body shall require the use of anti - graffiti materials on surfaces likely to attract graffiti. 23. Prior to issuance of a building permit or business license, whichever is sooner, for any establishment which qualifies as a nightclub, bar or other establishment with amplified music pursuant to SMMC 4.12.140, the design of the entryway to such establishment shall be reconfigured to provide for double doors to mitigate possible noise impacts. Construction Plan Requirements 24. 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. 18 25. Any new restaurant at the site with fewer than 50 seats capacity shall install a grease interceptor with minimum 750 gallons static holding capacity in order to pretreat sewered grease. Facilities with greater than 50 seats are required to install an interceptor with 1000 gallons minimum holding capacity. The Public Works Department may modify the, above requirements only for good cause. Specifically, the facility must demonstrate to the satisfaction of the Industrial Waste Section and Building and Safety Division that interceptor installation is not feasible at the site in question. In such cases where modifications are granted, grease traps will be required in the place of an interceptor. Building permit plans shall show the required installation. Demolition Requirements 26. Until such time as the demolition is undertaken, and unless the structure is currently in use, the existing structure shall be maintained and secured by boarding up all openings, erecting a security fence, and removing all debris, bushes and planting that inhibit the easy surveillance of the property to the satisfaction of the Building and Safety Officer and the Fire Department. Any landscaping material remaining shall be watered and maintained until demolition occurs. 27. 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 28. 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. 29. 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. 30. Final parking lot layout and specifications shall be subject to the review and approval of the Transportation Management Division. 31. Construction period signage shall be subject to the approval of the Joint Design Review Body. 32. The property owner shall insure any graffiti on the site is promptly removed through compliance with the City's graffiti removal program. 19 PUBLIC LANDSCAPE 33. Street trees shall be maintained, relocated or provided as required in a manner consistent with the City's Urban Forest Master Plan, 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 34. 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 35. Developer shall be responsible for the payment of the following Public Works Department (PWD) permit fees prior to issuance of a building permit: a. Water Services b. Wastewater Capital Facility C. Water Demand Mitigation d. Fire Service Connection e. Tieback Encroachment f Encroachment of on -site improvements into public right -of -way g. Construction and Demolition Waste Management (deposit) These fees shall be reimbursed to developer in accordance with the City's standard practice should Developer not proceed with development of the Project. 36. 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. 37. 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. 38. 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. 39. 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. 20 40. 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. 41. Prior to the demolition of any existing structure, the applicant shall submit a report from an industrial hygienist to be reviewed and approved as to content and form by the Office of Sustainability, and Environment Division. The report shall consist of a hazardous materials survey for the structure proposed for demolition. The report shall include a section on asbestos and in accordance with the South Coast AQMD Rule 1403, the asbestos survey shall be performed by a state Certified Asbestos Consultant (CAC). The report shall include a section on lead, which shall be performed by a state Certified Lead Inspector /Assessor. Additional hazardous materials to be considered by the industrial hygienist shall include: mercury (in thermostats, switches, fluorescent light), polychlorinated biphenyls (PCBs) (including light Ballast), and fuels, pesticides, and batteries. Water Resources 42. 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. 43. 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. 44. 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. 45. 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. 46. Developer shall not directly connect to a public storm drain pipe or direct site drainage to the public alley. 47. All existing sanitary sewer "house connections" to be abandoned, shall be removed and capped at the "Y" connections. 48. 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. 21 49. Developer is required to meet state cross - connection and potable water sanitation guidelines. Refer to requirements and comply with the cross - connections guidelines available at: http:// www.lapublichealth.org /eh/progs /envirp /ehcross.htm. Prior to issuance of a Certificate of Occupancy, a cross - connection inspection shall be completed. 50. 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. 51. 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 52. 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 53. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable during the grading and construction phase of the project. 54. 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 55. 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. 56. 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 Recyclin¢ 57. 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. 58. 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: 59. 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 GENERAL REQUIREMENTS The following comments are to be included on plans if applicable. 23 Requirements are based on the California Fire Code (CFC), the Santa Monica Municipal Code (SMMC) and the California Building Code (CBC). For the Landmark building, Developer may request exceptions from these requirements pursuant to the State Historic Building Code. California Fire Code/ Santa Monica Fire Department Requirements 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. Buildings four or more stories in height shall be provided with not less than one standpipe during construction. 7. The standpipe(s) shall be installed before the progress of construction is more than 35- feet above grade. Two - and - one - half -inch valve hose connections shall be provided at approved, accessible locations adjacent to useable stairs. Temporary standpipes shall be capable of delivering a minimum demand of 500 gpm at 100 -psi residual pressure. Pumping equipment shall be capable of providing the required pressure and volume. 8. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum rating of 2A- lOB: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. 9. 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. 10. 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 24 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) 11. 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. 12. 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. 13. Show ALL door hardware intended for installation on Exit doors. 14. 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) 15. Stairway Identification shall be in compliance with CBC 1022.8 16. Floor -level exit signs are required in Group A, E, 1, R -1, R -2 and R -4 occupancies. 17. 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. 18. 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 (3 10) 458 -8915. 19. 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 20. An approved fire alarm system shall be installed as follows: 21. 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 25 approved voice communication system. Emergency power shall be provided for the voice communication system. 22. Group E Occupancies having occupant loads of 50 or more shall be provided with an approved manual fire alarm system. 23. 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. 24. 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 25. 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. 26. 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. 