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sr-061612-7c10 AMM City of .City Council Report Santa Monica' June 210, 2012. City Council Meeting: Agenda Item: To: Mayor and City Council From: David Martin, Director of Planning and Community Development Subject: NMS Properties, Inc. Proposes Development Agreement 11DEV006 to Add Commercial and Residential Floor Area to an Existing Mixed -Use Building at 1447 Lincoln Boulevard Recommended Action Staff recommends the City Council: 1. Introduce for first reading an ordinance adopting Development Agreement 11 DEV006. Executive Summary The applicant, NMS Properties, Inc., proposes to add 5,960 square feet of ground floor commercial and residential floor area and one affordable one - bedroom unit on the fifth floor of a previously approved five -story, 97 -unit mixed -use building that is currently under construction in the C4 Highway Commercial district. The existing project was originally approved through an Administrative Approval (AA) as a 100% affordable housing project. The applicant seeks to expand and enhance the ground floor commercial space and provide an additional affordable housing unit. As a result of the Interim Zoning Ordinance, the proposed changes to the approved original project must be made through a Development Agreement with the provision of certain community benefits. Given the limited scope and size of the project modifications, the level of community and project benefits proposed for this project is less than that obtained from projects involving complete site redevelopment. The site is located in the Mixed Use Boulevard land use designation and Downtown District of the recently adopted Land Use and Circulation Element (LUCE) of the General Plan. As proposed, the overall project integrating the previously approved building with the proposed additions is designed to meet all Zoning Code development standards except the maximum FAR requirements. The applicant is proposing commercial and residential additions that will result in an overall project FAR of 2.06, 1 which exceeds the maximum 1.8 FAR allowed by Code, but is consistent with the LUCE land use designation which allows a 2.75 FAR. The community benefits that have been negotiated as part of the Development Agreement include the following: • A Transportation Demand Management (TDM) plan with measures applicable to both the commercial and residential components of the project. (This plan was not a requirement of the previous administratively approved project). • A monetary traffic impact fee contribution. • A project design that incorporates an enhanced courtyard area for public access and passive use. • One additional very-low income residential unit on -site. The following issues should be considered by the City Council in its review of the proposed project: • Whether the proposed design and site plan are appropriate and compatible with the neighborhood and the subject site. • Whether the proposed plan and proposed community benefits are consistent with the objective, goals, general land uses, and programs specified in the general plan. Background The subject property is located on the northeast corner of Lincoln Boulevard and Broadway on a 22,500 square foot lot in the C4 (Highway Commercial) zoning district. A five -story mixed -use building containing 97 residential units (12 SRO units, 83 one - bedroom units, 2 two - bedroom units), 7,000 square feet of ground floor commercial space, and three levels of subterranean parking is currently under construction on the subject property. A three -story commercial building is located adjacent to the north of the subject property, and one and two -story commercial buildings are located across Lincoln Boulevard to the west. A one -story commercial building is located across Broadway to the south, and a five -story mixed -use building is located across Lincoln Court alley to the east. 2 Project site — 1447 Lincoln Boulevard On April 19, 2007, the applicant submitted an Administrative Approval application (07AA -007) for a five -story, mixed -use project with 97 affordable housing units and ground floor commercial space. On April 24, 2007, the Council adopted an interim ordinance that required any development exceeding 50 residential units to be processed through a discretionary Development Review permit. The applicant challenged the interim ordinance, claiming that affordable housing projects should not be included among the class of large multifamily residential projects required to obtain a discretionary permit, and asserting an entitlement to have its Administrative Approval application processed administratively under the rules in effect before adoption of the interim ordinance. In January 2009, the applicant and City entered into a Settlement Agreement, which provided that if the applicant pursued a revised mixed -use project and the City modified the effective date of the interim ordinance so that the revised 3 project application could be processed administratively, the applicant would dismiss its lawsuits challenging the interim ordinance. All litigation against the interim ordinance was dismissed with prejudice in March 2007, after approval of the interim ordinance modification. A community meeting was held in May 2008 to introduce the revised mixed use project to property owners and tenants in the neighborhood and solicit feedback on the project. On March 9, 2009, the AA application (07AA -007) for a five -story, mixed -use project with 7,000 square feet of ground floor commercial space, 95 single room occupancy (SRO) units, 2 one - bedroom units, and three levels of subterranean parking at 1447 Lincoln Boulevard was approved. The project was approved as a 100% affordable housing project with a total project floor area ratio (FAR) of 1.8 — the maximum allowable FAR pursuant to the Zoning Ordinance for 100% affordable housing projects located in the C4 Highway Commercial zone. Construction of the project commenced in November 2010. On November 11, 2011, an amended AA was approved to allow the conversion of some of the SRO units to one and two - bedroom units without increasing the project FAR. The amended AA maintained the 97 total units, but resulted in a mix of 12 SRO units, 83 one - bedroom units, and 2 two- bedroom units. The building is currently under construction. 1447 Lincoln Blvd - previously- approved mixed -use project currently under construction. The applicant now seeks to expand and enhance the ground floor commercial space. With the adoption of the LUCE in July 2010 subsequent to the approval of the subject building, the approved 55 -foot high building would be categorized as a Tier 3 project that is eligible for a maximum FAR of 2.75. Under a Development Agreement, the project is subject to the maximum height and FAR established by the LUCE. On March 11, 2011, Ordinance 2356 established interim zoning procedures pending implementation of the LUCE went into effect and prohibited Tier 2 or Tier 3 projects or projects over 32 feet in height within the Downtown Core, unless developed pursuant to a Development Agreement. The subject Development Agreement application was subsequently filed by the applicant for the proposed commercial and residential addition to the previously approved mixed -use project. On March 21, 2012, the Planning Commission reviewed the proposed Development Agreement and recommended that the City Council approve the Development Agreement with several modifications. Due to the limited size of the proposed additions to the previously approved project, an initial DA float -up process before the Planning Commission and City Council was not conducted. 5 Development Agreement Overview A Development Agreement is a contract between the City and a developer that authorizes the type and amount of development that may occur within a specific period of time. Development Agreements typically provide developers with guaranteed development rights in exchange for public benefits. A Development Agreement must comply with the General Plan but can establish different development standards than provided by zoning regulations. Discussion Project Description In addition to the 1447 Lincoln project, the applicant is proposing commercial and residential additions to an existing five -story mixed -use building at 829 Broadway, which is immediately east of the subject site and also concurrently being reviewed through a separate Development Agreement application. These two projects are distinct projects that are functionally independent. Review and approval of one project is not contingent on approval of the other. The applicant has provided elevation drawings and renderings showing the 829 Broadway project in relation to the proposed project at 1447 Lincoln Boulevard for contextual purposes. 1447 Lincoln Boulevard Adjacent proposed project at 829 Broadway N The project under construction at the subject site was administratively - approved for a five -story mixed -use building with 7,000 square feet of ground floor commercial area. The commercial areas are located along the Lincoln Boulevard and Broadway street frontages with an open plaza at the street corner and a central courtyard located behind the commercial areas. I BROADWAY 1447 Lincoln Boulevard —previously approved ground floor plan Pursuant to the proposed DA, 4,190 square feet of commercial floor area would be added to the rear of the retail space located along Lincoln Boulevard. In addition, 1,770 square feet of residential and residential accessory floor area would be added on the ground floor behind the commercial areas and within a new one - bedroom unit on the fifth floor. The ground floor additions would result in the reduction of the central outdoor courtyard. However, a new second floor outdoor courtyard would be constructed on the 7 roof of the new commercial addition maintaining passive outdoor recreation space for the project residents. O m i3 J BROADWAY 1447 Lincoln Blvd — proposed ground floor additions. 8� U � J The additional ground floor commercial floor area would more than double the depth and size of the commercial tenant space along Lincoln Boulevard improving the viability of the space and enhancing opportunities to attract commercial uses that would forward the LUCE vision of encouraging vibrant, diverse, and attractive pedestrian - friendly 0 boulevards that support local- serving retail spaces in this district. The improved viability of the expanded commercial space would also be consistent with the LUCE policy of seeking to ensure that mixed -use developments have active ground floor uses that face the boulevard. The residential floor area expansion would provide an additional affordable housing unit along with increased leasing office and residential accessory space. These residential and commercial additions further support the LUCE policies of providing residential uses in mixed -use projects and balancing a broad mix of uses that creates dynamic activity in both the daytime and evening hours including retail and high - density residential uses in the Downtown and improve these opportunities. 8 BROADWAY 1447 Lincoln Blvd — proposed 5 "' floor addition of one unit. o� The additional floor area would result in an overall project FAR of 2.06, within the LUCE FAR limit of 2.75, but above the Zoning Ordinance maximum allowable FAR of 1.8 for P the site. The additional parking required by the new floor area and residential unit will be provided within the 148 code - compliant parking spaces that would be provided within the three levels of subterranean parking. The originally proposed project design for the AA was of a contemporary design utilizing a mild color palette including various shades of yellow, white, and brown. A system of folded exterior plaster facades created a vertical component to the building while flat plaster panels were used through the remainder of the facades. The proposed design of the ground floor additions will largely not be visible from the exterior of the site and could be eligible for administrative Architectural Review Board approval. The additional floor area would be provided within the area of the interior courtyard, and the additional fifth -floor unit would be located at the northeast corner of the building adjacent to the alley. The loss of the ground floor central courtyard area would be made up on the new second floor courtyard atop the roof of the commercial addition. The outdoor entry plaza area at the street corner would not be affected by the proposed additions. The proposed project would enhance the ground floor commercial space along Lincoln Boulevard and provide an additional residential unit with minimal exterior modifications and would not affect the previously- approved overall project design. Proposed Development Agreement City staff began the Development Agreement negotiation process with the applicant and worked to reach agreement on most of the provisions of the proposed DA, included as Attachment C. The following is a summary of the contents: Article 1 Definitions Defines key terms contained in the Development Agreement Article 2 Description of the Project Describes the project components including vested rights, building design, height, parking, permitted uses, development standards, community benefits, 10 Community Benefits The applicant and City staff have agreed on the following community benefits: Enhanced Open Space A pedestrian plaza and walkway at the southwest corner of the building has been provided for pedestrian access and passive use. The open area provides landscaped 11 and transportation demand management. Article 3 Construction Discusses construction mitigation and permitted hours. Article 4 Project Fees, Exactions, Sets forth requirements of the project in terms of fees Mitigation Measures and and exactions and project conditions. Conditions Article 5 Effect of Agreement on Sets forth the laws and regulations governing the City Laws and proposed project. Regulations Article 6 Architectural Review Sets forth the requirements for Architectural Review Board Board approval of the project. Article 7 City Technical Permits Describes the requirement of the City in processing building permit and other technical permit applications needed for the construction of the project. Article 8 Amendment and Sets forth the conditions under which the Agreement Modification may be modified. Article 9 Term Sets forth the term of the Agreement. Article 10 Periodic Review of Sets forth the requirements for the periodic review of Compliance the Agreement with respect to compliance with its provisions. Article 11 Default Outlines the circumstances, cure, and consequences of a breach of the Agreement by either party. Article 12 Mortgages Sets forth the rights of a lender on the property. Article 13 Transfers and Ensures that the Agreement remains in effect upon Assignments the transfer and /or assignment of property. Article 14 Indemnity to City Outlines the Developer and City rights and obligations in the event of a claim for damages. Article 15 General Provisions A list of provisions common to all Agreements. Community Benefits The applicant and City staff have agreed on the following community benefits: Enhanced Open Space A pedestrian plaza and walkway at the southwest corner of the building has been provided for pedestrian access and passive use. The open area provides landscaped 11 planters and tables and chairs for outdoor seating that are not exclusive to any particular commercial tenant. Transportation Demand Management (TDM) Plan A TDM Plan, which was not a requirement of the previous administratively approved project, has been proposed with the following elements: • AVR Requirement: An Average Vehicle Ridership (AVR) of 1.75 by the second year after issuance of Certificate of Occupancy for the project. • Transportation Information Center: The information center will include information for employees, visitors, and tenants about local public transit services, bicycle and walking information, and automobile rental facilities. • TDM Website Information: A website with access to transportation information noted above will be available. • On -Site Information Program: At least once each calendar year, an informational meeting will be held at the project site for tenants, employees, and other occupants to discuss transportation alternatives. • Unbundled Parking: All parking spaces will be leased to residential and employee tenants separately from the respective leases. • Publically Accessible Bicycle Racks: Bicycle racks for a minimum of 20 bicycles for patrons of the ground floor commercial uses. • Residential Tenant Bicycle Racks: Secure bike storage for a minimum of 138 bicycles. • Residential Tenant Bicycle Repair Station: A bike repair station containing a reasonable assortment of tools necessary for bike repair and maintenance. • Employee Bicycle Storage: Minimum of four secure bike storage spaces for commercial employees. • Employee Shower and Locker Facility: Minimum of one unisex shower and locker facility for commercial employees. • Transportation Management Association (TMA): The developer will be required to participate in a TMA if a TMA is formed by the City for an area that includes the project site. • Vehicle Sharing Technologies: A minimum of two "flex- cars" will be made available to occupants of the project. 12 • Bicycle Sharing Area: An area in a visible and accessible location will be provided for a future bicycle sharing program station instituted by the City or another operator. • Shared Parking: The project will be subject to a shared parking program whereby commercial visitors and residential guests will have access to and utilize the same parking spaces. The developer may make any unused on -site parking available for monthly lease at market rates to third parties in the surrounding area in need of parking if demonstrated by a written report by a traffic and engineering firm that the parking spaces leased to third parties are not needed to meet peak parking demand. Traffic Impact Fee On or before the issuance of a building permit for the project, the developer will make a $144,042 traffic impact fee contribution to the City. (This is consistent with the Planning Commission recommendation discussed below.) Affordable Housing The additional one - bedroom unit being provided on site will be deed - restricted for a very -low income household. Given the limited scope and size of the project, the level of community and project benefits proposed for this project is less than proposed from projects involving complete site redevelopment. Planning Commission Action On March 21, 2012, the Planning Commission recommended that the City Council approve the Development Agreement with specific project recommendations for the City Council's consideration. With the exception of the recommended requirement of a CUP for certain uses, the applicant has agreed to the following: • Increase the traffic impact fee based on the rates proposed in the Zoning Text Amendment currently under review. 