O2415City Council Meeting 10 -2 -12
Santa Monica, California
ORDINANCE NUMBER 2415 (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 1548LUXENMS, LLC, A
CALIFORNIA LIMITED LIABILITY COMPANY
WHEREAS, on July 26, 2012, 1548LUXENMS, LLC, a California Limited Liability
Company, submitted an application for a development agreement to convert 3,038
square feet of non - usable space into usable floor area for the construction of four new
residential units within an existing six -story, mixed -use development that contains 50
residential units and approximately 900 square feet of ground floor commercial space;
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 Project addition will include residential units with a diversity of
type, forms, sizes, tenure, and affordability for all income levels.
inconsistencies and no further, be repealed or modified to that extent necessary to
make fully effective the provisions of this Development Agreement.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto, inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, are hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of any competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance, and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall be effective
30 days from its adoption.
APPROVED AS TO FORM:
Air
3
LUCE Policy D7.7.
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.
The Project incorporates community benefits, including but not limited
to a traffic impact fee, and a TDM plan that promotes shared and
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 1548LUXENMS, 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
2
Recording Requested By:
City of Santa Monica
When Recorded Mail To:
City of Santa Monica
Santa Monica City Attorneys 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
1548LUXENMS, LLC
(Regarding Property Located at 1548 6th Street)
,2012
Development Agreement Document - 1548 6th St - 9 -12 -12
TABLE OF CONTENTS
Recitals............................................................................................................ ...............................
l
Article1
Definitions ................................................................................ ..............................4
Article 2
Description of the Project ........................................................ ..............................5
2.1
General Description ................................................................. ..............................5
2.2
Principal Components of the Project ...................................... ...............................
5
2.3
No Obligation to Develop ........................................................ ..............................6
2.4
Vested Rights ........................................................................... ..............................6
2.5
Permitted Uses ........................................................................ ...............................
8
2.6
Project and Community Benefits ............................................ ...............................
8
2.7
Parlcing .................................................................................... .............................12
2.8
Design .................................................................................... .............................12
Article3
Construction ............................................................................ .............................13
3.1
Construction Mitigation Plan .................................................. .............................13
3.2
Construction Hours ................................................................. .............................13
3.3
Construction Period ................................................................ .............................13
3.4
Damage or Destruction ........................................................... .............................13
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 .............. .............................14
5.1
Development Standards for the Property; Existing Regulations .........................14
5.2
Permitted Subsequent Code Changes ..................................... .............................15
Development Agreement Document - 1548 6th St - 9 -12 -12
5.3
Common Set of Existing Regulations ..................................... .............................17
5.4
Conflicting Enactments ........................................................... .............................17
5.5
Timing of Development .......................................................... .............................17
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 ........................................................... .............................18
73
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 Document - 1548 6th St - 9 -12 -12
Article11
Default .....................................................................................
.............................22
11.1
Notice and Cure ....................................................................
............................... 22
11.2
Remedies for Monetary Default ............................................
............................... 23
11.3
Remedies for Non - Monetary Default ...................................
............................... 23
11.4
Modification or Termination Agreement by City .................
............................... 25
11.5
Cessation of Rights and Obligations .......................................
.............................26
11.6
Completion of Improvements ...............................................
............................... 26
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
Article 14
Indemnity to City .....................................................................
............................29
14.1
Indemnity ..............................................................................
............................... 29
14.2
Citys Right to Defense ............................................................
.............................30
Article 15
General Provisions ..................................................................
.............................30
15.1
Notices ....................................................................................
.............................30
15.2
Entire Agreement; Conflicts .................................................
............................... 31
15.3
Binding Effect .......................................................................
............................... 31
15.4
Agreement Not for Benefit of Third Parties .........................
............................... 31
15.5
No Partnership or Joint Venture ...........................................
............................... 32
15.6
Estoppel Certificates ...............................................................
.............................32
15.7
Time ......................................................................................
............................... 32
15.8
Excusable Delays ....................................................................
.............................32
15.9
Governing Law .....................................................................
............................... 33
Development Agreement Document - 1548 6th St - 9 -12 -12
15.10 Cooperation in Event of Legal Challenge to Agreement ...... ...............................
33
15.11 Attorneys' Fees ...................................................................... ...............................
34
15.12 Recordation ............................................................................. .............................34
15.13 No Waiver ............................................................................... .............................34
15.14 Construction of this Agreement ............................................ ...............................
34
15.15 Other Governmental Approvals .............................................. .............................34
15.16 Venue ..................................................................................... .............................35
15.17 Exhibits ................................................................................... .............................36
15.18 Counterpart Signatures ............................................................ .............................36
15.19 Certificate of Performance ...................................................... .............................36
15.20 Interest of Developer ............................................................. ...............................
36
15.21 Operating Memoranda ............................................................ .............................36
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer .........