26 27 96" 28' R TYP' 26' x 96' DIAMETER CUL -DE -SAC M 120' HAMMERHEAD 2°'--L 26' R —> t 26' 2T' 6' — 20 —20' 60' °Y' MINIMUM CLEARANCE AROUND A FIRE HYDRANT 28' R TYP' rt -7n' -> 2°'-T - 201 ACCEPTABLE ALTERNATIVE TO 120' HAMMERHEAD b. Gates may be of the swinging or sliding type. C. Gates shall be constructed of materials that will allow for manual operation by one person. d. All gate components shall be maintained in an operative condition at all times and shall be repaired or replaced when defective. e. Electric gates shall be equipped with a means of opening the gate by fire department personnel for emergency access. The Fire Prevention Division shall approve emergency opening devices. f. Manual opening gates may be locked with a padlock, as long it is accessible to be opened by means of forcible entry tools. g. The Fire Prevention Division shall approve locking device specification. Fire apparatus access roads shall be marked with permanent NO PARKING — FIRE LANE CVC SECTION 22500.1. Signs shall have a minimum dimension of 12 inches wide and 18 inches high having red letters on a white reflective background. a. Fire apparatus access roads signs and placement shall comply with the following: i. Fire Apparatus access roads 20 to 26 feet wide must be posted on both sides as a fire lane. ii. Fire Apparatus access roads 26 to 32 feet wide must be posted on one side as a fire lane. 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. 27 29. Fire apparatus access roads for commercial and industrial development shall comply with the following: L 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. 30. Aerial apparatus access roads shall comply with the following: L Buildings or portions of buildings or facilities exceeding 30 feet in height from the lowest point of Fire Department access shall be provided shall be provided with approved apparatus access roads capable of accommodating aerial apparatus. ii. Apparatus access roads shall have a minimum width of 26 feet in the immediate vicinity of any building or portion of a building more than 30 feet in height. iii: At least one of the required access roads meeting this condition shall be located within a minimum of 15 feet and maximum of 30 feet from the building and shall be a positioned parallel to one entire side of the building. 31. 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) i {omitted} g: Elevators. h. Standby power and light and emergency systems. i. Exits j. Seismic consideration. Total Floor Area of Building or Project • Basic Allowable Floor Area • Floor Area for each room or area • Detail allowable area increase calculations Corridor Construction • Type of Construction Detail any and all code exceptions being used Occupant Load Calculations • Occupancy Classification for each room or area. • Occupant Load Calculation for each room or area based on use or occupancy • Total Proposed. Occupant Load Means of Egress • Exit width calculations • Exit path of travel • Exit Signage and Pathway Illumination (low level exit signage) Atria - Atria shall comply with CBC Section 404 as follows: • Atria shall not be permitted in buildings containing Group H Occupancies. • The entire building shall be sprinklered. • A mechanically operated smoke - control system meeting the requirements of Section 909 and 909.9 shall be installed. • Smoke detectors shall be installed in accordance with the Fire Code. • Except for open exit balconies within the atrium, the atrium shall be separated from adjacent spaces by one -hour fire- resistive construction. See exceptions to Section 404.6. • When a required exit enters the atrium space, the travel distance from the doorway of the tenant space to an enclosed stairway, horizontal exit, exterior door or exit passageway shall not exceed 200 feet. • In other than jails, prisons and reformatories, sleeping rooms of Group I Occupancies shall not have required exits through the atrium. • Standby power shall be provided for the atrium and tenant space smoke - control system. Sections 404.7 and 909.11. • The interior finish for walls and ceilings of the atrium and all unseparated tenant spaces shall be Class I. Section 404.8. Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only contain furnishings and decorative materials with potential heat of combustion less than 9,000 Btu's per pound. All furnishings to comply with California Bureau of Home Furnishings, Technical Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies." 29 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 32. 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 Il. RESPONSIBILITY A. Land Development Unit 1. The Department's Land Development Unit shall. review all subdivisions of land and apply fire flow and hydrant spacing requirements in accordance with this regulation and the present zoning of the subdivision or allowed land use as approved by the County's Regional Planning Commission or city planning department. B. Fire Prevention Engineering Section 1. The Department's Fire Prevention Engineering Section shall review building plans and apply fire flow and hydrant spacing requirements in accordance with this regulation. CEO llI. 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. 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. 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. (DUnlexes) NOTE: FOR SINGLE FAMILY DWELLINGS OVER 5,000 SQUARE FEET. SEE, TABLE I 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 laud), the required fire flow shall be: 5,000 GPM 31 5 hrs. 300 ft. NOTE: REDUCTION IN FIRE FLOW IN ACCORDANCE WITH TABLE 1. b. Land development projects consisting of lots having existing structures shall be in compliance with Table 1 (fire flow per building size). This standard applies to multiple family dwellings, hotels, high rise, commercial, industrial, etc. NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL PRESSURE. 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. Single family dwellings - Fire Zone 3 (Less than 5,000 square feet) Duration Public Hydrant Fire Flow of Flow S acin 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 32 C. Duration Fire Flow of Flow c. Two family dwellings — VHFHSZ (Less than 5,000 square feet) Duplexes 2. Mobile Home Park a. Recreation Buildings 1,500 GPM 2 hrs Public Hydrant Spacing 600 ft. Refer to Table 1 for fire flow according to building size. b. Mobile Home Park 1,250 GPM 2 hrs 600 ft. 3. Multiple residential, apartments, single family residences (greater than 5,000 square feet), private schools, hotels, high rise, commercial, industrial, etc. (R -1, E, B, A, I, H, F, M, S) (see Table 1). Public fire hydrant requirements 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. 33 (2) Non -Urban Properties (less than one unit per acre): No portion of a structure should be placed on a lot where it exceeds 750' via vehicular access from a properly spaced public hydrant that meets the required fire flow. c. All occupancies Other than single family dwellings, such as commercial, industrial, multi- family dwellings, private schools, institutions, detached condominiums (five or more units), etc. Fire hydrant spacing shall be 300 feet. NOTE:The following guidelines shall be used in meeting the hydrant spacing requirements. (1) No portion of lot frontage shall be more than 200 feet via vehicular access from a public hydrant. (2) No portion of a building should exceed 400 feet via vehicular access from a properly spaced public hydrant. d. Supplemental fire protection When a structure cannot meet the required public hydrant spacing distances, supplemental fire protection shall be required. NOTE: Supplemental fire protection is not limited to the installation of on -site fire hydrants; it may include automatic extinguishing systems. 3. Hydrant location requirements - both sides of a street Hydrants shall be required on both sides of the street whenever: a. Streets having raised median center dividers that make access to hydrants difficult, causes time delay, and /or creates undue hazard. b. For situations other than those listed in "a" above, the Department's inspector's judgment shall be used. The following items shall be considered when determining hydrant locations: (1) Excessive traffic loads, major arterial route, in which traffic would be difficult to detour. 34 (2) Lack of adjacent parallel public streets in which traffic could be redirected (e.g., Pacific Coast Highway). (3) Past practices in the area. (4) Possibility of future development in the area. (5) Type of development (i.e., flag -lot units, large apartment or condo complex, etc.). (6) Accessibility to existing hydrants (7) Possibility of the existing street having a raised median center divider in the near future. D. On -Site Hydrant Requirements 1. When any portion of a proposed structure exceeds (via vehicular access) the allowable distances from a public hydrant and on -site hydrants are required, the following spacing requirements shall be met: a. Spacing distance between on -site hydrants shall be 300 to 600 feet. (1) Design features shall assist in allowing distance modifications. b. Factors considered when allowing distance modifications. (1) Only sprinklered buildings qualify for the maximum spacing of 600 feet. (2) For non - sprinklered buildings, consideration should be given to fire protection, access doors, outside storage, etc. Distance between hydrants should not exceed 400 feet. 2. Fire flow a. All on -site fire hydrants shall flow a minimum of 1,250 gallons per minute at 20 psi for a duration of two hours. If more than one on -site fire hydrant is required, the on -site fire flow shall be at least 2,500 gallons per minute at 20 psi, flowing from two hydrants simultaneously. On site flow may be greater depending upon the size of the structure and the distance from public hydrants. 