13 • Designate the additional residential unit for a very-low income household • Provide a bicycle repair station with basic tools on site for the use of residents. • Provide information regarding car rental options in the Transportation Information Center. • Prevent tenants who opt out of leasing on -site parking spaces from applying for preferential street parking. Staff supports this recommendation and further recommends that a provision be inserted in the DA that provides no tenants in the project will be allowed to apply for preferential street parking consistent with rules and regulations for the City's Preferential Parking Zone Program in SMMC Chapter 3.08 that may be adopted. As the number of provided parking spaces including guest parking meets the minimum Code requirement and as the parking will be unbundled, Staff believes that no tenant should be allowed to apply for preferential street parking. Staff proposes that the following language be modified to the Unbundled Parking provision [2.6.2(c)(5)] of the DA: "Not less frequently than once each calendar quarter, Developer shall deliver to the City's Transportation Management Office a list of these residential and commercial tenants of the Project who occupy the Project under leases with reduced or no parking spaces. In the event that the City adopts rules or regulations that prohibit preferential street parking permit for residential or commercial tenants who occupy the Project under leases with reduced or no parking spaces, the City shall not accept an application for any preferential street parking permit from a residential or commercial tenant who occupies the Project under leases with reduced or no parking spaces_" • Require a Conditional Use Permit (CUP) for banks, similar financial institutions, and other non - active, non - pedestrian oriented uses on the ground floor along Lincoln Boulevard. Staff supports this recommendation. The applicant has made modifications to the proposed Development Agreement consistent with the Planning Commission's recommendations except for the CUP provision. The Planning Commission stated that active, pedestrian- oriented, neighborhood - serving uses should be located along Lincoln Boulevard to create activity during daytime and evening hours and believed that banks, financial institutions, and similar uses would not be consistent with the LUCE policy of the Downtown District to balance a broad mix of uses that creates dynamic activity in both the daytime and 14 evening hours. Staff concurs with the Planning Commission, and the requirement of a CUP for such uses will ensure that such activity will be maintained along Lincoln Boulevard. Staff proposes the following language be added to the DA: "2.5.1 Conditionally Permitted Uses. Conditionally Permitted Uses shall include all uses that are identified as conditionally permitted uses in the Zoning Ordinance in effect at the time the use is sought to be established. A Conditional Use Permit (CUP) shall also be required for banks, similar financial institutions and other non - active non - pedestrian oriented uses as deemed by the Director of Planning on the ground floor project frontage facing Lincoln Boulevard. Conditionally Permitted Uses may commence operating at the Project upon issuance of a CUP in accordance with the procedures established in the Zoning Ordinance and the issuance of a business license." General Plan Consistency 1447 Lincoln Boulevard is located in the Mixed Use Boulevard land use designation and within the LUCE Downtown District. The LUCE vision for these areas encourages vibrant, diverse, and attractive pedestrian - friendly boulevards that support local- serving retail spaces and a diversity of housing types. The LUCE also seeks to maintain and enhance the Downtown area as the heart of the City and as a thriving, mixed -use urban environment in which people can live, work, be entertained, and be culturally enriched. The Downtown District allows for the broadest mix of uses and activities and seeks to provide a substantial number of new housing units in mixed -use projects. The proposed Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan, in that LUCE Policy B25.11 for Lincoln Boulevard seeks to ensure that mixed -use developments have active ground floor uses that face the boulevard with residential uses located on the upper floors. Consistent with LUCE Policy D7.1 of the 15 Downtown District, the proposed residential and commercial additions to the existing mixed -use project continues to balance a broad mix of uses that creates dynamic activity in both the daytime and evening hours including retail and high- density residential uses in the Downtown. Consistent with Policy D7.2 the project continues to encourage local- serving uses that are an integral part of complete neighborhoods and support an overall trip reduction strategy. Policy D8.1 seeks to locate the primary facades of buildings fronting the street at the property line or back side of the sidewalk; however, to create a lively streetscape with places for people to socialize, a pedestrian plaza with seating areas is provided. The implementation of a Transportation Demand Management (TDM) plan in order to reduce vehicle trips in the area and reduce associated parking demand is consistent with LUCE Circulation Policy T19.2 which calls for the imposition of appropriate TDM requirements for new development. Furthermore, the project is consistent with LUCE overall land use policies by incorporating community benefits including but not limited to a traffic impact fee, vehicle sharing technologies, and a TDM plan that promotes unbundled parking, bicycle facilities, transit information, and participation in a Transportation Management Association (TMA). Alternatives In addition to the recommended action, the City Council could consider the following with respect to the project: 1. Continue discussion for analysis of additional options with agreement from the applicant. 2. Not enter into the Development Agreement which allows the building to be completed as authorized by its Administrative Approval without the provision of the negotiated community benefits. Environmental Analysis The proposed addition of 4,190 square feet of commercial floor area, 1,770 square feet of residential floor area, and one one - bedroom unit to an existing 97 -unit mixed -use building is exempt from the provisions of the California Environmental Quality Act 16 pursuant to CEQA Section 15301(e)(2) — Class 1, which exempts additions to existing structures from CEQA provided the additions will not result in an increase of more than 10,000 square feet. Specifically, the proposed project meets all of the criteria prescribed in Section 15301(e)(2): A. The project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan. B. The area in which the project is located is not environmentally sensitive. Therefore, based on the above, the proposed project is exempt from CEQA pursuant to Section 15301(e)(2). 17 t Financial Impacts & Budget Actions Staff costs for the Development Agreement process are paid from application fees. There is a wide range of public benefits that the developer will be required to provide pursuant to the Development Agreement negotiations. There are no immediate Budget/Financial impacts associated with actions recommended in this report. Prepared by: Tony Kim, Senior Planner Approved: d'avid Martin, Director Planning and Community Development Attachments: Forwarded to Council: Rod Gould City Manager A. Draft Ordinance Adopting Development Agreement 11 DEV006 B. Development Agreement Findings C. Proposed Development Agreement D. Public Notification E. Project Plans and Renderings in ATTACHMENT A Draft Ordinance Adopting Development Agreement 11 DEV006 19 City Council Meeting 5 -22 -12 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA MONICA, A MUNICIPAL CORPORATION AND LINCOLN STUDIOS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY WHEREAS, on June 30, 2011, Lincoln Studios, LLC, a California Limited Liability Company, submitted an application for a development agreement to add 5,960 square feet of ground floor commercial and residential floor area and one affordable one - bedroom unit on the fifth floor of a previously approved five -story, 97 -unit mixed -use affordable housing project, to expand and enhance the ground floor commercial space and provide an additional affordable housing unit; and WHEREAS, this project is an infill housing project exempt from the California Environmental Quality Act pursuant to CEQA Guideline Section 15301(e)(2); and WHEREAS, the development agreement is consistent with the General Plan, as summarized below, and as detailed in the accompanying City Council staff report prepared for this proposed project and the exhibits thereto, incorporated herein by reference, including, but not limited to: The proposed mixed -use project will provide active ground floor uses that face the boulevard with residential uses located on the upper floors. 1 LUCE Policy B25.11 for Lincoln Boulevard. The proposed residential and commercial additions to the existing mixed -use project continues to balance a broad mix of uses that creates dynamic activity in both the daytime and evening hours including retail and high- density residential uses in the Downtown. LUCE Policy D7.1. The Project continues to encourage local- serving uses that are an integral part of complete neighborhoods and support an overall trip reduction strategy. LUCE Policy D7.2. The proposed commercial additions to the existing mixed -use project create a lively streetscape with places for people to socialize, and provides a pedestrian plaza with seating areas. LUCE Policy D8.1. The Project implements a Transportation Demand Management (TDM) Plan to reduce vehicle trips in the area and reduce associated parking demand. LUCE Circulation Policy T19.2. 2 The Project incorporates community benefits, including but not limited to a traffic impact fee, vehicle sharing technologies, and a TDM plan that promotes unbundled parking, bicycle facilities, transit information, and participation in a Transportation Management Association (TMA). 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 Lincoln Studios, LLC, a California limited liability company, 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. 3 SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto, inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall be effective 30 days from its adoption. APPROVED AS TO FORM: A/ M SHA ioN S MOUT IE City Attorney j DEVELOPMENT AGREEMENT (See Attachment C) 01,01 /e1 aF -141:I Til=1kq i9 -i Development Agreement Findings 21 DEVELOPMENT AGREEMENT FINDINGS 1. The proposed Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan, in that LUCE Policy 825.11 for Lincoln Boulevard seeks to ensure that mixed -use developments have active ground floor uses that face the boulevard with residential uses located on the upper floors. Consistent with LUCE Policy D7.1 of the Downtown District, the proposed residential and commercial additions to the existing mixed -use project continues to balance a broad mix of uses that creates dynamic activity in both the daytime and evening hours including retail and high- density residential uses in the Downtown. Consistent with Policy D7.2 the project continues to encourage local- serving uses that are an integral part of complete neighborhoods and support an overall trip reduction strategy. Policy D8.1 seeks to locate the primary facades of buildings fronting the street at the property line or back side of the sidewalk; however, to create a lively streetscape with places for people to socialize, a pedestrian plaza with seating areas is provided. The implementation of a Transportation Demand Management (TDM) plan in order to reduce vehicle trips in the area and reduce associated parking demand is consistent with LUCE Circulation Policy T19.2 which calls for the imposition of appropriate TDM requirements for new development. Furthermore, the project is consistent with LUCE overall land use policies by incorporating community benefits including but not limited to a traffic impact fee, enhanced public open space areas, and a TDM plan that promotes unbundled parking, bicycle facilities, transit information, and participation in a Transportation Management Association (TMA). 2. The proposed Development Agreement is compatible with the uses authorized in the district in which the real property is located, in that the subject property is located in the Highway Commercial (C4) district that permits multi- family dwelling units and commercial uses. The proposed Development Agreement is consistent with LUCE Policy B25.11 for Lincoln Boulevard in that the additional residential and commercial floor area continues to ensure that mixed -use developments have active ground floor uses that face the boulevard with residential uses located on the upper floors. The proposed Development Agreement is also consistent with LUCE Policy D7.1 of the Downtown District in that the additions to the mixed -use project balance a broad mix of uses that creates dynamic activity in both the daytime and evening hours including retail and high- density residential uses in the Downtown. Consistent with Policy D7.2 the project continues to encourage local- serving uses that are an integral part of complete neighborhoods and support an overall trip reduction strategy. A TDM plan 22 incorporated with the project aims to reduce the number car trips and seeks to reduce the overall parking demand and vehicular trips within the area. 3. The proposed Development Agreement is in conformity with the public necessity, public convenience, general welfare, and good land use practices, in that it allows for the addition of an affordable residential unit and the addition of ground floor commercial space to an existing mixed -use project that is compliant with the Land and Use Circulation Element vision for the area. The proposed project will provide a total of 98 affordable residential units and will feature neighborhood serving commercial uses and public benefits including, but not limited to, a traffic impact fee, enhanced public open space areas, and a TDM plan that promotes unbundled parking, bicycle facilities, transit information, and participation in a Transportation Management Association (TMA). 4. The proposed Development Agreement will not be detrimental to the health, safety and general welfare, in that the agreement will allow for the addition of an affordable residential unit and the addition of ground floor commercial space to an existing mixed -use project that is compliant with the Land and Use Circulation Element vision for the area. The proposed project will be located in an urbanized area and is consistent with other similar improvements in the area and does not have the potential to disrupt the urban environment or cause health or safety problems. The proposed project provide an additional affordable residential unit and additional ground floor commercial space that will feature neighborhood serving commercial uses and public benefits including, but not limited to, a traffic impact fee, enhanced public open space areas, and a TDM plan that promotes unbundled parking, bicycle facilities, transit information, and participation in a Transportation Management Association (TMA). 5. The proposed Development Agreement will not adversely affect the orderly development of the property, in that the Development Agreement is contingent upon the review and approval of a specific site plan consistent with tested urban design principles that reflect the goals and policies of the City of Santa Monica which were established through a long range planning process and are reflected in the recently adopted update of the Land Use and Circulation Element of the City's General Plan. 6. The proposed Development Agreement will have a positive fiscal impact on the City, in that the ground floor commercial uses are subject to City business license 23 taxes. The City will incur no cost associated with the implementation of the applicant's Transportation Demand Management plan and the associated community benefit of reduced vehicle trips and parking demand in the area. Furthermore, if the traffic impact fee is exercised, the payment of $144,042 will be required to obtain project approval. For these reasons the project will not have a negative fiscal impact on the City. 24 ATTACHMENT C PROPOSED 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 Recorder's Use No Recording Fee Required California Government Code Section 27383 DEVELOPMENT AGREEMENT BETWEEN CITY OF SANTA MONICA AND LINCOLN STUDIOS, LLC (Regarding Property Located at 1447 Lincoln Blvd.) .2012 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc TABLE OF CONTENTS Recitals............................................................................................................ ............................... l Article1 Definitions ................................................................................ ..............................3 Article 2 Description of the Project ....................................................... ............................... 5 2.1 General Description ................................................................ ............................... 5 2.2 Principal Components of the Project ....................................... ............................... 5 2.3 No Obligation to Develop ....................................................... ............................... 5 2.4 Vested Rights ........................................................................... ..............................6 2.5 Permitted Uses ........................................................................ ............................... 7 2.6 Project and Community Benefits ............................................. ..............................7 2.7 Parking .................................................................................... .............................13 2.8 Design .................................................................................... .............................13 Article3 Construction ............................................................................ .............................13 3.1 Construction Mitigation Plan .................................................. .............................13 3.2 Construction Hours ................................................................. .............................13 3.3 Construction Period ................................................................ .............................14 3.4 Damage and Destruction ......................................................... .............................14 Article 4 Project Fees, Exactions, Mitigation Measures and Conditions ............................14 4.1 Fees, Exactions, Mitigation Measures and Conditions ........... .............................14 4.2 Conditions on Modifications ................................................. ............................... 14 4.3 Implementation of Mitigation Measures and Conditions of Approval ................14 Article 5 Effect of Agreement on City Laws and Regulations .............. .............................15 5.1 Development Standards for the Property; Existing Regulations .........................15 5.2 Permitted Subsequent Code Changes ..................................... .............................16 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe 5.3 Common Set of Existing Regulations ..................................... .............................17 5.4 Conflicting Enactments ..................................................:........ .............................17 5.5 Timing of Development .......................................................... .............................18 Article 6 Architectural Review Board ................................................... .............................18 6.1 Architectural Review Board Approval ................................... .............................18 6.2 [Reserved] .......................................................:....................... .............................18 Article 7 City Technical Permits ............................................................ .............................18 7.1 Definitions ............................................................................... .............................18 7.2 Diligent Action by City ........................................................... .............................19 7.3 Conditions for Diligent Action by the City ............................. .............................19 7.4 . Duration of Technical City Permits ...................................... ............................... 20 7.5 [Reserved] ............................................................................. ............................... 20 Article 8 Amendment and Modification ................................................ .............................20 8.1 Amendment and Modification of Development Agreement ............................... 20 Article9 Term ........................................................................................ .............................21 9.1 Effective Date ....................................................................... ............................... 21 9.2 Term ........................................................................................ .............................21 Article 10 Periodic Review of Compliance ........................................... ............................... 21 10.1 City Review .......................................................................... ............................... 21 10.2 Evidence of Good Faith Compliance .................................... ............................... 21 10.3 Information to be Provided to Developer ............................. ............................... 22 10.4 Notice of Breach; Cure Rights ................................................ .............................22 10.5 Failure of Periodic Review ................................................... ............................... 22 10.6 Termination of Development Agreement ............................. ............................... 22 10.7 City Cost Recovery ................................................................. .............................22 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Article11 Default ..................................................................................... .............................23 11.1 Notice and Cure .................................................................... ............................... 23 11.2 Remedies for Monetary Default ............................................ ............................... 23 11.3 Remedies for Non - Monetary Default ................................... ............................... 24 11.4 Modification or Termination Agreement by City ................... .............................26 11.5 Cessation of Rights and Obligations ..................................... ............................... 27 11.6 Completion of Improvements ............................................... ............................... 27 Article12 Mortgagees .............................................................................. ..................:..........27 12.1 Encumbrances on the Property ............................................. ............................... 27 Article 13 Transfers and Assignments ..................................................... .............................29 13.1 Transfers and Assignments ................................................... ............................... 29 13.2 Release Upon Transfer .......................................................... ............................... 29 Article14 Indemnity to City .................................................................. ............................... 30 14.1 Indemnity .............................................................................. ............................... 30 14.2 City's Right to Defense ......................................................... ............................... 30 Article 15 General Provisions .................................................................. .............................31 15.1 Notices .................................................................................. ............................... 31 15.2 Entire Agreement; Conflicts ................................................. ............................... 32 15.3 Binding Effect ....................................................................... ............................... 32 15.4 Agreement Not for Benefit of Third Parties ......................... ............................... 32 15.5 No Partnership or Joint Venture ........................................... ............................... 32 15.6 Estoppel Certificates ............................................................. :.............................. 32 15.7 Time ........................................................................................ .............................33 15.8 Excusable Delays ................:................................................... .............................33 15.9 Governing Law ..................................................................... ............................... 34 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 15.10 Cooperation in Event of Legal Challenge to Agreement ...... ............................... 34 15.11 Attorneys' Fees ..................................................................... ............................... 34 15.12 Recordation ............................................................................. .............................34 15.13 No Waiver ............................................................................... .............................34 15.14 Construction of this Agreement .............................................. .............................35 15.15 Other Governmental Approvals ............................................ ............................... 35 15.16 Venue ..................................................................................... .............................36 15.17 Exhibits ................................................................................. ............................... 36 15.18 Counterpart Signatures .......................................................... ............................... 37 15.19 Certificate of Performance ...................................................... .............................37 15.20 Interest of Developer ............................................................. ............................... 37 15.21 Operating Memoranda .......................................................... ............................... 37 15.22 Acknowledgments, Agreements and Assurance on the Part of Developer ......... 38 15.23 Not a Public Dedication .......................................................... .............................38 15.24 Other Agreements ................................................................. ............................... 38 15.25 Severability and Termination ................................................ ............................... 38 Exhibit "A" Legal Description of Property Exhibit `B" Project Plans Exhibit "C" Permitted Fees and Exactions Exhibit "D" Mitigation Measures and Conditions Exhibit "E" Zoning Ordinance Exhibit "F" [Reserved] Exhibit "G" [Reserved] Exhibit "H" Santa Monica Sign Code Exhibit "I" Construction Mitigation Plan Exhibit "J" Assignment and Assumption Agreement Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement "), dated for reference purposes , 2012, is entered into by and between LINCOLN STUDIOS, LLC, a California limited liability company ( "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 Section 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 22,500 square feet of land located in the City of Santa Monica, State of California, commonly known as 1447 Lincoln Boulevard, as more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property "). C. The City has included the Property within Mixed -Use Boulevard land use designation, which is also part of the Downtown District land use designation under the City's recently adopted Land Use and Circulation Element of its General Plan (the "LUCE "). The Property is located within the C4 (Highway Commercial District) under the City's Zoning Ordinance. D. On March 9, 2009, the City issued an Administrative Approval Determination pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.04.10.14.050(b) (the "Initial Administrative Approval "), designated by the City as Administrative Approval 07 -007. The Initial Administrative Approval grants Developer the right to develop the Property with an approximately 40,375 square -foot mixed -use project containing 97 affordable residential units (i.e., 100% affordable units comprised of 95 single room occupancy ( "SRO ") units and 2 1- bedroom units, with 85% of the units reserved for moderate - income tenants and 15% of the units reserved for low - income tenants), approximately 7,000 square feet of ground floor retail space, a three - level subterranean parking garage, and related facilities, with an FAR of 1.8 (collectively, the "Original Project "). E. On June 30, 2011, Developer filed an application for a Development Agreement, pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.48.020 (the "Development Application "). The Development Application was designated by the City as Application No. 11 -DEV -006. The Development Application is for the following modifications to the Original Project (the "Project "): (a) 5,960 additional square feet of space in the Building, . consisting of (i) 1,770 square feet of residential uses, including one (1) additional affordable residential unit in the Building (designated as a very low income Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc unit), and (ii) 4,190 additional square feet of ground floor retail space; and (b) certain additional amenities as described below in the description of the public benefits to be provided by Developer in connection with this Agreement, as more fully described in this Agreement. The Project consists of the modification of the Original Project approved by the City in connection with the approval of this Development Agreement. F. When the Project has been constructed, and when considered together with the Original Project, the Property will have then been improved with structures and improvements that include a 46,335 square -foot mixed -use project, containing 98 affordable residential units (i.e., 100% affordable units comprised of 12 SRO units, and 84 one - bedroom units, and 2 two bedroom units, with 85% of the units reserved for moderate- income tenants, 14% of the units reserved for low- income tenants, and I% of the units reserved for very low- income tenants), approximately 11,190 square feet of ground floor retail space, a three -level subterranean parking garage, and related facilities (collectively, the "Integrated Project "). The Integrated Project will contain 98 residential units, 46,355 square feet of space, and will have an FAR of 2.059. G. Interim Ordinance No. 2356 prohibits the issuance of permits for development projects which would constitute a Tier 2 or Tier 3 project as established pursuant to LUCE Chapter 2.1 or which would exceed 32 feet in height in the Downtown Core as delineated in the Land Use Designation Map approved by the City Council on July 6, 2010 unless 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. H. Developer has paid all necessary costs and fees associated with the City's processing of the Development Application and this Agreement. 1. The primary purposes of this Agreement are to permit Developer to construct the Project on the Property and thereby provide the Downtown District with needed affordable housing. 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. J. 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. K. 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 2 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Property in accordance with this Agreement upon the welfare of the region. The Project Will provide a number of public benefits, including without limitation the following: (i) providing 1 additional affordable housing unit, consisting of I very low income unit, and (ii) improving the aesthetics of the Property through the construction of a new, well - designed building and enhanced landscaping. L. The City Council has found that the provisions of this Development Agreement are consistent with the relevant provisions of (1) City's General Plan, including the LUCE and (2) the Zoning Ordinance (defined in Section 1.20 below), including the standards of the C4 zone. M. On March 21, 2012, the City's Planning Commission held a duly noticed public hearing on the Development Application. The Commission determined that the Project is exempt from the provisions of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) pursuant to California Code of Regulations, Title 14, Section 15301(e)(2) - Class 1 that exempts additions to existing structures of less than 10,000 square feet. In addition, the Commission recommended that the City Council approve this Agreement, with certain proposed modifications. N. On May 22, 2012, the City Council held a duly noticed public hearing on the Development Application and at such hearing the City [describe CEQA action] and introduced Ordinance No. for first reading, approving this Agreement. O. On , 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 I DEFINITIONS The terms defined below have the meanings in this Agreement as set forth below unless the context otherwise requires: 1.1 "Affordable Units" means all Very Low Income Units, Low Income Units, and Moderate Income Units in the Project. 1.2 "Agreement" means this Development Agreement entered into between the City and Developer as of the Effective Date. 1.3 "AMI" means the area median income published from time to time by the City's Department of Housing and Economic Development, based on the United States Department of Housing and Urban Development (HUD) estimate of income for a four - person household in for the Los Angeles -Long Beach Primary Metropolitan Statistical Area, as adjusted for the household size of the unit in question. Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 1.4 "ARB" means the City's Architectural Review Board. 1.5 "Building" means the building that exists at the Property on the date of this Agreement, as the same may be renovated, remodeled or otherwise modified in accordance with this Agreement. 1.6 "City Council" means the City Council of the City of Santa Monica, or its designee. 1.7 "City General Plan" or "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. 1.8 "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. 1.9 "Effective Date" has the meaning set forth in Section 9.1 below. 1.10 "Floor Area" has the meaning as defined in Section 9.04.02.030.315 of the Zoning Ordinance. 1.11 "Floor Area Ratio" and FAR" means floor area ratio as defined in Section 9.04.02.030.320 of the Zoning Ordinance. 1.12 "Including" means "including, but not limited to." 1.13 "Legal Action" means any action in law or equity. 1.14 "Low Income Units" mean units set aside for Low Income households, as defined by SMMC, section 9.56.020. 1.15 "Maximum Floor Area" means 46,835 square feet of floor area. 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 "Moderate Income Units" mean units set aside for Moderate Income households, as defined by SMMC, section 9.56.020. 1.18 "Parties" mean both the City and Developer and "Party" means either the City or Developer, as applicable. 4 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 1.19 "Planning Director" means the Planning Director of the City of Santa Monica, or his or her designee. 1.20 "Project Plans" mean the plans for the Project that are attached to this Agreement as Exhibit `B." 1.21 "Very Low Income Units" mean units set aside for Very Low Income households, as defined by SMMC, section 9.56.020. 1.22 "Zoning Ordinance" means the City of Santa Monica Comprehensive Land Use and Zoning Ordinance (Chapter 9.04 of the SMMC), as the same is in effect on the Effective Date, is set forth in its entirety in Exhibit `B" (Planning and Zoning). ARTICLE 2 DESCRIPTION OF THE PROJECT 2.1 General Description. The Project includes all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans. If there is a conflict or inconsistency between the text of this Agreement and the Project Plans, the Project Plans will prevail; provide, however, that omissions from the Project Plans shall not constitute a conflict or inconsistency with the text of this Agreement. 2.2 Principal Components of the Project. The Project consists of the following principal components: (a) 5,960 additional square feet of space in the Building; (b) one (1) additional Very Low Income Unit in the Building; (c) 4,190 additional square feet of ground floor retail space; and (d) certain additional amenities as described below in the description of the public benefits to be provided by Developer in connection with this Agreement. When the Project is completed, the Integrated Project will contain, in the aggregate, 98 residential units, 46,335 square feet of useable space, and will have an FAR of 2.059. The Integrated Project will contain 98 Affordable Units, consisting of 84 Moderate Income Units (comprised of 4 SRO units, 78 one - bedroom units, and 2 one- bedroom units), 13 Low Income Units (comprised of 7 SRO units and 6 one - bedroom units), and 1 Very Low Income Unit (comprised of 1 SRO unit), approximately 11,190 square feet of Floor Area of retail /restaurant use, and one hundred forty -eight (148) required parking spaces (together with 18 additional tandem spaces that are not required by this Agreement) in a two -level subterranean parking garage. The Integrated Project will contain a courtyard that will be a pedestrian oriented amenity to help activate the retail component of the Integrated Project. 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. Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe (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 Projector any portion thereof shall not result in any loss or diminution of development rights, except upon expiration of Developer's vested rights pursuant to this Agreement, or the termination of this Agreement. 2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary, Developer shall be required to implement all 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 or at the Project site. The Project Plans to be maintained by the City and Developer shall be in a half -size set. Further detailed plans for the construction of the Building and improvements, including, without limitation, structural plans and working drawings shall be prepared by Developer subsequent to the Effective Date based upon the Project Plans. 