35 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 planted within three feet of a fire hydrant. E. Public Hydrant Flow Procedure The minimum acceptable flow from any existine public hydrant shall be 1,000 41 GPM unless the required fire flow is less. Hydrants used to satisfy fire flow requirements will be determined by the following items: Only hydrants that meet spacing requirements are acceptable for meeting fire flow requirements. 2. In order to meet the required fire flow: a. Flow closest hydrant and calculate to determine flow at 20 pounds per square inch residual pressure. If the calculated flow does not meet the fire flow requirement, the next closest hydrant shall be flowed simultaneously with the first hydrant, providing it meets the spacing requirement, etc. b. If more than one hydrant is to be flowed in order to meet the required fire flow, the number of hydrants shall be flowed as follows: One hydrant Two hydrants Three hydrants F. Hydrant Upgrade Policy 1,250 GPM and below 1,251— 3,500 GPM flowing simultaneously 3,501— 5,000 GPM flowing simultaneously 1. Existing single outlet 2 1/2" inch hydrants shall be upgraded to a double outlet 6" x 4" x 2 1/2 hydrant when the required fire flow exceeds 1,250 GPM. 2. An upgrade of the fire hydrant will not be required if the required fire flow is between the minimum requirement of 750 gallons per minute, up to and including 1,250 gallons per minute, and the existing public water system will provide the required fire flow through an existing wharf fire hydrant. 3. All new required fire hydrant installations shall be approved 6" x 4" x 2 1/2" fire hydrants. 4. When water main improvements are required to meet GPM flow, and the existing water main has single outlet 2 1/2" fire hydrant(s), 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. 37 6. Approved fire hydrant barricades shall be installed if curbs are not provided (see Figures 1, 2, and 3 following on pages 11 and 12). G. Hydrant Specifications All required public and on -site fire hydrants shall be installed to the following specifications prior to flow test and acceptance of the system. 1. Hydrants shall be: a. Installed so that the center fine of the lowest outlet is between 14 and 24 inches above finished grade b. Installed so that the front of the riser is between 12 and 24 inches behind the curb face C. Installed with outlets facing the curb at a 45- degree angle to the curb line if there are double outlet hydrants d. Similar to the type of construction which conforms to current A.W.W.A. Standards e. Provided with three -foot unobstructed clearance on all sides. f Provided with approved plastic caps g. Painted with two coats of red primer and one coat of traffic signal yellow for public hydrants and one coat of red for on -site hydrants, with the exception of the stems and threads 2. Underground shut -off valves are to be located: a. A minimum distance of 10 feet from the hydrant b. A maximum distance of 25 feet from the hydrant Exception: Location can be less than 10 feet when the water main is already installed and the 10 -foot minimum distance cannot be satisfied. 3. All new water mains, laterals, gate valves, buries, and riser shall be a minimum of six inches inside diameter. 4. When sidewalks are contiguous with a curb and are five feet wide or less, fire hydrants shall be placed immediately behind the sidewalk. Under no circumstances shall hydrants be more than six feet from a curb line. M 5. The owner - developer shall be responsible for making the necessary arrangements with the local water purveyor for the installation of all public facilities. 6. Approved fire hydrant barricades shall be installed if curbs are not provided (see Figures 1, 2, and 3 following on pages 11 and 12). Barricade /Clearance Details CO NCRETE CAR b RA OT M U SCHEDULE AP 8MW STER, S E NOTE 41 A' ON, ?1, I 1�0 Figure 1 1 s PLAN FIRE HYDRANT BARRICADES (TYPICAL) M Figure 2 Figure 3 Notes: O O 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 fie 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. 40 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: 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 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. 41 TABLE I * BUILDING SIZE (First floor area) Fire Flow *(1) (2) Duration Hydrant Spacing 1,000 GPM 2 hrs. Under 3,000 sq. ft. 300 ft. sq. ft. 3,000 to 4,999 sq. ft. 1,250 GPM 2 hrs. 300 ft. sq. ft. 5,000 to 7,999 sq. ft. 1,500 GPM 2 hrs. 300 ft. 8,000 to 9,999 2,000 GPM 2 hrs. 300 ft. 10,000 to 14,999 2,500 GPM 2 hrs. 300 ft. 15,000 to 19,999 sq. ft. 3,000 GPM 3 hrs. 300 ft. sq. ft. 20,000 to 24,999 sq. ft. 3,500 GPM 3 hrs. 300 ft. sq. ft. 25,000 to 29,999 sq. ft. 4,000 GPM 4 hrs. 300 ft. 30,000 to 34,999 4,500 GPM 4 hrs. 300 ft. 35,000 or more 5,000 GPM 5 hrs. 300 ft. * See applicable footnotes below: (FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL PRESSURE) (1) Conditions requiring additional fire flow. a. Each story above ground level - add 500 GPM per story. b. Any exposure within 50 feet - add a total of 500 GPM. C. Any high -rise building (as determined by the jurisdictional building code) the fire flow shall be a minimum of 3,500 GPM for 3 hours at 20 psi. d. Any flow may be increased up to 1,000 GPM for a hazardous occupancy. (2) Reductions in fire flow shall be cumulative for type of construction and a fully sprinklered building. The following allowances and /or additions may be made to standard fire flow requirements: a. A 25% reduction shall be granted for the following types of construction: Type I- F.R, Type II -F.R., Type II one -hour, .Type II -N, Type III one -hour; Type III -N, Type IV, Type IV one hour, and Type V one -hour. This reduction shall be 42 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. 43 EXHIBIT E SMMC ARTICLE 9 (PLANNING AND ZONING) 44 EXHIBIT F HOTEL CONDITIONS TO DISPENSE ALCOHOL In the Hotel rooms, Hotel common areas, Second Floor Bar, Rooftop food service/bar area, Wine Storage/Tasting Room, and Meeting /Banquet Rooms A, B, and C, Developer or a hotel/business operator may sell or furnish alcoholic beverages for consumption on the following terms and conditions without obtaining a Conditional Use Permit. This approval is for Type 47 (On Sale General -- Eating Place), Type 70 (On -Sale General Restrictive Service), Type 42 (On Sale Beer & Wine - Public Premises), Type 58 (Caterer's Permit), Type 48 (On Sale General — Public Premises), Type 66 (Controlled Access Cabinet) and Type 68 (Portable Bar) alcohol licenses only. 2. Seating and Floor Areas. Seating and floor areas in which alcohol is served shall not exceed the following: • Hotel minibars and room service • Hotel common area, including the lobby, hotel entry plaza, second floor podium and the rooftop deck area; • Second Floor Bar: 14 seats, 6 bar seats and 1,027 square feet; • Rooftop food service/bar area: 24 interior seats and 354 square feet and 20 exterior seats and 673 square feet. • PI Level Wine Storage/Tasting Room: 20 seats and 415 square feet; • Meeting/Banquet Room A: 3,950 square feet; Meeting/Banquet Room B: 2,208 square feet; and Meeting/Banquet Room C: 1,283 square feet (collectively the "Meeting/Banquet Rooms "). Meeting /Banquet Room A and Meeting /Banquet Room B contain removable partitions and may be combined for up to 6,158 square feet. 3. The seating configurations for each of the alcohol serving areas as shown on the Project Plans shall not be altered so as to increase occupancy of those areas. The Meeting /Banquet Rooms may be rearranged as appropriate for special events or conferences. 4. Hours a. First and Second Floor Common Area. Hotel employees may sell or furnish alcoholic beverages for consumption within the first floor and second floor common area of the hotel premises, including the lobby, to hotel guests and their invitees between the hours of: • Sunday through Thursday: 11:00 AM to 12:00 AM (midnight), interior common areas 11:00 AM to' 11:00 PM, outdoor common areas • Friday and Saturday: 45 11:00 AM to 1:00 AM (next day), interior common areas 11:00 AM to 12:00 AM (midnight), outdoor common areas Alcoholic beverage purchases pursuant to this Section 4a shall be charged to guest's room bill or by method of payment permissible by the State's Department of Alcoholic Beverage Control for a Type 70 alcohol license. b. Second Floor Bar. The permitted hours of alcohol consumption shall be from 11:00 AM to 2:00 AM (next day). Alcohol may only be served within interior areas of the bar. C. Wine Storage /Tasting Room. The permitted hours of alcohol consumption shall be from 6:00 AM to 2:00 AM (next day) d. Rooftop. The permitted hours of alcohol consumption shall be from: Sunday through Thursday: 11:00 AM to 11:00 PM Friday and Saturday 11:00 AM to 12:00 AM (Midnight) e. Meeting/Banquet Rooms. The permitted hours of alcohol consumption in the Meeting/Banquet rooms shall be 6:00 AM to 2:00 AM (next day). Notwithstanding the foregoing, alcohol service is only permitted within the Meeting/Banquet Rooms provided these rooms at the time alcohol is served are being used in the manner other similar hotels normally and customarily use such spaces. This Exhibit does not authorize alcohol service in the Meeting/Banquet Rooms unless associated with activities normally and customarily occurring in similar hotels. Such uses include, but are not limited to, meetings, conferences, lectures, training or instructional classes, conventions, demonstrations, competitions, speeches, services, presentations, celebrations, contests, fundraisers, commemorations, reunions, performances, auctions, ceremonies, parties, banquets, receptions, and other analogous events or activities occurring in comparable hotel meeting and banquet facilities. 5. Hotel Rooms. a. Mini- bars /refrigerators shall be permitted in individual hotel rooms, subject to the terms and conditions in this Exhibit "F" in addition to the following conditions if they will contain alcoholic beverages: 1. Restocking of the mini - bars /refrigerators shall be performed in the course of scheduled room service activities, but shall not be performed between the hours of 2:00 am and 6:00 am; and 2. Alcohol shall be stored only within approved liquor cabinets, which shall be accessible through key access or other controls restricting availability only to registered guests 21 years of age or older. b. Room service of alcoholic beverages for consumption in guest rooms or adjoining private outdoor space is permitted to hotel guests 21 years of age or older who 46 provide proof of age if requested by room service personnel and subject to the terns and conditions in this Exhibit "F ". c. With respect to the mini - bars /refrigerators in individual hotel rooms described in subsection (a) of this Section 5 and room service of alcoholic beverages as provided in subsection (b) of this Section 5, the Developer shall not be obligated to obtain any additional Discretionary Approvals from the City, including without limitation any Conditional Use Permits, so long as they are operated within the scope of this Agreement. 6. Minor amendments to the Hotel seating and floor area where alcohol is served as shown on the Project Plans shall be subject to approval by the Director of Planning in accordance with Section 2.4.2 (Minor Modifications). A significant change in the approved concept for Hotel alcohol service areas or any increase in the square footage or in the number of seats shall require either a Conditional Use Permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). Construction shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board, or Director of Planning. No expansion in number of seats of any alcohol serving area, intensity of operation of any alcohol serving area, or outdoor alcohol serving areas shall occur without prior approval from the City of Santa Monica and State ABC (if required by the ABC). Concurrently with filing an application to the State ABC for one or more alcohol licenses, the applicant shall provide a copy of this signed Exhibit "F" to the local office of the State Alcoholic Beverage Control Department. The operation of the hotel, including the common areas, Rooftop, Second Floor Bar and Wine Storage /Tasting Room, and Meeting /Banquet Rooms, 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. No alcoholic beverage shall be sold for consumption beyond the hotel premises unless in a Retail Use which has an approved Conditional Use Permit. 10. No more than 35% of total gross revenues per year shall be from alcohol sales. The 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 State ABC upon request. 11. The primary use of the hotel shall be for Hotel Use. Alcohol may be available to registered guests and their visitors, persons attending private functions Meeting /Banquet Rooms, and patrons of the Second Floor Bar, Rooftop dining areas, Wine Storage /Tasting Room and Restaurants in accordance with Exhibits "G ", "H" and "I ". 12. Live, non - amplified, acoustical music shall be permitted in the Second Floor Bar, Wine Storage /Tasting Room, and hotel indoor common areas provided there is no dancing or dance floor and there is no cover charge or minimum drink purchase requirement. No 47 dancing or live entertainment is permitted in any of the Hotel outdoor areas. Live amplified music, disc jockey, or recorded music shall be permitted in the Meeting/Banquet Rooms for events with alcohol service similar to events occurring in other similar hotels with meeting and banquet rooms; and dancing shall also be permitted in these rooms when associated with such an event and only within the Meeting/Banquet Rooms. 13. No outside promoter shall be permitted to rent or lease the hotel. No event held at the hotel shall be advertised under another name. All private parties shall be operated through the hotel. 14. Except for special events and on the rooftop (or in the area of the pool deck), alcohol shall not be served in any disposable container such as disposable plastic or paper cups. 15. Any portable bars shall only be, located and used in the Meeting/Banquet Rooms associated with special events and shall be permitted on the pool deck. 16. The hotel operator shall prohibit loitering and control noisy guests leaving the hotel. 17. Except in guest rooms and the Meeting/Banquet Rooms for events, no video or other , amusement games shall be permitted in any area where alcohol is sold unless such games are authorized by a Conditional Use Permit. 18. Except in the Second Floor Bar and Wine Storage/Tasting Room, any minimum purchase requirement may be satisfied by the purchase of beverages or food. 19. The hotel shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). 20. The hotel shall not conduct recycling deposits, pressure washing, or other noise generating activity audible from the exterior of the buildings between the hours of 11 PM and 7 AM. 21. Window or other signage visible from the public right -of -way that advertises beer or alcohol shall not be permitted. 22. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service as applicable, a security plan shall be submitted to the Chief of Policy for review of approval. The plan shall address both physical and operational security issues. 23. Prior to the commencement of alcohol service, the hotel operator, restaurant operator or business operator, as applicable, shall participate in the Santa Monica Alcohol Awareness for Retailers Training (S.M.A.A.R.T) program conducted by the Santa Monica Police Department. IH 24. The Developer authorizes reasonable City inspection of the Property to ensure compliance with the conditions set forth in this Exhibit' P" and will bear the reasonable costs of these inspections as established by SMMC Section 2.72.010 and Resolution No. 9905 (CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with this Section. 25. Prior to exercising the rights of this Exhibit "P ", the applicant shall post a notice at the hotel entry stating that the Property is regulated by a Development Agreement and the Development Agreement, which includes the hotel's alcohol related conditions of approval, is available upon request. This notice shall remain posted at all time the hotel is in operation. 26. The hotel operator shall employ staff to patrol the licensed premises to ensure patrons of the hotel are not disruptive to adjoining properties and area residents. Acknowledgement of Hotel Operator I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to dispense alcoholic beverages. Print Name and Title Date Signature 49 EXHIBIT G RESTAURANT "A" (FINE DINING) CONDITIONS TO DISPENSE ALCOHOL Within the Restaurant located on the ground floor of the Landmark Building and designated as "Restaurant `A "' on the Project Plans, Developer or a business operator may dispense for sale or other consideration, alcoholic beverages, including beer, wine, malt beverages, and distilled spirits for on -site consumption, on the following terms and conditions: 1. This approval is for a Type 47 (On Sale General -- Eating Place) alcohol license only. Any request to modify the license type shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). 