2.4.2 Minor Modifications to Project. Developer with the approval of the Planning Director, may make minor changes to the Project or Project Plans ( "Minor 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) Any change in use not consistent with the permitted uses defined in Section 2.5 below; (b) A reduction in the number of Affordable Units; Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc (c) Any increase in the number of parking spaces shown on the Project Plans by more than ten percent (10 %) above the amount provided for in Section 2.7; or any decrease in the number of parking spaces below 160; (d) Any material change in the number or location of curb cuts shown on the Project Plans; (e) Any increase in Floor Area in the Building that exceeds the Maximum Floor Area; and (f) Any change that would materially reduce the community benefits as set forth in Section 2.6. If a proposed modification does not exceed the Major Modification thresholds established above, then the proposed modification may be reviewed in accordance with Section 2.4.2. 2.4.4 City Consent to Modification. If the City's consent is required for a Minor Modification, the Planning Director shall not unreasonably withhold, condition, or delay its approval of a request for such Minor Modification. The City may impose fees, exactions, 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 ARB approval, in the case of certain Major Modifications. 2.4.5 Ril?ht to Develop. During the Term (as defined in Section 9.2 below) of this Development Agreement, Developer shall have the vested rights (the "Vested Rights ") to (a) develop and construct the Project in accordance with the following: (i) the Project Plans (as the same may be modified from time to time in accordance with this Agreement); (ii) any Minor Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications which are approved pursuant to Section 2.4.3 above; 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 and the Integrated Project for the permitted uses set forth in Section 2.5. Except for any required approvals from the ARB pursuant to Section 6.1 of this Agreement, the City shall have no further discretion over the elements of the Project which have been delineated in the Project Plans (as the same may be modified from time to time in accordance with this Agreement). 2.5 Permitted Uses. The City approves the following permitted uses for the Project and the Integrated Project: (i) multi - family residential occupancy; (ii) ground floor retail or restaurant uses; (iii) outdoor dining; and (iv) any other uses permitted in the C4 zone as of the Effective Date. The City also approves uses that are supportive and ancillary to a retail or other permitted use (excluding residential) ( "ancillary uses "); Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc parking for primary and ancillary uses; and such other uses as may be authorized by the City pursuant to Section 8.1 below. 2.51 Conditionally Permitted Uses. Conditionally Permitted Uses shall include all uses that are identified as conditionally permitted uses in the Zoning Ordinance in effect at the time the use is sought to be established. A Conditional Use Permit (CUP) shall also be required for banks, similar financial institutions, and other non - active, non - pedestrian oriented uses as deemed by the Director of Planning on the ground floor project frontage facing Lincoln Boulevard. Conditionally Permitted Uses may commence operating at the Project upon issuance of a CUP in accordance with the procedures established in the Zoning Ordinance and the issuance of a business license. 2.6 Project and Community Benefits. This Agreement provides assurances that the project and community benefits identified below in this Section 2.6 will be achieved and developed in accordance with the terms of this Agreement. 2.6.1 Project Benefits. Set forth below in this Section 2.6.1 are the Project benefits that will be provided to the City, including without limitation: (i) increasing the supply of affordable housing units in the City through the inclusion of the Affordable Units in the Project; (ii) increased tax revenues; (iii) enhancing the Lincoln Boulevard Mixed Use Boulevard zone with a well- designed mixed -use project; (iv) an activated pedestrian experience from the street level retail use; and (v) widened sidewalks along the entire length of the Lincoln Boulevard property line. 2.6.2 LUCE Community Benefits. Set forth below in this Section 2.6.2 are the additional community benefits that will be provided by the Project. (a) Enhanced Open Space. Developer shall construct the plaza areas and the walkway areas with enhanced landscaping on that portion of the Property identified on the Project Plans as either `Plaza Area' or `Enhanced Walkway Areas' (the "Public Use Areas "). Developer shall at all times daring the term of this Agreement make available in the Public Use Areas the following amenities available to the public: (i) not less than 6 tables; (ii) not less than 24 seats in some combination of chairs and benches; and (iii) not less than 4 umbrellas or other shade producing fixtures. Developer shall make the Public Use Areas accessible to the public from (i) 9:00 a.m. through 5:00 p.m. each day. The public use of the Public Use Areas 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 Areas 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 Areas by the public shall be permitted on the Public Use Areas. Developer shall have the right to impose and enforce reasonable rules and regulations regarding the use of the Public Use Areas by the public subject to the approval by the City which approval shall not be unreasonably withheld. Developer may exclude individuals from the Public Use Areas who do not comply with such rules and regulations. The Public Use Areas will provide the additional community benefit identified in Chapter 2.1 of the LUCE as Community Physical Improvements through quality pedestrian connections. Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12 (b) Prohibited Activities on the Public Use Areas. 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 Areas 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) using sound amplifying equipment; or (v) 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 Areas 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. Should any such persons refuse to leave the Project, they shall be deemed to be trespassing and be subject to arrest in accordance with applicable law. Developer shall be entitled to establish and post rules and regulations for use of the Public Use Areas consistent with the foregoing. Nothing in this Agreement or in the Project Plans shall be deemed to mean that the Public Use Areas are public parks or are subject to legal requirements applicable to a public park or other public space. The Public Use Areas shall remain the private property of Developer with members of the public having only a license to occupy and use the Public Use Areas in a manner consistent with this Section 2. (c) Transportation Demand Management Plan. Other than the provisions set forth below in this Section 2.6.2(c) (the "TDM Plan "), Developer shall not be required to comply with SMMC section 9.16 et seq. (1) AVR Requirements. With respect only to the tenants'of the commercial space in the Integrated Project (and their respective employees) (the "Commercial Occupants "), Developer shall use its commercially reasonable efforts to achieve an average vehicle ridership ( "AVR ") for the Commercial Occupants of at least 1.75 (the "AVR Goal ") by the second year after issuance of the Certificate of Occupancy for the Integrated Project. Chapter 9.16 of the Santa Monica Municipal Code shall govern how the AVR is calculated for the Commercial Occupants. Within six months after the Certificate of Occupancy is issued for the Integrated Project, Developer shall conduct a baseline survey of the AVR for the Integrated Project. Developer shall submit such baseline survey to the City at the time of submittal of the first annual compliance report for this Agreement, following the issuance of the Certificate of Occupancy, unless an alternative submittal date is approved by the Planning Director. Thereafter, the City shall monitor the TDM Plan performance as part of the City's Periodic Review for the Integrated Project. If, during any annual evaluation of the Integrated Project's employee trip reduction plan, the AVR Goal has not been achieved for the Integrated Project, then Developer shall propose modifications to the TDM Plan that Developer considers likely to achieve the AVR Goal by the date of the next annual evaluation of the Integrated Project's employee trip reduction plan. In addition, the City's Planning Director may recommend feasible modifications to the TDM Plan. Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Developer's failure to achieve the AVR Goal shall not constitute a default under this Agreement. (2) Transportation Information Center. Developer (or Developer's successors and assigns) shall provide on -site information for tenants, employees and visitors about (i) local public transit services (including bus lines, light rail lines, bus fare programs, ride share programs, shuttles), (ii) automobile rental facilities near the Property, and (iii) bicycle facilities (including routes, rental and sales locations, on -site bicycle racks and showers for the tenants of the Integrated Project). The public will be allowed to post items on the bulletin board to facilitate the creation of ridesharing relationships among the occupants of the Integrated Project and other members of the community. Developer (or Developer's successors and assigns) shall also provide walking and biking maps for employees and visitors, which shall include but not be limited to information about convenient local services and restaurants within walking distance of the Integrated Project. Developer (or Developer's successors and assigns) shall provide information to tenants and employees of the Integrated Project regarding local rental housing agencies. Such transportation information may be provided through a computer terminal with access to the Internet or, via a website. (3) TDM Website Information. Developer (or Developer's successors and assigns) and tenants shall be required to make available, through a website, transportation information such as the items noted in Section 2.6.2(c)(2) above, including links to local transit providers, local automobile rental facilities, area walking maps, bicycling maps, etc., to inform employees and visitors of available alternative transportation modes to access the Integrated Project site and travel in the area. (4) On Site Information Program. At least once each calendar year, Developer shall hold an informational meeting at the Integrated Project and shall invite all tenants, employees and other occupants of the Integrated Project to attend such meeting. During the informational meeting, Developer shall provide a printed summary of all of the transportation reduction alternatives available to such attendees, including guidance on public transit routes to and from the Integrated Project and coordination of vanpool and carpool formation. (5) Unbundled Parking. Developer shall offer to lease all parking spaces in the Integrated Project to the residential and commercial tenants separately from their respective leases for residential units and leases for the commercial spaces. Such parking spaces shall be leased at market rates established by Developer from time -to -time. All tenants of the Integrated Project may, at their option, enter into leases with limited or no parking spaces as part of their respective leases. All commercial tenants of the Integrated Project may, at their option, enter into leases with reduced employee parking spaces. The number of employee parking spaces may be reduced by as much as fifty percent (50 %) of the code required parking space for the applicable commercial space; provided that the cormercial tenant provides fully subsidized monthly transit passes to the same percentage of employees as the percentage by which the parking spaces are reduced, and such passes are provided for the entire lease period 10 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 510 12.doc during which reduced parking applies. For example, if the number of employee parking spaces is reduced by 25 %, then the commercial tenant shall provide fully subsidized monthly transit passes to 25% of their employees for the entire period. Not less frequently than once each calendar quarter, Developer shall deliver to the City's Transportation Management Office a list of those residential and commercial tenants of the Project who occupy the Project under leases with reduced or no parking spaces. In the event that the City adopts rules or regulations that prohibit preferential street parking permit for residential or commercial tenants who occupy the Project under leases with reduced or no parking spaces, the City shall not accept an application for any preferential street parking permit from a residential or commercial tenant who occupies the Project under leases with reduced or no parking spaces. (6) Shared Parking. In furtherance of the LUCE's shared parking policies, the Integrated Project shall implement the following provisions regarding shared parking spaces. Developer shall cause the 20 residential guest parking spaces provided in the Integrated Project to be shared with commercial visitors at all times during the operation of the commercial or retail space in the Integrated Project, and such spaces shall be shared on a first -come, first- served basis. So long as there are a sufficient number of on -site parking spaces for residents, commercial tenants, and their respective guests and visitors, Developer may lease any unused on -site parking spaces ( "Excess Spaces ") to third parties in the surrounding area in need of parking; provided that such leases are on a monthly basis and at market rental rates established by Developer from time -to -time. Prior to making any Excess Spaces available to third parties, (i) Developer shall obtain a written report by a traffic and parking engineering firm that demonstrates that Excess Spaces are not required to meet the Integrated Project's peal, parking demand, and (ii) Developer shall obtain the Planning Director's approval of such report. Alternatively, Developer may seek City approval for any type of proposed shared parking arrangement in accordance with any City procedure in effect at the time Developer requests approval for a shared parking arrangement. (7) Publically Accessible Bicycle Racks. The Property shall contain bicycle racks for not fewer than 10 bicycles, which racks shall be located as shown on the Project Plans. (8) Residential Tenant Bicycle Racks. The Integrated Project shall contain bicycle racks to accommodate not fewer than 138 bicycles, which racks shall be for the exclusive use of the residential tenants of the Integrated Project. The occupants of each residential unit in the Integrated Project shall have access to at least one bicycle rack, even if such occupants do not lease a parking space pursuant to the unbundled parking element of the TDM Plan set forth above in Section 2.6.2(,)(5). (9) Residential Tenant Bicycle Repair Station. The Integrated Project shall contain a bicycle repair station that includes a reasonable assortment of the tools necessary to perform basic bicycle repair and maintenance. The tools and an air pump, if included, may be securely attached to the repair station with cables or other tamper -proof fasteners. The bicycle repair station shall be for the exclusive use of the residential tenants of the Integrated Project. 11 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12 (10) Commercial Employee Bicycle Lockers. The Project shall contain four (4) bicycle lockers on the first subterranean parking level, which bicycle lockers shall be for the exclusive use of the commercial tenants of the Project, and for their employees. (11) On -Site Showers. Developer shall provide a shower facility for on -site employees who use bicycle or another active means, powered by human propulsion, to transport themselves to work at the Integrated Project. (12) Bicycle Sharing Area. Developer shall provide a reasonable amount of space on the perimeter of the Property, not to exceed six (6) feet in depth and fifteen (15) feet in width, at a visible and accessible location on site which is compatible with the operation of the Integrated Project, for a bicycle sharing program station in conjunction with any bicycle sharing program instituted by the City or another operator. 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. If the City requests that Developer install a bicycle sharing program station, such station may replace the publically accessible bicycle racks required above in Section 2.6.2(c)(7); provided that Developer shall use its commercially reasonable efforts to relocate the publically accessible bicycle racks to another location on the Property. If relocation of the publically accessible bicycle racks on the Property is not feasible, then Developer shall cooperate with the City to install bicycle racks in the portions of the City's public right of way designated by the City. In such case, Developer shall be responsible to purchase and install bicycle racks in the public right of way, in a number equal to the publically accessible bicycle racks that were removed to accommodate the bicycle sharing program station. 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 on or before December 31, 2020. (13) Tenants' Use of Car Sharing Technologies. On or before the date on which the City issues a Certificate of Occupancy for the Integrated Project (and during the entire Term of this Agreement), Developer shall, at its sole cost and expense, implement some method, reasonably acceptable to City, of car sharing technology to encourage tenants at the building to use public transportation to commute to work, while having access to the use of a private car during evening and weekend hours. One such method that City approves and that Developer may employ is an agreement with a company in the business of providing vehicles at hourly rates for the use by all occupants of the Integrated Project. Developer may at its discretion determine the terms and conditions pursuant to which occupants of the Integrated Project may participate in the car sharing program; provided that at all times during the term of this Agreement, occupants of the Integrated Project have access to at least one shared -use car that will be parked at the Property when not in use. Developer shall, at its sole cost and expense, pay all of the costs incurred under the contract with the car share provider, including any membership fees the car share provider may charge for use of the vehicles. The shared -use car shall, when at the Integrated Project, be parked in one of the code- 12 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc required parking spaces. The Developer shall, as a result of this shared car parking space, use one of the residential parking spaces in the Integrated Project for this shared car. (14) Transportation Management Association. Developer shall be required to participate in a Transportation Management Association ( "TMA "), if a TMA is formed by the City for an area that includes the Property. It is the intention of the City to form a TMA for the purpose of providing employees, businesses, visitors and residents of an area with resources to increase the amount of trips taken by transit, walking, bicycling, and ridesharing. Developer shall attend organizational meetings, and make available information to its tenants relative to the services provided by the TMA. (15) Developer's Obligations to Modify the TDM Plan. Developer's failure to achieve the applicable AVR standard will not constitute a breach or default under this Agreement and shall not give rise to the right of the City to terminate this Agreement. However, if Developer fails to timely achieve the AVR Goal, then thereafter Developer shall work cooperatively with the City to revise, add or change elements of the TDM Plan to seek, in good faith, to achieve the AVR Goal; provided that Developer shall only be required to include elements in its TDM Plan that are commercially reasonable, economically practicable, and technologically feasible. (16) Changes to TDM Plan. Any of the modifications to the TDM Plan proposed by Developer (or proposed by the Planning Director and agreed to by the Developer) to help the Integrated Project achieve the AVR Goal shall be subject to the reasonable approval by the City's Planning Director as a Minor Modification. (d) Traffic Impact Fee. In addition to any traffic fees, expenses or costs required to be paid or incurred by Developer under Exhibit C or Exhibit D, on or before the date on which the City issues a Certificate of Occupancy for the Integrated Project, Developer shall pay to the City a traffic impact fee of $144,042 . Notwithstanding the foregoing sentence, Developer shall pay only one $144,042 traffic impact fee, even though this obligation is repeated as Condition of Approval number 4 on Exhibit D. 2.7 Parking. There shall be 148 required parking spaces in the Integrated Project, consisting of 87 standard spaces, 56compact, and 5 disabled spaces. The Integrated Project may also contain up to 18 tandem parking spaces, but such tandem spaces are not required by this Agreement. This Agreement and the Project Plans set forth the exclusive off - street parking requirements for the Integrated 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. 