2. Seating arrangements for sit -down patrons in Restaurant A shall not exceed 121 interior seats and 14 exterior seats. The permitted hours of alcohol consumption in Restaurant A shall be: Sunday through Wednesday 11:00 AM to 12:00 AM (next day), interior dining area 11:00 AM to 11:00 PM, outdoor dining area Thursday through Saturday 11:00 AM to 1:00 AM (next day), interior dining area 11:00 AM to 12:00 AM (midnight), outdoor dining area Complete closure and all employees shall vacate the tenant space one hour after regular business closure.. No "after hours" operations shall be permitted. 4. Alcoholic beverage orders shall cease 30 minutes prior to closure of Restaurant A, or no later than the closing of the associated food service of the restaurant, whichever is first. 5. Prior to issuance of a final inspection or a business license for Restaurant A, the restaurant operator shall post a notice at the entry stating that the site is regulated by a Development Agreement and the Development Agreement, which includes the restaurant's conditions of approval is available upon request. This notice shall remain posted at all times the establishment is in operation. 6. Concurrently with filing an application with the State ABC, the restaurant operator shall provide a copy of this signed Exhibit "G" to the local office of the State Alcoholic Beverage Control Department. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service in Restaurant A as applicable, the operator shall submit a plan for approval by the City's Planning Director regarding employee alcohol awareness training 50 programs and policies. The plan shall outline a mandatory alcohol awareness training program for all employees having contact with the public and shall state management's policies addressing alcohol consumption and inebriation. The program shall require all employees having contact with the public to complete a California Department of Alcoholic Beverage Control (ABC) sponsored alcohol awareness training program within 90 days of the effective date of the approval by the Planning Director of the plan. In the case of new employees, the employee shall attend the alcohol awareness training within 90 days of hiring. In the event the ABC no longer sponsors an alcohol awareness training program, all employees having contact with the public shall complete an alternative program approved by the Planning Director. The operator shall provide the City with an annual report regarding compliance with this condition. This project shall be subject to any future City -wide alcohol awareness training program condition affecting similar establishments. 8. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service in Restaurant A as applicable, the operator shall also 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 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 more than one alcoholic beverage. 9. In the event Restaurant A operator fails to comply with any conditions of approval of this Exhibit, no further permits, licenses, approvals or certificates of occupancy for Restaurant A shall be issued to such applicant until such violation has been fully remedied. 10. Minor amendments to Restaurant A as shown on the Project Plans shall be subject to approval by the Director of Planning in accordance with Section 2.4.2 (Minor Modifications). A significant change in the approved concept for Restaurant A or any increase in the square footage of Restaurant A or in the number of seats in Restaurant A shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). Construction shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board, or Director of Planning. No expansion in number of seats of any alcohol serving area, intensity of operation of any alcohol serving area, or outdoor alcohol serving areas shall occur without prior approval from the City of Santa Monica and State ABC (if required by the ABC). 11. Restaurant A 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. 12. No alcoholic beverage shall be sold for consumption beyond Restaurant A premises. Notwithstanding the foregoing, if Restaurant A offers room service of meals to the hotel rooms as part of its regular operations, then alcoholic beverages maybe sold for consumption in guest rooms or adjoining private outdoor space to hotel guests 21 years of age or older who provide proof of age if requested by room service personnel. 51 13. Except for special events, alcohol shall not be served in Restaurant A in any disposable container such as disposable plastic or paper cups. 14. No more than 35% of total gross revenues per year of Restaurant A shall be from alcohol sales. The operator of Restaurant A shall maintain records of gross revenue sources which shall be submitted annually to the City's Planning Division at the beginning of each calendar year after the first year of operation and also available to the City and the State ABC upon request. 15. The primary use of Restaurant A shall be for sit -down meal service to patrons. Alcohol shall not be served to persons except those intending to purchase meals. 16. Restaurant A shall maintain a kitchen or food - serving area in which a variety of food is prepared and cooked onsite. 17. Restaurant A shall serve food to patrons during all hours the establishment is open for customers. 18. Any minimum purchase requirement may be satisfied by the purchase of beverages or food. 19. Take out service (not including room service) shall be only incidental to the primary sit - down use. 20. No dancing or live entertainment beyond in that allowed in the definition of "Restaurant" contained in SMMC Section 9.04.02.030.730 shall be permitted in Restaurant A. 21. No video or other amusement games shall be permitted in Restaurant A. 22. Restaurant A operator shall prohibit loitering in the restaurant area and shall control noisy patrons leaving the restaurant. 23. Window or other signage on or in Restaurant A visible from the public right -of -way that advertises beer or alcohol shall not be permitted. 24. The operator of Restaurant A is on notice that all temporary signage is subject to the restrictions of the City's sign ordinance included in Exhibit "E" SMCC Article 9 (Planning and Zoning) to this Agreement. 25. Restaurant A shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). 26. Restaurant A shall not conduct recycling deposits, pressure washing or other noise generating activity audible from the Property between the hours of I IPM and 7AM. 52 27. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service in Restaurant A, as applicable, a security plan shall be submitted to the Chief of Police for review and approval. The plan shall address both physical and operational security issues. 28. Prior to commencement of alcohol service in Restaurant A, the restaurant operator shall participate in the Santa Monica Alcohol Awareness for Retailers Training (S.M.A.A.R.T.) program conducted by the Santa Monica Policy Department. 29. Restaurant A operator authorizes reasonable City inspection of Restaurant A to ensure compliance with the conditions set forth in this Exhibit "G." and will bear the reasonable cost of these inspections as established by SMMC Section 2.72.0 10 and Resolution No. 9905 (CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with this Exhibit. Acknowledgement of Restaurant Operator I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to dispense alcoholic beverages. Print Name and Title Date Signature 53 EXHIBIT H RESTAURANT `El" (24 -HOUR CAM CONDITIONS TO DISPENSE ALCOHOL Within the Restaurant located on the ground floor of the Landmark Building Addition and designated as "Restaurant `El' " on the Project Plans, Developer or a business operator may dispense for sale or other consideration, alcoholic beverages, including beer, wine, malt beverages, and distilled spirits for on -site consumption, on the following terms and conditions: This approval is for a Type 47 (On Sale General -- Eating Place) alcohol license only. Any request to modify the license type shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). 2. Seating arrangements for sit -down patrons in Restaurant E 1 shall not exceed 103 interior seats and 14 exterior seats. Restaurant El may be operated 24 hours a day but the permitted hours of alcohol consumption in Restaurant El shall be: • Sunday through Wednesday 11:00 AM to 12:00 AM (midnight), interior dining area 11:00 AM to 11:00 PM, outdoor dining area • Thursday through Saturday 11:00 AM to 1:00 AM (next day), interior dining area 11:00 AM to 12:00 AM (midnight), outdoor dining area 4. Prior to issuance of a final inspection or a business license for Restaurant El, the restaurant operator shall post a notice at the entry stating that the site is regulated by a Development Agreement and the Development Agreement, which includes the restaurant's conditions of approval is available upon request. This notice shall remain posted at all times the establishment is in operation. 5. Concurrently with filing an application with the State ABC, the restaurant operator shall provide a copy of this signed Exhibit "H" to the local office of the State Alcoholic Beverage Control Department. 6. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service in Restaurant El as applicable, the operator shall submit a plan for approval by the City's Planning Director regarding employee alcohol awareness training programs and policies. The plan shall outline a mandatory alcohol awareness training program for all employees having contact with the public and shall state management's policies addressing alcohol consumption and inebriation. The program shall require all employees having contact with the public to complete a California Department of Alcoholic Beverage Control (ABC) sponsored alcohol awareness training program within 54 90 days of the effective date of the approval by the Planning Director of the plan. In the case of new employees, the employee shall attend the alcohol awareness training within 90 days of hiring. In the event the ABC no longer sponsors an alcohol awareness training program, all employees having contact with the public shall complete an alternative program approved by the Planning Director. The operator shall provide the City with an annual report regarding compliance with this condition. This project shall be subject to any future City -wide alcohol awareness training program condition affecting similar establishments. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service in Restaurant El as applicable, the operator shall also 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 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 more than one alcoholic beverage. 8. In the event Restaurant El operator fails to comply with any conditions of approval of this Exhibit, no further permits, licenses, approvals or certificates of occupancy for Restaurant El shall be issued to such applicant until such violation has been fully remedied. Minor amendments to Restaurant El as shown on the Project Plans shall be subject to approval by the Director of Planning in accordance with Section 2.4.2 (Minor Modifications). A significant change in the approved concept for Restaurant El or any increase in the square footage of Restaurant El or in the number of seats in Restaurant El shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). Construction shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board, or Director of Planning. No expansion in number of seats of any alcohol serving area, intensity of operation of any alcohol serving area, or outdoor alcohol serving areas shall occur without prior approval from the City of Santa Monica and State ABC (if required by the ABC). 10. Restaurant El 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. 11. No alcoholic beverage shall be sold for consumption beyond Restaurant El premises. Notwithstanding the foregoing, if Restaurant El offers room service of meals to the hotel rooms as part of its regular operations, then alcoholic beverages may be sold for consumption in guest rooms or adjoining private outdoor space to hotel guests 21 years of age or older who provide proof of age if requested by room service personnel. 12. Except for special events, alcohol shall not be served in Restaurant El in any disposable container such as disposable plastic or paper cups. 55 13. No more than 35% of total gross revenues per year of Restaurant El shall be from alcohol sales. The operator of Restaurant El shall maintain records of gross revenue sources which shall be submitted annually to the City's Planning Division at the beginning of each calendar year after the first year of operation and also available to the City and the State ABC upon request. 14. The primary use of Restaurant El shall be for sit -down meal service to patrons. Alcohol shall not be served to persons except those intending to purchase meals. 15. Restaurant El shall maintain a kitchen or food - serving area in which a variety of food is prepared and cooked onsite. 16. Restaurant El shall serve food to patrons during all hours the establishment is open for customers. 17. Any minimum purchase requirement may be satisfied by the purchase of beverages or food. 18. Take out service (not including room service) shall be only incidental to the primary sit - down use. 19. No dancing or live entertainment beyond in that allowed in the definition of "Restaurant" contained in SMMC Section 9.04.02.030.730 shall be permitted in Restaurant El. 20. No video or other amusement games shall be permitted in Restaurant El. 21. Restaurant El operator shall prohibit loitering in the restaurant area and shall control noisy patrons leaving the restaurant. 22. Window or other signage on or in Restaurant El visible from the public right -of -way that advertises beer or alcohol shall not be permitted. 23. The operator of Restaurant El is on notice that all temporary signage is subject to the restrictions of the City's sign ordinance included in Exhibit "E" SMCC Article 9 (Planning and Zoning) to this Agreement. 24. Restaurant El shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). 25. Restaurant El shall not conduct recycling deposits, pressure washing or other noise generating activity audible from the Property between the hours of I IPM and 7AM. 26. Prior to issuance of a Certificate of Occupancy, or a business license, or commencement of alcohol service in Restaurant El, as applicable, a security plan shall be submitted to 56 the Chief of Police for review and approval. The plan shall address both physical and operational security issues. 27. Prior to commencement of alcohol service in Restaurant El, the restaurant operator shall participate in the Santa Monica Alcohol Awareness for Retailers Training (S.M.A.A.R.T.) program conducted by the Santa Monica Policy Department. 28. Restaurant El operator authorizes reasonable City inspection of Restaurant E to ensure compliance with the conditions set forth in this Exhibit "H" and will bear the reasonable cost of these inspections as established by SMMC Section 2.72.0 10 and Resolution No. 9905 (CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with this Exhibit. Acknowledeement of Restaurant Operator I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to dispense alcoholic beverages. Name and Title Date Signature 57 EXHIBIT I STANDARD RESTAURANT CONDITIONS TO DISPENSE ALCOHOL The DA provides flexibility for Retail and Restaurant uses to be shifted, up to 9,730 square feet of Restaurant Use in the Project. In the event a Restaurant is commenced in any area otherwise designated as a Retail Use on the Project Plans, the Restaurant business operator may dispense for sale or other consideration, alcoholic beverages, including beer, wine, malt beverages, and distilled spirits, on the following terms and conditions: 1. This approval is for a Type 47 (On Sale General -- Eating Place) alcohol license only. Any request to modify the license type shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). 2. 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. 3. 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. 4. Window or other signage visible from the public right -of -way that advertises the Restaurant's beer or alcohol shall not be permitted. 5. 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. 6. The Restaurant shall maintain a kitchen or food - serving area in which a variety of food is prepared and cooked on the premises. 7. Take out service from the Restaurant shall be only incidental to the primary sit -down use. 8. No alcoholic beverage shall be sold for consumption beyond the Restaurant premises. 9. Except for special events, alcohol shall not be served by the Restaurant in any disposable containers such as disposable plastic or paper cups. 10. No video or other amusement games shall be permitted in the Restaurant. 11. 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. 12. Any minimum purchase requirement may be satisfied by the purchase of beverages or food. 0 13. 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. 14. 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. 15. The permitted hours of alcohol consumption in Restaurant shall be: Sunday through Thursday 11:00 AM to 12:00 AM (next day), interior dining area 11:00 AM to 11:00 PM, outdoor dining area Friday and Saturday 11:00 AM to 1 :00 AM (next day), interior dining area 11:00 AM to 12:00 AM (midnight), outdoor dining area Complete closure and all employees shall vacate the tenant space one hour after regular business closure. No "after hours" operations shall be permitted. 