2.8 Desi . (a) Building Height. The maximum height of the Building shall be fifty -five feet (55') and five stories, as set forth on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the building height 13 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc allowed by this Agreement, then the building height allowed by this Agreement shall prevail. (b) Permitted Projections. Projections shall be permitted as reflected on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the projections permitted by this Agreement, then the projections permitted by this Agreement shall prevail. (c) Signag . The location, size, materials, and color of any signage shall be reviewed by the ARB (or the Planning Commission on appeal) in accordance with the procedures set forth in Section 6.1 of this Agreement. All signs on the Property shall be subject to Chapter 9.52 of the SMMC (Santa Monica Sign Code) in effect as of the Effective Date, a copy of which is set forth in its entirety in Exhibit "H ". 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 "H" hereto. 3.2 Construction Hours. Developer shall be permitted to perform construction between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to 5:00 p.m. Saturday; provided that interior construction work which does not generate noise of more than thirty (30) decibels beyond the Property line may also be performed between the hours of 7:00 a.m. to 8:00 a.m. and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding the foregoing, pursuant to SMMC Section 4.12.110(e), Developer has the right to seek a permit from the City authorizing construction activity during the times otherwise prohibited by this Section. The Parties acknowledge and agree that, among other things, afterhours construction permits can be granted for concrete pours. 3.3 Construction Period. Construction of the Project shall be subject to the provisions of SMMC Section 8.08.070. 3.4 Damage or Destruction. If the Project, or any part thereof, is damaged or destroyed during the term of this Agreement, Developer shall be entitled to reconstruct the Project in accordance with this Agreement if: (a) Developer obtains a building permit for this reconstruction prior to the expiration of this Agreement and (b) the Project is found to be consistent with the City's General Plan in effect at the time of obtaining the building permit. 14 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 "I" 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 and Conditions of Approval. 4.3.1 Compliance with Mitigation Measures and Conditions of Approval. 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 of Approval. If Developer proceeds with the construction of the Project, except as otherwise expressly limited in this Agreement, the obligations and requirements imposed by the 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. 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 Integrated Project and shall constitute the Existing Regulations, except as otherwise expressly required by this Agreement. 5. 1.1 Defined Terms. The following terms shall have the meanings set forth below: 15 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc (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 ordinances, rules, regulations, standards, specifications and official policies of the City governing, regulating or affecting the demolition, grading, design, development, building, construction, occupancy or use of buildings and improvements or any exactions therefore, except as amended by this Agreement; and (v) the development standards and procedures in ARTICLE 2 of this Agreement. (b) "Subsequent Code Changes" collectively means all of the following which are adopted or approved subsequent to the Effective Date, whether such adoption or approval is by the City Council, any department, division, office, board, commission or other agency of the City, by the people of the City through charter amendment, referendum, initiative or other ballot measure, or by any other method or procedure: (i) any amendments, revisions, additions or deletions to the Existing Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications and official policies of the City governing or affecting the grading, design; development, construction, occupancy or use of buildings or improvements or any exactions therefor. "Subsequent Code Changes" includes, without limitation, any amendments, revisions or additions to the Existing Regulations imposing or requiring the payment of any fee, special assessment or tax. 5.1.2 Existing Regulations 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 architectural review by the ARB as specified in Section 6.1 and review of modifications to the Project as expressly set forth in Section 2.4.2 and Section 2.4.3 above; (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. 16 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc (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. (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 District or in the Lincoln Boulevard portion of the Mixed Use Boulevard (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. 17 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc (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 (d) above), or (ii) which would materially delay development of the Project or that would cause a material change in the uses of the Project as provided in this Agreement. 5.2.2 New Rules and Regulations. This Agreement shall not be construed to prevent the City from applying new rules, regulations and policies in those circumstances specified in Government Code Section 65866. 5.2.3 State or Federal Laws. In the event that state or federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations; provided that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 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 (1984) 37 Cal.3d 465, 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, 18 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc structures, residential units that can be built each year on the Property except as expressly provided in this Agreement. ARTICLE 6 ARCHITECTURAL REVIEW BOARD 6.1 Architectural Review Board Approval. The Project shall be subject to review and approval or conditional approval by the ARB in accordance with design review procedures in effect under the Existing Regulations. Consistent with Existing Regulations, the ARB cannot require modifications to the building design which negates the fundamental development standards established by this Agreement. For example, the ARB cannot require reduction in the overall height of the buildings, reduction in the number of stories in the buildings, reduction in density, or reduction in floor area greater than two and one -half percent (2.5 %), in the aggregate from the Building. Decisions of the ARB are appealable to the Planning Commission in accordance with the Existing Regulations. 6.2 [Reserved] 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. 19 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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. 7.3.1 Acceptance and Processing of Technical Permit Applications. The obligation of the City to accept and diligently process the Technical Permit Applications which are filed by Developer, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions: (a) Developer sh 'all have completed and filed all Technical Permit Applications which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided that such procedures and policies are uniformly in force and effect throughout the City; (b) Developer shall have paid all processing and permit fees established by the City in connection with the filing and processing of any Technical Permit Application which are in effect on the date when the Technical Permit Application is filed; provided that such fees are uniformly in force and effect throughout the City; and (c) If required for the particular Technical Permit Application, Developer shall have obtained the approval of the ARB referred to in 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 Building; (b) Developer shall have received any permits or approvals from other governmental agencies which are required by law to be issued prior to or concurrent with the issuance of the Technical City Permits for the proposed Building; (c) The proposed Building conforms to the development standards for such Building established in this Agreement. In the event that a proposed Building is not in conformance with the development standards, Developer shall have the right to seek any relief from such standards under the procedures then available in the City; and (d) The proposed Building conform to the Administrative and Technical Construction Codes of the City (Article VIII, Chapter 1 of the Santa Monica Municipal Code) (the "Technical Codes ") in effect on the date that the Technical Permit Application is filed. 20 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc _ 7.3.3 New Technical Requirements. From time to time, the City's Technical Codes are amended to meet new technical requirements related to techniques of building and construction. If the sole means of achieving compliance for the Project with such revisions to the Technical Codes made after the Effective Date ( "New Technical Requirements ") would require an increase from the allowable Building Height established in this Agreement for the Project, then the Planning Director is hereby authorized to grant Developer limited relief from the allowable Building Height without amending this Agreement if the requested relief is in compliance with the City's General Plan. Any such approval shall be granted only after the Planning Director's receipt of a written request for such relief from Developer. Developer is required to supply the Planning Director with written documentation of the fact that compliance with the New Technical Requirements cannot be achieved by some other method. Any such relief shall only be granted to the extent necessary in the Planning Director's determination for Developer to comply with the New Technical Requirements. 7.4 Duration of Technical City Permits. The duration of Technical City Permits issued by the City, and any extensions of the time period during which such Technical City Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. Subject to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall not preclude or impair Developer from subsequently filing another Technical Permit Application for the same matter during the Term of this Agreement, which shall be processed by the City in accordance with the provisions of this ARTICLE 7. 7.5 [Reserved] 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 HUMOVA! 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. 21 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 9.2 Term. 9.2.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue for five (5) 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. 9.2.2 Termination Certificate. Upon termination of this Agreement, the Parties hereto shall execute an appropriate certificate of termination in recordable form (a "Termination Certificate "), which shall be recorded in the official records of Los Angeles County. 9.2.3 Effect of Termination. Except as expressly provided herein (e.g., Section 4.3.2), 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 ARTICLE 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. 22 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 11.2 and Section 11.3, 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 item(s) of non - compliance set forth in a Notice of Default, then the City shall have the right but not the obligation to initiate proceedings for the purpose of terminating this Agreement pursuant to Section 11.4 below. 10.7 City Cost Recovery. Following completion of each Periodic Review, Developer shall reimburse the City for its actual and reasonable costs incurred in connection with such review. ARTICLE 11 DEFAULT 11.1 Notice and Cure. 11.1.1 Breach. If either Party fails to substantially to perform any term, covenant or condition of this Agreement which is required on its part to be performed (a "Breach "), the non - defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non - defaulting Party has first sent a written notice of Breach (a "Notice of Breach "), in the manner required by Section 15. 1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice of Breach to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance with ARTICLE 12. 11.1.2 Monetary Breach. In the case of a monetary Breach by Developer, Developer shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by Developer of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable evidence of the Excusable Delay. 11.1.3 Non - Monetary Breach. In the case of a non - monetary Breach by either Party, the alleged defaulting Party shall promptly commence to cure the 23 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for a non - monetary Breach shall be extended as is reasonably necessary to remedy such Breach; provided that the alleged defaulting Party commences such cure promptly after receiving the Notice of Breach and continuously and diligently pursues such remedy at all times until such Breach is cured. 11.1.4 Excusable Delay. Notwithstanding anything to the contrary contained in this Agreement, the City's exercise of any of its rights or remedies under this Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8 below. 11.2 Remedies for Monetary Default. If there is a Breach by Developer in the performance of any of its monetary obligations under this Agreement which remains uncured (a) thirty (30) business days after receipt by Developer of a Notice of Breach from the City and (b) after expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in accordance with Section 12. 1), then an "Event of Monetary Default" shall have occurred by Developer and the City shall have available any right or remedy provided in this Agreement, at law or in equity. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy. 11.3 Remedies for Non - Monetary Default. 11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from the other Party regarding a non- monetary Breach, and the non - monetary Breach remains uncured: (a) after expiration of all applicable notice and cure periods, and (b) in the case of a Breach by Developer, after the expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in accordance with Section 12. 1), then an "Event of Non - Monetary Default" shall have occurred and the non - defaulting Party shall have available any right or remedy provided in this Agreement, or provided at law or in equity except as prohibited by this Agreement. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy. 11.3.2 Specific Performance. The City and Developer acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance is an appropriate remedy for the enforcement of this Agreement. Therefore, unless otherwise expressly provided herein, the remedy of specific performance shall be available to the non - defaulting party if the other Party causes an Event of Non - Monetary Default to occur. 11.3.3 Writ of Mandate. The City and Developer hereby stipulate that Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance 24 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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. The City and Developer agree that the provisions of this Section 11.3.4 do not apply for damages which: (a) do not arise under this Agreement; (b) are not with respect to any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or (c) do not arise out of or which are not connected to any dispute, controversy, or issue regarding the application, interpretation, or effect of the provisions of this Agreement or the application of any City rules, regulations, or official policies. 11.3.5 Enforcement by the City. The City, at its discretion, shall be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the same may be amended from time to time and shall follow the notice procedures of Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these remedies are applied. 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: 25 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc (a) for any non - monetary default hereunder or; (b) arising out of or connected with any dispute, controversy or issue regarding; (c) the application or interpretation or effect of the provisions of this Agreement. The City and Developer agree that the provisions of this Section 11.3.6 do not apply for damages which: (a) are for a monetary default; or (b) do not arise out of or which are not connected with any dispute, controversy or issue regarding the application, interpretation, or effect of the provisions of this Agreement to or the application of, any City rules, regulations, or official policies. 11.3.7 No Other Limitations. Except as expressly set forth in this Section 11.3, the provisions of this Section 11.3 shall not otherwise limit any other rights, remedies, or causes of action that either the City or Developer may have at law or equity after the occurrence of any Event of Non - Monetary Default. 11.4 Modification or Termination of Agreement by City. 11.4.1 Default by Developer. If Developer causes either an Event of Monetary Default or an Event of Non - Monetary Default, then the City may commence proceedings to modify or terminate this Agreement pursuant to this Section 11.4. 