16. 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 each calendar year after the first year of operation and also available to the City and the California Department of State Alcoholic Beverage Control ( "ABC ") upon request. 17. Prior to final inspection for 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. 18. Prior to final inspection for occupancy of the Restaurant, the Restaurant operator shall submit a plan for approval by the Planning Director regarding its employee alcohol awareness training programs and policies. The plan shall outline a mandatory alcohol- awareness training program for all Restaurant employees having contact with the public and shall state management's policies addressing alcohol consumption and inebriation. The program shall require all Restaurant employees having contact with the public to complete an ABC - sponsored alcohol awareness training program within ninety days of the effective date of the exemption determination. In the case of new Restaurant . employees, the employee shall attend the alcohol awareness training within ninety days of hiring. In the event the ABC no longer sponsors an alcohol awareness training program, all Restaurant employees having contact with the public shall complete an alternative program approved by the Planning Director. The Restaurant operator shall provide the City with an annual report regarding compliance with this requirement. The Restaurant operator shall be subject to any future citywide alcohol awareness training program affecting similar establishments. 59 19. Concurrently with filing an application with the State ABC, the Restaurant applicant shall provide a copy of this signed Exhibit "I" to the local office of the State ABC. 20. Prior to final inspection for occupancy of the Restaurant, 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. Acknowledgement of Restaurant Operator I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to dispense alcoholic beverages. Print Name and Title Date Signature W EXHIBIT J -1 LOCAL HIRING PROGRAM FOR CONSTRUCTION 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. The goal of this policy is local hiring. 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. C. 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. 61 3. Definitions. a. "Contract" means a contract or other agreement for the providing of any combination of labor, materials, supplies, and equipment to the construction of the Project that will result in On -Site Jobs, directly or indirectly, either pursuant to the terms of such contract or other agreement or through one or more subcontracts. b. "Contractor" means a prime contractor, a sub - contractor, or any other entity that enters into a Contract with Developer for any portion or component of the work necessary to construct the Project (excluding architectural, design and other "soft" components of the construction of the Project). C. "Low Income Individual" means a resident of the City of Santa Monica whose household income is no greater than 80% of the Median Income. d. "Median Income" means the median income for the Los Angeles Metropolitan Statistical Area, as published from time to time by the City in connection with its Affordable Housing Production Program pursuant to SMMC section 9.56. e. "On -Site Jobs" means all jobs by a Contractor under a Contract for which at least fifty percent (50 %) of the work hours for such job requires the employee to be at the Project site, regardless of whether such job is in the nature of an employee or an independent contractor. On -Site Jobs shall not include jobs at the Project site which will be performed by the Contractor's established work crew who have not been hired specifically to work at the Project site. 4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit "J -1," the Local Hiring Policy provides that the Targeted Job Applicants shall be considered for each On -Site Job in the following order of priority: a. First Priority: Low Income Individuals living within one mile of the Project; b. Second Priority: Low Income Individuals living in census tracts throughout the City for which 51% or more of the households have an income that is no greater than 80% of the Median Income; G. Third Priority: Low Income Individuals living in the City, other than the first priority and second priority Low Income Individuals; and A Fourth Priority: City residents other than the first priority, second priority, and third priority City residents. 5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs related to the construction of the Project, by Developer and its Contractors. 6. Outreach. So that Targeted Job Applicants are made aware of the availability of On -Site Jobs, Developer or its Contractors shall advertise available On -Site Jobs in the Santa Monica Daily Press or similar local newspaper. In addition, Developer shall provide 62 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. 63 EXHIBIT J -2 LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT Local Hiring Policy For Permanent Employment. The Developer (if an Operator) or Hotel/Restaurant Operator shall implement a local hiring policy (the "Local Hiring Policy "), consistent with the following guidelines: 1. Purpose. The purpose of the Local Hiring Policy is to facilitate the employment by the Hotel and Restaurant tenants of 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 employment opportunities and have a fair opportunity to apply and compete for such jobs. The goal of this policy is local hiring. 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 jobs, this local hiring policy will facilitate job opportunities to City residents which would expand the City's employment base and reduce the impacts on the environment caused by long commuting times to jobs outside the area. 3. Definitions. a. "Low Income Individual" means a resident of the City of Santa Monica whose household income is no greater than 80% of the Median Income. 64 b. "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 on the Project site within the Hotel or Restaurant uses (Restaurants greater than 1,500 gross square feet), regardless of whether such job is in the nature of an employee or an independent contractor. d. "Operator" means the Hotel or Restaurant operators on the Project site. 4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit "J -2," the Local Hiring Policy provides that the Targeted Job Applicants shall be considered for each On -Site Job in the following order of priority: a. First Priority: Low Income Individuals living within one mile of the Project; b. Second Priority: Low Income Individuals living in the City, other than the first priority Low Income Individuals; and C. Third Priority: City residents other than the first priority and second priority City residents. For purposes of this Local Hiring Policy, the employer is authorized to rely on the most recent year's income tax records (W -2) and proof of residency (e.g. driver's license, utility bill, voter registration) if voluntarily submitted by a prospective job applicant for purposes of assessing a Targeted Job Applicant's place of residence and income. 5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs. Notwithstanding the foregoing, the Local Hiring Policy shall not apply to temporary employees utilized while a permanent employee is temporarily absent or while a replacement is being actively sought for a recently - departed permanent employee. Furthermore, the Local Hiring Policy shall not preclude the re- hiring of a prior employee or the transfer of an existing employee from another location. 6. Recruitment.. a. Advanced Local Recruitment - Initial Hiring for New Business. So that Targeted Job Applicants are made aware of the availability of On -Site Jobs, at least 30 days before recruitment ( "Advanced Recruitment Period ") is opened up to general circulation for the initial hiring by a new business, Operator shall advertise available On -Site Jobs in the Santa Monica Daily Press or similar local media and electronically on a City- sponsored website, if such a resource exists. In addition, Developer shall consult with and provide written notice to at least two of the following: i. Local first source hiring programs ii. Trade unions iii. Apprenticeship programs at local colleges iv. Other non - profit organizations involved in referring eligible applicants for job opportunities 65 b. Advanced Local Recruitment - Subsequent Hiring. For subsequent employment opportunities, the Advanced Recruitment Period for Targeted Job Applicants can be reduced to at least 7 days before recruitment is opened up to general circulation. Alternatively, the Developer or Hotel/Restaurant Operator may also use an established list of potential Targeted Job Applicants of not more than one year old. C. Obligations After Completion of Advanced Recruitment Period. Once these advanced local recruitment obligations have been met, Developer or Hotel/Restaurant Operator are not precluded from advertising regionally or nationally for employees. Hiring. Developer or Hotel/Restaurant Operator 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 be make good faith efforts to hire Targeted Job Applicants when such Applicants are most qualified or equally qualified as other applicants. The City acknowledges that the Developer or Hotel/Restaurant Operator 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. 