11.4.2 Procedure for Modification or Termination. The procedures for modification or termination of this Agreement by the City for the grounds set forth in Section 11.4.1 are as follows: (a) The City shall provide a written notice to Developer (and to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance of Section 12.1) of its intention to modify or terminate this Agreement unless Developer (or the Secured Lender) cures or corrects the acts or omissions that constitute the basis of such determinations by the City (a "Hearing Notice "). The Hearing Notice shall be delivered by the City to Developer in accordance with Section 15.1 and shall contain the time and place of a public hearing to be held by the City Council on the determination of the City to proceed with modification or termination of this Agreement. The public hearing shall not be held earlier than: (i) thirty -one (3 1) days after delivery of the Hearing Notice to Developer or (ii) if a Secured Lender has delivered a Request for Notice in accordance with Section 12. 1, the day following the expiration of the "Secured Lender Cure Period" (as defined in Section 12.1). (b) If, following the conclusion of the public hearing, the City Council: (i) determines that an Event of Non - Monetary Default has occurred or the 26 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe Developer has not been in good faith compliance with this Agreement pursuant to Section 10. 1, as applicable and (ii) further determines that Developer (or the Secured. Lender, if applicable) has not cured (within the applicable cure periods) the acts or omissions that constitute the basis of the determination under clause (i) above or if those acts or omissions could not be reasonably remedied prior to the public hearing that Developer (or the Secured Lender) has not in good faith commenced to cure or correct such acts or omissions prior to the public hearing or is not diligently and continuously proceeding therewith to completion, then upon making such conclusions, the City Council may modify or terminate this Agreement. The City cannot unilaterally modify the provisions of this Agreement pursuant to this Section 11.4. Any such modification requires the written consent of Developer. If the City Council does not terminate this Agreement, but proposes a modification to this Agreement as a result of the public hearing and Developer does not (within five (5) days of receipt) execute and deliver to the City the form of modification of this Agreement submitted to Developer by the City, then the City Council may elect to terminate this Agreement at any time after the sixth day after Developer's receipt of such proposed modification. 11.5 Cessation of Rights and Obligation s. If this Agreement is terminated by the City pursuant to and in accordance with Section 11.4, the rights, duties and obligations of the Parties under this Agreement shall cease as of the date of such termination, except only for those rights and obligations that expressly survive the termination of this Agreement. In such event, any and all benefits, including money received by the City prior to the date of termination, shall be retained by the City. 11.6 Completion of Improvements. Notwithstanding the provisions of Sections 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Developer has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit issued by the City, then Developer shall have acquired a vested right to complete construction of the Building in accordance with the terms of the building permit and occupy or use each such Building upon completion for the uses permitted for that Building as provided in this Agreement. Any Building completed or occupied pursuant to this Section 11.6 shall be considered legal non - conforming subject to all City ordinances standards and policies as they then exist governing legal non- conforming buildings and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district. ARTICLE 12 MORTGAGEES 12.1 Encumbrances on the Propert y. 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 27 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 of the Property encumbered by the Secured Lender's lien, the City shall send to such Secured Lender a copy of each such Notice of Breach and each such Hearing Notice from the City to Developer. The copy of the Notice of Breach or the Hearing Notice sent to the Secured Lender pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the City. The period within which a Secured Lender may cure a particular Event of Monetary Default or Event of Non - Monetary Default shall not commence until the City has sent to the Secured Lender such copy of the applicable Notice of Breach or Hearing Notice. (b) After a Secured Lender has received a copy of such Notice of Default or Hearing Notice, such Secured Lender shall thereafter have a period of time (in addition to any notice and/or cure period afforded to Developer under this Agreement) equal to: (a) ten (10) business days in the case of any Event of Monetary Default and (b) thirty (30) days in the case of any Event of Non - Monetary Default, during which period the Secured Lender may provide a remedy or cure of the applicable Event of Monetary Default or may provide a remedy or cure of the applicable Event of Non - Monetary Default; provided that if the cure of the Event of Non - Monetary Default cannot reasonably be completed within thirty days, Secured Lender may, within such 30 -day period, commence to cure the same and thereafter diligently prosecute such cure to 28 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 Oblil?ated Under this Agreement. (a) No Secured Lender shall have any obligation or duty under this Agreement to perform the obligations of Developer's or the affirmative covenants of Developer's hereunder or to guarantee such performance unless and until such time as a Secured Lender takes possession or becomes the owner of the estate covered by its Mortgage. If the Secured Lender takes possession or becomes the owner of any portion of the Property, then from and after that date, the Secured Lender shall be obligated to comply with all provisions of this Agreement; provided that the Secured Lender shall not be responsible to the City for any unpaid monetary obligations of Developer that accrued prior to the date the Secured Lender became the fee owner of the Property. (b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City's authority to terminate this Agreement, as against any Secured Lender as well as against Developer if any curable Event of Monetary Default or an Event of Non - Monetary Default is not completely cured within the Secured Lender's Cure Period. ARTICLE 13 TRANSFERS AND ASSIGNMENTS 13.1 Transfers and Assignments. 13.1.1 Not Severable from Ownership Interest in Property. This Agreement shall not be severable from Developer's interest in the Property and any transfer of the Property or any portion thereof shall automatically operate to transfer the benefits and burdens of this Agreement with respect to the transferred Property or transferred portions, as applicable. 29 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 "J" 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 judgments (collectively referred to as "Damages "), including but not limited to claims for damage for personal injury (including death) and claims for property damage arising directly or indirectly from the following: (1) for any act or omission of Developer or those of its officers, board members, agents, employees, volunteers, contractors, subcontractors or other persons acting on its behalf (collectively referred to as the "Developer Parties ") which occurs during the Term and relates to this Agreement; (2) for any act or omission related to the operations of Developer Parties, including but not limited to the maintenance and operation of areas on the Property accessible to the public. Developer's obligation to defend, indemnify and hold harmless applies to all actions and omissions of Developer Parties as described above caused or alleged to have been caused in connection with the Project or Agreement, except to the extent any Damages are caused by the active negligence or willful misconduct of any City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to have been suffered by the City Indemnified Parties regardless of whether or not the City prepared, supplied or approved plans or specifications or both for the Project. 30 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 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: NMS Properties, Inc. 10599 Wilshire Boulevard, Suite 110 Los Angeles, California 90024 Attn: Neil Shekhter Fax: (� 31 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc With a Copy to: Armbruster Goldsmith & Delvac LLP 11611 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attention: Dale Goldsmith, Esq. Fax: (310) 209 -8801 Notice given in any other manner shall be effective when received by the addressee. Any Party may change the addresses for delivery of notices to such Party by delivering notice to the other Party in accordance with this provision. 15.2 Entire A>reement; Conflicts. This Agreement represents the entire agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Existing Regulations, then the provisions of this Agreement shall prevail. Should any of the Conditions of Approval set forth in Section B of Exhibit "D" attached hereto conflict with any of the Mitigation Measures set forth in Section A of Exhibit "D" attached hereto, the more stringent or exacting requirement shall control. 15.3 Bindin Effect. ffect. The Parties intend that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property during the Term for the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of all successors -in- interest to the Parties hereto. Every 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. 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 32 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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: (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 33 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or any permit or approval Developer deems necessary or desirable for the implementation of the Project; (d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement; (e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes; and (f) Failure of the City to timely perform its obligations hereunder, including its obligations under Section 7.2 above 15.8.2 Under no circumstances shall the inability of Developer to secure financing be an Excusable Delay to the obligations of Developer. 15.8.3 In order for an extension of time to be granted for any Excusable Delay, Developer must deliver to the City written notice of the commencement of the Excusable Delay within sixty (60) days after the date on which Developer becomes aware of the existence of the Excusable Delay. The extension of time for an Excusable Delay shall be for the actual period of the delay. 15.8.4 Nothing contained in this Section 15.8 is intended to modify the terms of either Section 5.1.2 or Section 5.5 of this Agreement. 15.9 Governing Law. This Agreement shall be governed exclusively by the provisions hereof and by the laws of the State of California. 15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any court action or other proceeding commenced that includes any challenge to the validity, enforceability or any term or provision of this Agreement, then Developer shall indemnify, hold harmless, pay all costs actually incurred, and provide defense in said action or proceeding, with counsel reasonably satisfactory to both the City and Developer. The City shall cooperate with Developer in any such defense as Developer may reasonably request. 15.11 Attorneys' Fees. If any Party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this Agreement or for specific performance for the Breach of this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include attorneys' 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 34 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 35 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc (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 PartLitigation. 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 15.815.8.1(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 cant' 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 Exhibit "D" Mitigation Measures and Conditions Exhibit `B" Zoning Ordinance 36 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Exhibit "F" [Reserved] Exhibit "G" [Reserved] Exhibit "H" Santa Monica Sign Code Exhibit "I" Construction Mitigation Plan Exhibit "Y 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 fixture written approval by the City and Developer. Operating memoranda are not intended to and cannot constitute an amendment to this Agreement but mere ministerial clarifications, therefore public notices and hearings shall not be required for any operating memorandum. The City Attorney shall be authorized, upon consultation with, and approval of, Developer, to determine whether a requested clarification may be effectuated pursuant to the execution and delivery of an operating memorandum or whether the requested clarification is of such character to constitute an amendment of this 37 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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. Except for the dedications to be made by Developer pursuant to Section 2.6, 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. Any portion of the Property to be conveyed to the City by Developer as provided in this Agreement, shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and the City shall not take or permit to be taken (if within the power or authority of the City) any action or activity with respect to such portion of the Property that would deprive Developer of the material benefits of this Agreement or would materially and unreasonably interfere with the development of the Project as contemplated by this Agreement. 15.24 Other Agreements. The City acknowledges that certain additional agreements may be necessary to effectuate the intent of this Agreement and facilitate 38 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc development of the Project. The City Manager or his /her designee is hereby authorized to prepare, execute, and record those additional agreements. 15.25 Severability and Termination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law which becomes effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. {signatures on next page} 39 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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: LINCOLN STUDIOS, LLC, a California limited liability company 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 Signature page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY LOTS "M ", "N ", AND "O ", IN BLOCK 166 OF SANTA MONICA, IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3, PAGES 80 AND 81, AND IN BOOK 39, PAGE 45 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Exhibit A Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT `B" PROJECT PLANS Exhibit B Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe EXHIBIT "C" PERMITTED FEES AND EXACTIONS Developer has commenced construction of the Project and has paid all fees required to date. If and to the extent that Developer requires modified plan approvals for the Project, then Developer shall pay the following fees and charges that are within the City's jurisdiction and at the rate in effect at the time payments are made: (a) Upon submittal for Architectural Review Board (ARB) review, Developer shall pay City fees for processing of ARB applications; (b) Upon submittal for plan check, Developer shall pay City plan check fees; (c) Prior to issuance of construction permits, Developer shall pay the following City fees and all other standard fees imposed on similar development projects: • Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping, Excavation and Shoring Permit fees (collected by Building & Safety) • Shoring Tieback fee (collected by EPWM) • Construction and Demolition (C &D) Waste Management fee (SMMC Section 7.60.020) (collected by EPWM) (collected by EPWM) • Wastewater Capital Facilities Fee (SMMC Section 7 04.460) (collected by EPWM) • Water Capital Facilities Fee & Water Meter Instillation fee (Water Meter Permit fee) (SMMC Section 7.12.090) (collected by EPWM) • Fireline Meter fee (SMMC Section 7.12.090) (collected by EPWM) (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. Exhibit C Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 2. Prior to issuance of permits for any construction work in the public right -of -way, or use of public property, Developer shall pay the following City fees: • Use of Public Property Permit fees (SMMC 7.04.670) (EPWM) Y Utility Excavation Permit fee (SMMC 7.04.010) (EPWM) • Street Permit fee (SMMC 7.04.790) (EPWM) 3. The Developer shall reimburse the City for its actual costs to monitor environmental mitigation measures. The City shall bill the 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. 4. Developer shall reimburse the City for its ongoing actual costs to monitor the project's compliance with this Development Agreement. The City shall bill Developer for staff time and any material used pursuant to the hourly fees in effect at the time monitoring is performed. Developer shall submit payment to the City within 30 days. Exhibit C Page t Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT "D" MITIGATION MEASURES AND CONDITIONS MITIGATION MEASURES —Part A of Exhibit D [LIST SPECIFIC MITIGA TION MEASURES REQUIRED BY PROJECT ENVIRONMENTAL REVIEW — NOT APPLICABLLI CONDITIONS OF APPROVAL — Part B of Exhibit D Project Specific Conditions The Project shall provide all of the following benefits. Enhanced Open Space. Developer shall construct the plaza areas and the walkway areas with enhanced landscaping on that portion of the Property identified on the Project Plans as either `Plaza Area' or 'Enhanced Walkway Areas' (the "Public Use Areas "). Developer shall at all times during the term of this Agreement make available in the Public Use Areas the following amenities available to the public: (i) not less than 6 tables; (ii) not less than 24 seats in some combination of chairs and benches; and (iii) not less than 4 umbrellas or other shade producing fixtures. Developer shall make the Public Use Areas accessible to the public from (i) 9:00 a.m. through 5:00 p.m. each day. The public use of the Public Use Areas 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 Areas 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 Areas by the public shall be permitted on the Public Use Areas. Developer shall have the right to impose and enforce reasonable rules and regulations regarding the use of the Public Use Areas by the public subject to the approval by the City which approval shall not be unreasonably withheld. Developer may exclude individuals from the Public Use Areas who do not comply with such rules and regulations. The Public Use Areas will provide the additional community benefit identified in Chapter 2.1 of the LUCE as Community Physical Improvements through quality pedestrian connections. 2. Prohibited Activities on the Public Use Areas. 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 Areas 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) Exhibit D Page I Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc using U amplifying equipment; or (v) 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 Areas 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. Should any such persons refuse to leave the Project, they shall be deemed to be trespassing and be subject to arrest in accordance with applicable law. Developer shall be entitled to establish and post rules and regulations for use of the Public Use Areas consistent with the foregoing. Nothing in this Agreement or in the Project Plans shall be deemed to mean that the Public Use Areas are public parks or are subject to legal requirements applicable to a public park or other public space. The Public Use Areas shall remain the private property of Developer with members of the public having only a license to occupy and use the Public Use Areas in a manner consistent with this Section 2. 3. Transportation Demand Management Plan. Other than the provisions set forth below in this Condition of Approval number 3 (the "TDM Plan "), Developer shall not be required to comply with SMMC section 9.16 et seq. a. AVR Requirements. With respect only to the tenants of the commercial space in the Integrated Project (and their respective employees) (the "Commercial Occupants "), Developer shall use its commercially reasonable efforts to achieve an average vehicle ridership ( "AVR") for the Commercial Occupants of at least 1.75 (the "AVR Goal ") by the second year after issuance of the Certificate of Occupancy for the Integrated Project. Chapter 9.16 of the Santa Monica Municipal Code shall govern how the AVR is calculated for the Commercial Occupants. Within six months after the Certificate of Occupancy is issued for the Integrated Project, Developer shall conduct a baseline survey of the AVR for the Integrated Project. Developer shall submit such baseline survey to the City at the time of submittal of the first annual compliance report for this Agreement, following the issuance of the Certificate of Occupancy, unless an alternative submittal date is approved by the Planning Director. Thereafter, the City shall monitor the TDM Plan performance as part of the City's Periodic Review for the Integrated Project. If, during any annual evaluation of the Integrated Project's employee trip reduction plan, the AVR Goal has not been achieved for the Integrated Project, then Developer shall propose modifications to the TDM Plan that Developer considers likely to achieve the AVR Goal by the date of the next annual evaluation of the Integrated Project's employee trip reduction plan. In addition, the City's Planning Director may recommend feasible modifications to the TDM Plan. Developer's failure to achieve the AVR Goal shall not constitute a breach of or a failure to satisfy this Condition of Approval. Lxhibit D Page 2 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc b. Transportation Information Center. Developer (or Developer's successors and assigns) shall provide on -site information for tenants, employees and visitors about (i) local public transit services (including bus lines, light rail lines, bus fare programs, ride share programs, shuttles), (ii) automobile rental facilities near the Property, and (iii) bicycle facilities (including routes, rental and sales locations, on -site bicycle racks and showers for the tenants of the Integrated Project). The public will be allowed to post items on the bulletin board to facilitate the creation of ridesharing relationships among the occupants of the Integrated Project and other members of the community. Developer (or Developer's successors and assigns) shall also provide walking and biking maps for employees and visitors, which shall include but not be limited to information about convenient local services and restaurants within walking distance of the Integrated Project. Developer (or Developer's successors and assigns) shall provide information to tenants and employees of the Integrated Project regarding local rental housing agencies. Such transportation information may be provided through a computer terminal with access to the Internet or, via a website. C. TDM Website Information. Developer (or Developer's successors and assigns) and tenants shall be required to make available, through a website, transportation information such as the items noted in the TDM Plan, Condition of Approval 3(b) above, including links to local transit providers, local automobile rental facilities, area walking maps, bicycling maps, etc., to inform employees and visitors of available alternative transportation modes to access the Integrated Project site and travel in the area. d. On Site Information Program. At least once each calendar year, Developer shall hold an informational meeting at the Integrated Project and shall invite all tenants, employees and other occupants of the Integrated Project to attend such meeting. During the informational meeting, Developer shall provide a printed summary of all of the transportation reduction alternatives available to such attendees, including guidance on public transit routes to and from the Integrated Project and coordination of vanpool and carpool formation. e. Unbundled Parking. Developer shall offer to lease all parking spaces in the Integrated Project to the residential and commercial tenants separately from their respective leases for residential units and leases for the commercial spaces. Such parking spaces shall be leased at market rates established by Developer from time -to -time. All tenants of the Integrated Project may, at their option, enter into leases with limited or no parking spaces as part of their respective leases. All commercial tenants of the Integrated Project may, at their option, enter into leases with reduced employee parking spaces. The number of employee parking spaces may be reduced by as much as fifty percent (50 %) of the code required parking Exhibit D - Page 3 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc space for the applicable commercial space; provided that the commercial . tenant provides fully subsidized monthly transit passes to the same percentage of employees as the percentage by which the parking spaces are reduced, and such passes are provided for the entire lease period during which reduced parking applies. For example, if the number of employee parking spaces is reduced by 25 %, then the commercial tenant shall provide fully subsidized monthly transit passes to 25% of their employees for the entire period. Not less frequently than once each calendar quarter, Developer shall deliver to the City's Transportation Management Office a list of those residential and commercial tenants of the Project who occupy the Project under leases with reduced or no parking spaces. f. Shared Parkinl?. In furtherance of the LUCE's shared parking policies, the Integrated Project shall implement the following provisions regarding shared parking spaces. Developer shall cause the 20 residential guest parking spaces provided in the Integrated Project to be shared with commercial visitors at all times during the operation of the commercial or retail space in the Integrated Project, and such spaces shall be shared on a first -come, first- served basis. So long as there are a sufficient number of on -site parking spaces for residents, commercial tenants, and their respective guests and visitors, Developer may lease any unused on -site parking spaces ( "Excess Spaces ") to third parties in the surrounding area in need of parking; provided that such leases are on a monthly basis and at market rental rates established by Developer from time -to -time. Prior to making any Excess Spaces available to third parties, (i) Developer shall obtain a written report by a traffic and parking engineering firm that demonstrates that Excess Spaces are not required to meet the Integrated Project's peak parking demand, and (ii) Developer shall obtain the Planning Director's approval of such report. Alternatively, Developer may seek City approval for any type of proposed shared parking arrangement in accordance with any City procedure in effect at the time Developer requests approval for a shared parking arrangement. g. Publically Accessible Bicycle Racks. The Property shall contain bicycle racks for not fewer than 10 bicycles, which racks shall be located as shown on the Project Plans. h. Residential Tenant Bicycle Racks. The Integrated Project shall contain bicycle racks to accommodate not fewer than 138 bicycles, which racks shall be for the exclusive use of the residential tenants of the Integrated Project. The occupants of each residential unit in the Integrated Project shall have access to at least one bicycle rack, even if such occupants do not lease a parking space pursuant to the unbundled parking element of the TDM Plan, Condition of Approval number 3(e) above. Exhibit D Page 4 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe i. Residential Tenant Bicycle Repair Station. The Integrated Project shall contain a bicycle repair station that includes a reasonable assortment of the tools necessary to perform basic bicycle repair and maintenance. The tools and an air pump, if included, may be securely attached to the repair station with cables or other tamper -proof fasteners. The bicycle repair station shall be for the exclusive use of the residential tenants of the Integrated Project. j. Commercial Employee Bicycle Lockers. The Project shall contain four (4) bicycle lockers on the first subterranean parking level, which bicycle lockers shall be for the exclusive use of the commercial tenants of the Project, and for their employees. k. On -Site Showers. Developer shall provide a shower facility for on -site employees who use bicycle or another active means, powered by human propulsion, to transport themselves to work at the Integrated Project. Bicycle Sharing Area. Developer shall provide a reasonable amount of space on the perimeter of the Property, not to exceed six (6) feet in depth and fifteen (15) feet in width; at a visible and accessible location on site which is compatible with the operation of the Integrated Project, for a bicycle sharing program station in conjunction with any bicycle sharing program instituted by the City or another operator. 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. If the City requests that Developer install a bicycle sharing program station, such station may replace the publically accessible bicycle racks required in the TDM Plan, Condition of Approval 1(g) above; provided that Developer shall use its commercially reasonable efforts to relocate the publically accessible bicycle racks to another location on the Property. If relocation of the publically accessible bicycle racks on the Property is not feasible, then Developer shall cooperate with the City to install bicycle racks in the portions of the City's public right of way designated by the City. In such case, Developer shall be responsible to purchase and install bicycle racks in the public right of way, in a number equal to the publically accessible bicycle racks that were removed to accommodate the bicycle sharing program station. 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 on or before December 31, 2020. m. Tenants' Use of Car Sharing Technologies. On or before the date on which the City issues a Certificate of Occupancy for the Integrated Project, Developer shall, at its sole cost and expense, implement some method, reasonably acceptable to City, of car sharing technology to encourage tenants at the building to use public transportation to commute Exhibit D Page 5 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc to work, while having access to the use of a private car during evening and weekend hours. One such method that City approves and that Developer may employ is an agreement with a company in the business of providing vehicles at hourly rates for the use by all occupants of the Integrated Project. Developer may at its discretion determine the terms and conditions pursuant to which occupants of the Integrated Project may participate in the car sharing program; provided that at all times during the term of this Agreement, occupants of the Integrated Project have access to at least one shared -use car that will be parked at the Property when not in use. Developer shall, at its sole cost and expense, pay all of the costs incurred under the contract with the car share provider, including any membership fees the car share provider may charge for use of the vehicles. The shared -use car shall, when at the Integrated Project, be parked in one of the code - required parking spaces. The Developer shall, as a result of this shared car parking space, use one of the residential parking spaces in the Integrated Project for this shared car. n. Transportation Management Association. Developer shall be required to participate in a Transportation Management Association ( "TMA "), if a TMA is formed by the City for an area that includes the Property. It is the intention of the City to form a TMA for the purpose of providing employees, businesses, visitors and residents of an area with resources to increase the amount of trips taken by transit, walking, bicycling, and ridesharing. Developer shall attend organizational meetings, and make available information to its tenants relative to the services provided by the TMA. o. Developer's Obligations to Modify the TDM Plan. Developer's failure to achieve the applicable AVR standard shall not constitute a breach of or a failure to satisfy any Condition of Approval. However, if Developer fails to timely achieve the AVR Goal, then thereafter Developer shall work cooperatively with the City to revise, add or change these Conditions of Approval that comprise the TDM Plan to seek, in good faith, to achieve the AVR Goal; provided that Developer shall only be required to include elements in its TDM Plan that are commercially reasonable, economically practicable, and technologically feasible. P. Changes to TDM Plan. Any of the modifications to this Condition of Approval number 3 (that comprises the TDM Plan) proposed by Developer (or proposed by the Planning Director and agreed to by the Developer) to help the Integrated Project achieve the AVR Goal shall be subject to the reasonable approval by the City's Planning Director. Traffic Impact Fee. In addition to any traffic fees, expenses or costs required to be paid or incurred by Developer under Exhibit C or Exhibit D, on or before the date on which the City issues a Certificate of Occupancy for the Integrated Project, Developer shall pay to the City a traffic impact fee of $144,042 . Exhibit D Page 6 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Administrative Conditions 5. 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 6. This approval is for those plans dated March 13, 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. 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. 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 9. 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. 10. No building permit shall be issued for the project until the developer complies with the requirements of Chapter 9.72 of the Santa Monica Municipal Code, the Child Care Linkage Program. Mitigation Monitoring Program 11. 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, Exhibit D Page 7 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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. Cultural Resources 12. No demolition of buildings or structures built 40 years of age or older shall be permitted until the end of a 60 -day review period by the Landmarks Commission to determine whether an application for landmark designation shall be filed. If an application for landmark designation is filed, no demolition shall be approved until a final determination is made by the Landmarks Commission on the application. 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). Final Design 16. Plans for final design, landscaping, screening, trash enclosures, and signage shall be subject to review and approval by the Architectural Review Board. 17. Refuse areas, storage areas and mechanical equipment shall be screened in accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas shall be of a size adequate to meet on -site need, including recycling. The Architectural Review Board in its review shall pay particular attention to the screening of such areas and equipment. Any rooftop mechanical equipment shall be minimized in height and area, and shall be located in such a way as to minimize noise and visual impacts to surrounding properties. Unless otherwise approved by the Exhibit D Page 8 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Architectural Review Board, rooftop mechanical equipment shall be located at least five feet from the edge of the roof. Except for solar hot water heaters, no residential water heaters shall be located on the roof. 18. No gas or electric meters shall be located within the required front or street side yard setback areas. The Architectural Review Board in its review shall pay particular attention to the location and screening of such meters. 19. Prior to consideration of the project by the Architectural Review Board, the applicant shall review disabled access requirements with the Building and Safety Division and make any necessary changes in the project design to achieve compliance with such requirements. The Architectural Review Board, in its review, shall pay particular attention to the aesthetic, landscaping, and setback impacts of any ramps or other features necessitated by accessibility requirements. 20. As appropriate, the Architectural Review Board shall require the use of anti - graffiti materials on surfaces likely to attract graffiti. Construction Plan Requirements 21. Final building plans submitted for approval of a building permit shall include on the plans a list of all permanent mechanical equipment to be placed indoors which may be heard outdoors. Demolition Requirements 22. 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. 23. 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. Construction Period 24. 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. 25. 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. Exhibit D Page 9 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Immediately after commencing dirt removal from the site, the general contractor shall provide the City of Santa Monica with written certification that all trucks leaving the site are covered in accordance with this condition of approval. 26. 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: 27. 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. 28. 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. 29. All material transported on and off -site shall be securely covered to prevent excessive amounts of dust. 30. Soils stockpiles shall be covered. 31. Onsite vehicle speeds shall be limited to 15 mph. 32. 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 hip. 33. An appointed construction relations officer shall act as a community liaison concerning onsite construction activity including resolution of issues related to PM 10 generation. 34. Streets shall be swept at the end of the day using SCAQMD Rule 1186 certified street sweepers or roadway washing tucks if visible soil is carried onto adjacent public paved roads (recommend water sweepers with reclaimed water). 