8. Outreach. The Hotel Operator shall designate a "First- Source Hiring Coordinator" (FHC) that shall manage all aspects of the Local Hiring Policy. The FHC shall be responsible for actively encouraging and making available information on first- source hiring to all commercial tenants of the Project. The FHC shall contact new employers on the Project site to inform them of the available resources on first- source hiring and to offer a means by which they can participate in the Hotel's program. In addition to implementation of the Local Hiring Policy, the FHC can have other work duties unrelated to the Local Hiring Policy. 9. Collective Bargaining Agreement. The provisions of this Local Hiring Policy may be pre - empted, in full or in part, in a bona fide collective bargaining agreement, but only if and to the extent the pre - emption is clear and unambiguous. 10. Term. The Local Hiring Policy shall apply for the life of the Project. M EXHIBIT K CONSTRUCTION MITIGATION PLAN Construction Period Mitigation 1. A construction period mitigation plan shall be prepared by the applicant for approval by the Public Works Director 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; C. 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; 1. Describe construction - period security measures including any fencing, lighting, and security personnel; m. Provide a grading and drainage plan; n. Provide a construction - period parking plan which shall minimize use of public streets for parking; o. List a designated on -site construction manager; P. Provide a construction materials recycling plan which seeks to maximize the reuse /recycling of construction waste; q. Provide a plan regarding use of recycled and low - environmental- impact materials in building construction; and 67 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 SCAQIv1D Rule 403 Handbook: a. 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. b. 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. C. 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. d. 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. e. 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: a. Diesel- powered equipment such as booster pumps or generators should be replaced by electric equipment to the extent feasible; and b. The operation of heavy -duty construction equipment shall be limited to no more than 5 pieces of equipment at one time. Noise Attenuation 4. All diesel equipment shall be operated with closed engine doors and shall be equipped with factory - recommended mufflers. M 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. Lnmediately after commencing dirt removal from the site, the general contractor shall provide the City of Santa Monica with written certification that all trucks leaving the site are covered in accordance with this condition of approval. 9. During demolition, excavation, and construction, this project shall comply with SCAQMD Rule 403 to minimize fugitive dust and associated particulate emission, including but not limited to the following: • All material excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering shall occur at least three times daily with complete coverage, preferably at the start of the day, in the late morning, and after work is done for the day. • All grading, earth moving, or excavation activities shall cease during periods of high winds (i.e., greater than 20 mph measured as instantaneous wind gusts) so as to prevent excessive amounts of dust. • All material transported on and off -site shall be securely covered to prevent excessive amounts of dust. • Soils stockpiles shall be covered. • Onsite vehicle speeds shall be limited to 15 mph. • Wheel washers shall be installed where vehicles enter and exit the construction site onto paved roads or wash off trucks and any equipment leaving the site each trip. • An appointed construction relations officer shall act as a community liaison concerning onsite construction activity including resolution of issues related to 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. M, 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 PM10 generation. 17. Streets shall be swept at the end of the day using SCAQMD Rule 1186 certified street sweepers or roadway washing trucks if visible soil is carried onto adjacent public paved roads (recommend water sweepers with reclaimed water). 18. All active portions the construction site shall be sufficiently watered three times a day to prevent excessive amounts of dust. 19. Developer shall prepare a notice, subject to the review by the Director of Planning and Community Development, that lists all construction mitigation requirements, permitted hours of construction, and identifies a contact person at City Hall as well as the developer who will respond to complaints related to the proposed construction. The notice shall be mailed to property owners and residents within a 200 -foot radius from the subject site at least five (5) days prior to the start of construction. 20. A sign shall be posted on the property in a manner consistent with the public hearing sign requirements which shall identify the address and phone number of the owner and /or applicant for the purposes of responding to questions and complaints during the construction period. Said sign shall also indicate the hours of permissible construction work. 21. A copy of these conditions shall be posted in an easily visible and accessible location at all times during construction at the project site. The pages shall be laminated or otherwise protected to ensure durability of the copy. 70 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. 71 EXHIBIT L ASSIGNMENT AND ASSUMPTION AGREEMENT Recording Requested By and When Recorded Mail To: Hardin Larmore Kutcher & Kozal, LLP 1250 6` Street, Suite 200 Santa Monica, CA 90401 Attn: Kenneth L. Kutcher ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made and entered into by and between MAXSER & COMPANY, LLC, a California limited liability company ( "Assignor "), and ( "Assignee "). RECITALS A. The City of Santa Monica ( "City ") and Assignor entered into that certain Development Agreement dated 2012 (the "Development Agreement "), with respect to the real property located in the City of Santa Monica, State of California, and 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 for the Project Site (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 any other Project Approvals with respect to the Project Site. Assignee hereby accepts such assignment from Assignor. 2. Assumption. Assignee expressly assumes and agrees to keep, perform, and fulfill all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled by Assignor under the Development Agreement and the Project Approvals with respect to the Project Site. 72 3. Effective Date. The execution by City of the attached receipt for this Agreement shall be considered as conclusive proof of delivery of this Agreement and of the assignment and assumption contained herein. This Agreement shall be effective upon its recordation in the Official Records of Los Angeles County, California, provided that Assignee has closed the purchase and sale transaction and acquired legal title to the Project Site. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below. "ASSIGNOR" MAXSER & COMPANY, LLC a California limited liability company C "ASSIGNEE" In 73 RECEIPT BY CITY The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the City of Santa Monica on this day of CITY OF SANTA MONICA By: Planning Director 74 Approved and adopted this 10th day of April, 2012. RichaLJ Bloom, Mayor State of California ) County of Los Angeles .) ss. City of Santa Monica ) I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Ordinance No. 2395 (CCS) had its introduction on March 20, 2012, and was adopted at the Santa Monica City Council meeting held on April 10, 2012, by the following vote: Ayes: Council members: Holbrook, , O'Connor, Mayor Pro Tern Davis, Mayor Bloom Noes: Council members: O'Day, Shriver Absent: Council members: McKeown A summary of Ordinance No. 2395 (CCS) was duly published pursuant to California Government Code Section 40806. ATTEST: Maria M. Stewart, City Jerk