35. All active portions the construction site shall be sufficiently watered three times a day to prevent excessive amounts of dust. 36. Developer shall prepare a notice, subject to the review by the Director of Planning and Community Development, that lists all construction mitigation requirements, permitted hours of construction, and identifies a contact person at City Hall as well as the developer who will respond to complaints related to the proposed construction. The notice shall be mailed to property owners and residents of the neighborhood, within a 1000 -foot radius of the subject property, at least five (5) days prior to the stmt of construction. Exhibit D Page 10 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12 37. 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. 38. 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. 39. 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. 40. During excavation of the portion of the garage that encroaches into the public right of way, all existing concrete within the public right of way shall be removed by Developer, and Developer shall (during the entire construction period) install and maintain a drip line to irrigate the street trees. In addition, the exposed soil surface within the public right of way shall be covered with mulch (approximately four inches (4 ") thick), prior to the date the excavation within the public right of way commences. Standard Conditions 41. 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. 42. 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. 43. Final parking lot layout and specifications shall be subject to the review and approval of the Transportation Management Division. Construction period signage shall be subject to the approval of the Architectural Review Board. 44. The property owner shall insure any graffiti on the site is promptly removed through compliance with the City's graffiti removal program. Exhibit D Page 11 Development Agreement -1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Open Space Manatzement 45. Street trees shall be maintained, relocated or provided as required in a manner consistent with the City's Community Forest Management Plan 2000, per the specifications of the Public Landscape Division of the Community Maintenance Department and the City's Tree Code (SMMC Chapter 7.40). No street trees shall be removed without the approval of the Public Landscape Division. Condition Monitorine 46. 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. Exhibit D Page 12 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc OTHER CONDITIONS General Conditions 1. 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. 2. 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. 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. 4. [omitted] 5. 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. 6. 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. Exhibit D Page 13 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 7. 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. 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 9. 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. 10. 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. 11. 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. 12. [omitted] 13. [omitt ed] 14. [omitted] 15. All existing sanitary sewer "house connections" to be abandoned, shall be removed and capped at the "Y" connections. 16. 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. Exhibit Page 14 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 17. 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 /eheross.htm. Prior to issuance of a Certificate of Occupancy, a cross - connection inspection shall be completed. 18. 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. 19. 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 20. [omitted] Public Streets & Right- of -Way 21. [omitted] 22. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable during the grading and construction phase of the project. 23. 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. 24. [Reserved] 25. [Reserved] Utilities 26. [omitted]. 27. [omitted]. 28. [omitted]. 29. [omitted]. Exhibit D Page 15 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Resource Recovery and Recycling 30. [omitted]. 31. [omitted]. Construction Period Mitigation 32. [omitted]. Air Quality 33. Dust generated by the development activities shall be kept to a minimum with a goal of retaining dust on the site through implementation of the following measures recommended by the SCAQMD Rule 43 Handbook: 1) 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. 2) 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. 3) 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. 4) 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. 5) Soil stockpiled for more than two days shall be covered, kept moist, or treated with soil binders to prevent dust generation. 34. Construction equipment used on the site shall meet the following conditions in order to minimize NOx and ROC emissions: - Exhibit Page 16 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc _ 1) Diesel - powered equipment such as booster pumps or generators should be replaced by electric equipment to the extent feasible; and 2) The operation of heavy -duty construction equipment shall be limited to no more than 5 pieces of equipment at one time. Noise Attenuation 35. All diesel equipment shall be operated with closed engine doors and shall be equipped with factory - recommended mufflers. 36. Electrical power shall be used to run air compressors and similar power tools. 37. For all noise - generating activity on the project site associated with the installation of new facilities, additional noise attenuation techniques shall be employed to reduce noise levels to City of Santa Monica noise standards. Such techniques may include, but are not limited to, the use of sound blankets on noise generating equipment and the construction of temporary sound barriers between construction sites and nearby sensitive receptors. Miscellaneous: 38. 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. 39. [Reserved] Exhibit D Page 17 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc FIRE — CITY OF SANTA MONICA GENERAL REQUIREMENTS omitted California Fire Code/ Santa Monica Fire Department Requirements 40. [omitted]. (remainder ofpage is blank) Exhibit Page 18 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT `B" ZONING ORDINANCE On file with the City Clerk Exbibit E Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT "F" [Reserved] Exhibit Page I Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT "G" [RESERVED] Exhibit G Page I Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT "H" SANTA MONICA SIGN CODE On file with the City Clerk. Exhibit H Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doe EXHIBIT "I" CONSTRUCTION MITIGATION PLAN CON -1 Construction Impact Mitigation Plan. The applicant shall not be required to prepare, implement or maintain a Construction Impact Mitigation Plan. Ongoing Requirements Throughout the Duration of Construction A detailed traffic control plan for work zones shall be maintained which includes at a minimum accurate existing and proposed: 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 must 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 AM and 4:00 PM, including: 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 P W 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. • Off - street parking shall be provided for construction workers. This may include the use of a remote location with shuttle transport to the site, if determined necessary by the City of Santa Monica. Exhibit I Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Project Coordination Elements That shall Be Implemented Prior to Commencement of Construction • The traveling public shall be advised of impending construction activities (e.g. information signs, portable message signs, media listing /notification, implementation of an approved traffic control plan). Any construction work requiring encroachment into public rights -of -way, detours or any other work within the public right -of -way shall require approval from the City through issuance of a Use of Public Property Permit, Excavation Permit, Sewer Permit or Oversize Load Permit, as well as any Caltrans Permits required. • Timely notification of construction schedules shall be given to all affected agencies (e.g., Big Blue Bus, Police Department, Fire Department, Department of Public Works, and Planning and Community Development Department) and to all owners and residential and commercial tenants of property within a radius of 1000 feet. • Construction work shall be coordinated with affected agencies in advance of start of work. Approvals may take up to two weeks per each submittal. • The Strategic Transportation Planning Division shall approve of any haul routes, for earth, concrete or construction materials and equipment hauling. Exhibit I Page 2 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc CON -2(a) Diesel Equipment Mufflers. All diesel equipment shall be operated with closed engine doors and shall be equipped with factory - recommended mufflers. CON -2(b) Electrically- Powered Tools. Electrical power shall be used to run air compressors and similar power tools. CON -2(c) Restrictions on Excavation and Foundation/Conditioning. Pile driving, excavation, foundation - laying, and conditioning activities (the noisiest phases of construction) shall be restricted to between the hours of 10:00 AM and 3:00 PM, Monday through Friday, in accordance with Section 4.12.110(d) of the Santa Monica Municipal Code. CON -2(d) Additional Noise Attenuation Techniques. For all noise generating construction activity on the project site, additional noise attenuation techniques shall be employed to reduce noise levels at to 83 dB or less from 8:00 to 6:00 PM weekdays and 9:00 AM to 5:00 PM Saturdays. Per the Noise Ordinance, construction noise may exceed 83 dB if it only occurs between 10:00 AM and 3:00 PM. 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 around the perimeter of the project construction site. CON -2(e) Construction Sign Posting. In accordance with Municipal Code Section 4.12.120, the project applicant shall be required to post a sign informing all workers and subcontractors of the time restrictions for construction activities. The sign shall also include the City telephone numbers where violations can be reported and complaints associated with construction noise can be submitted. CON -3(a) ROG Control Measures. The applicant shall ensure that architectural coatings used on the project comply with SCAQMD Rule 1113, which limits the VOC content of architectural coatings. Exhibit I Page 3 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc CON-3(b) gitive Dust Control Measures. The following shall be implemented during construction to minimize fugitive dust and associated particulate emissions: • Sufficiently water all excavated or graded material 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. • Cease all grading, earth moving or excavation activities during periods of high winds (i.e., greater than 20 mph measured as instantaneous wind gusts) so as to prevent excessive amounts of dust. Securely cover all material transported on and off -site to prevent excessive amounts of dust. • Cover all soil stockpiles. • Limit on -site vehicle speeds to 15 mph. • Install wheel washers where vehicles enter and exit the construction site onto paved roads or wash off trucks and any equipment leaving the site each trip. • Appoint a construction relations officer to act as a community liaison concerning on -site construction activity including resolution of issues related to PMI0 generation. • Sweep streets 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). Exhibit I Page 4 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc EXHIBIT "J" ASSIGNMENT AND ASSUMPTION AGREEMENT Recording Requested By and When Recorded Mail To: Armbruster & Goldsmith, LLP 11611 San Vicente Blvd., Suite 900 Los Angeles, CA 90049 Attn: Dale Goldsmith, Esq. ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made and entered into by and between LINCOLN STUDIOS, LLC, a California limited liability company ( "Assignor "), and a ( "Assignee "). RECITALS A. The City of Santa Monica ( "City ") and Assignor entered into that certain Development Agreement dated , 2012 (the "Development Agreement "), with respect to the real property located in the City of Santa Monica, State of California more particularly described in Exhibit "A" attached hereto (the "Project Site "). B. Assignor has obtained from the City certain development approvals and permits with respect to the development of the Project Site, including without limitation, approval of the Development Agreement and a vesting parcel map for the Project Site (collectively, the "Project Approvals "). C. Assignor intends to sell, and Assignee intends to purchase, the Project Site. D. In connection with such purchase and sale, Assignor desires to transfer all of the Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Project Site. Assignee desires to accept such assignment from Assignor and assume the obligations of Assignor under the Development Agreement and the Project Approvals with respect to the Project Site. THEREFORE, the parties agree as follows: Exhibit K Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc Assigran t. Assignor hereby assigns and transfers to Assignee all of Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Project Site. Assignee hereby accepts such assignment from Assignor. 2. Assumption. Assignee expressly assumes and agrees to keep, perform, and fulfill all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled by Assignor under the Development Agreement and the Project Approvals with respect to the Project Site. 3. Effective Date. The execution by City of the attached receipt for this Agreement shall be considered as conclusive proof of delivery of this Agreement and of the assignment and assumption contained herein. This Agreement shall be effective upon its recordation in the Official Records of Los Angeles County, California, provided that Assignee has closed the purchase and sale transaction and acquired legal title to the Project Site. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below. "ASSIGNOR" [SIGNATURE BLOCK] "ASSIGNEE" [SIGNATURE BLOCK] Exhibit K Page 2 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc 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 ma Planning Director Receipt by City Page 1 Development Agreement - 1447 Lincoln - 3 -27 -12 als revise 5 10 12.doc ATTACHMENT D PUBLIC NOTIFICATION NOTICE OF A PUBLIC HEARING BEFORE THE SANTA MONICA CITY COUNCIL SUBJECT: 11DEV006 (Development Agreement 11 -006) 1447 Lincoln Boulevard APPLICANT: NMS Properties, Inc. PROPERTY OWNER: Lincoln Studios, LLC A public hearing will be held by the City Council to consider the following request: The property owner is seeking a Development Agreement with the City to add 4,333 square feet of commercial floor area, 2,217 square feet of residential floor area, and one (1) one - bedroom unit to a 97 -unit mixed -use building that is currently under construction. DATE/TIME: TUESDAY, MAY 22, 2012, AT 6:45 p.m. LOCATION: City Council Chambers, Second Floor, Santa Monica City Hall 1685 Main Street, Santa Monica, California HOW TO COMMENT The City of Santa Monica encourages public comment. You may comment at the City Council public hearing, or by writing a letter. Written information will be given to the City Council at the meeting. Address your letters to: City Clerk Re: 11DEV006 (1447 Lincoln Boulevard) 1685 Main Street, Room 102 Santa Monica, CA 90401 MORE INFORMATION If you want more information about this project or wish to review the project file, please contact Tony Kim at (310) 458 -8341, or by e-mail at tony.kim @smgov.net. The Zoning Ordinance is available at the Planning Counter during business hours and on the City's web site at www.santa- monica.oro. The meeting facility is wheelchair accessible. For disability - related accommodations, please contact (310) 458 -8341 or (310) 458 -8696 TTY at least 72 hours in advance. All written materials are available in alternate format upon request. Santa Monica Big Blue Bus Lines numbered 1, 2, 3, 4, 5, 7, 8, 9, and the Tide Ride serve City Hall. Pursuant to California Government Code Section 65009(b), if this matter is subsequently challenged in Court, the challenge may be limited to only those issues raised at the public hearing described in this notice, or in written correspondence delivered to the City of Santa Monica at, or prior to, the public hearing. ESPANOL Esto es una noticia de una audiencia publica para revisar applicaci6nes proponiendo desarrollo an Santa Monica. Si deseas m6s informaci6n, favor de Ilamar a Carmen Gutierrez an la Divisi6n de Planificaci6n al npmero (310) 458 -8341. APPROVED AS TO FORM: Amanda Schachter Planning Manager F: \CityPianning\ Share \COUNCIL\NOTICES\2011 \11DEV006 (1447 Lincoln Blvd) ATTACHMENT E PROJECT PLANS AND RENDERINGS Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the Libraries. Ts--/ d i , tF -end, 7 , l 9 r� r-t I — ° 9 BE �- . • • • •!I r • -Im 1447 Lincoln: C4 Highway Commercial District Recommendations �: Mixed Use Boulevard Land Use Designation Broadway: D Broadway Commercial Mixed Use Boulevard Low Land Use Designation 1447 Lincoln Blvd DA 829 Broadway DA May 22, 2012 „- CITY COUNCIL HEARING' ,j CITY COUNCIL HEARING �-"M a' :l� rt CITY COUNCIL H • MI- 11 , M, `' •'L 11 ' • . • 7 F I o- � I i— -- --------------------------------------------- - - - --� BROADWAY 1447 Lincoln Boulevard • One additional affordable one - bedroom unit on the fifth floor 1447 Lincoln Blvd DA 829 Broadway DA May 22, 2012 Ean1w Nonlen Rf. =1. irl im K 7 c S� BROADWAY i� N ® 23915 SF of additional ground floor commercial area /•1 M • P'To • M rew Umem - • -. 1447 Lincoln Blvd DA 829 Broadway DA May 22, 2012 CITY COUNCIL HEARING I fflM.f_q1M_ ffini - • •. • 1 —new LUCE adopted Increased maximum FAR to 2.75 (1447 Lincoln) and to 2.00 (829 Broadway) for Tier 3 projects March 1 11 — Interim Zonini- 'ZI ' ® Tier 2 and 3 projects require Development Agreements Applicant - to add commercial floor area and one residential unit 1447 Lincoln Blvd DA 829 Broadway DA May 22 1 2012 gan(v JIOVIN` • n ..,• • �' • '• • . Residential and employee bike parking facilities • Vehicle and bike sharing • Transportation information center • Commercial AVR requirement • Transportation Management Association • Unbundled /shared parking • Transit impact fee contribution • Additional on -site affordable housing 1447 Lincoln Blvd DA 829 Broadway DA May 22, 2012 ynnfo Jfootca° I: R MOR-rim 0 ® Limited size and scope of project modifications ® Appropriate level of community and project benefits ® 1447 Lincoln — require a CUP for ground floor banks /financial institutions /non - pedestrian oriented uses facing Lincoln Blvd ® Planning Commission recommended that the City Introduce for first reading ordinances adopting - •:• -, Agreements 1447 Lincoln Blvd DA 829 Broadway DA May 22, 2012 y'nnfo Moolca° » «c2 #§ +r< _. . 2 « » « «r«§? , (3¥7 1447Lincoln: : may Commercial is } ����2 ■� ;D - ecomme<dation \ © ed U Boulevard Land Use Designation .� . ¥\ 5 Broadway: BCD Broadway Commercial D Mixed Use Boulevard Low Land Use Designation 447 Lincoln t:k D < 2 829 Broadway DA \ : «_< 2 <!;< &DD(� To OFFICE OF THE MAY 2% 2012 CITY CLERK 2012 HAY IS Ai'110:54 SANTA HONICA. CALIF. OV4 �YVoVfs V� ffV' Scrr(e; /nVb�✓�lC'� + �iacG2lt� IYVI V-ev- 40 0 Uv I C, / d Lt CDC1 v h®ri TD -7C MAY 2 2 2012 Attachment available for review in the City Clerk's Office