37
15.23 Not a Public Dedication ........................................................ ...............................
37
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"T [Reserved]
Exhibit 'G' [Reserved]
Exhibit`Ir Santa Monica Sign Code
Exhibit" P Construction Mitigation Plan
Exhibit'T Assignment and Assumption Agreement
Development Agreement Document - 1548 6th St - 9 -12 -12
DEVELOPMENT AGREEMENT
This Development Agreement (`Agreement), dated for reference purposes
, 2012, is entered into by and between 1548LUXENMS, LLC, a California
limited liability company (Developee), 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" CSt�), 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 15,000 square feet of land
located in the City of Santa Monica, State of California, commonly known as 1548 Sixth
Street, as more particularly described in Exhibit "Xattached hereto and incorporated
herein by this reference (the "Properq).
C. The City has included the Property within the Downtown Core land use
designation under the City's recently adopted Land Use and Circulation Element of its
General Plan (the` LUCE). The Property is located within the C3 zone under the City's
Zoning Ordinance.
D. On September 27, 2006, the City issued an amended Administrative
Approval Determination pursuant to SMMC Section 9.04.1014.050(b) (the`Initial
Administrative Approval), designated by the City as Amended Administrative
Approval 04AA -027. The Amended Administrative Approval grants Developer the right
to develop the Property with an approximately 29,976 square -foot mixed -use project
(excluding parking area) containing 50 market -rate residential units, approximately 900
square feet of ground floor retail space, a two -level subterranean parking garage and at-
grade parking (for a total of 102 parking spaces), and related facilities, with an FAR of
2.0 (collectively, the "Original Project), all as set forth in the Certificate of Occupancy
issued for the Original Project on August 26, 2010.
E. On July 26, 2011, Developer filed an application for a Development
Agreement, pursuant to SMMC Section 9.48.020 (the`Development Application). The
Development Application was designated by the City as Application No. 11-
DEV -012. The Development Application is for the following modifications to the
Original Project (the`Troject): (a) 3,038 additional square feet of space in the Building
for residential uses, including four (4) additional residential units in the Building
(including one very low income unit); 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
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Development Agreement Document - 1548 6th St - 9 -12 -12
the modifications to 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 an approximately 33,014 square -foot mixed -use project
(excluding parking area) containing 54 residential units (including one, 1- bedroom very
low income unit), approximately 900 square feet of ground floor retail space, a two -level
subterranean parking garage, and related facilities (collectively, the`2ntegrated Project).
The Integrated Project will contain 53 market -rate residential units, one very low income
residential unit, 33,014 square feet of space, and will have an FAR of 2.2.
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 entered into that certain Settlement Agreement Imposing
Restrictions on the Use & Occupancy of Real Property, dated August 26, 2010 (the
`Settlement Agreement), that certain Implementing Agreement Guarantying
Development of Affordable Housing (the`Implementing Agreement), recorded in the
Official Records of the Los Angeles County Recorder as Document # 20110774307, and
that certain Amended and Restated Agreements Imposing Restrictions on Rents &
Occupancy of Real Property (the "Affordable Housing Deed Restrictiori� recorded in
the Official Records of the Los Angeles County Recorder as Document # 20111503344.
Developer has entered into the Settlement Agreement, the Implementing Agreement, and
the Affordable Housing Deed Restriction, to satisfy the affordable housing obligations of
specified market rate projects, including the Original Project, located within the Santa
Monica Downtown District. Pursuant to the Settlement Agreement, the Implementing
Agreement and the Affordable Housing Deed Restriction, Developer is obligated to
restrict up to nineteen (19) two bedroom units at the Property to very low income
households in the event that affordable units scheduled to be completed at other property
locations are not completed in compliance with the applicable schedule and milestones
set forth in said agreements. The obligations set forth in the Settlement Agreement, the
Implementing Agreement and the Affordable Housing Deed Restriction shall take
precedence and be superior to this Development Agreement, which shall have no effect
on said obligations.
I. Developer has paid all necessary costs and fees associated with the Citys
processing of the Development Application and this Agreement.
J. The primary purpose of the Project is 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
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Development Agreement Document - 1548 6th St - 9 -12 -12
the Development Agreement Statutes in order to achieve the development of the Project
on the Property.
K. 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.
L. This Agreement is consistent with the public health, safety, and welfare
needs of the residents of the City and the surrounding region. The City has specifically
considered and approved the impact and benefits of the development of the Project on the
Property in accordance with this Agreement upon the welfare of the region. The Project
will provide a number of public benefits, including without limitation the following: (i)
providing 1 Very Low Income housing unit, and (ii) making space available at the
Property for the future installation of shared bicycle program parking stalls.
M. 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 1.19 below),
including the standards of the C3 zone.
N. 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.
O. On September 11, 2012, the City Council held a duly noticed public
hearing on the Development Application and at such hearing the City and introduced
Ordinance No. 11DEV -012 for first reading, approving this Agreement.
P. 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:
Development Agreement Document - 1548 6th St - 9 -12 -12
ARTICLE 1
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 in the Project.
1.2 `Agreement'means this Development Agreement entered into between the
City and Developer as of the Effective Date.
1.3 `ANII'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.
1.4 `ARB'means the City's Architectural Review Board.
1.5 `lireacli'has the meaning set forth in section 11.1.1 below.
1.6 `Suilding'means the new primary building to be constructed as part of the
Project, which will contain, in the aggregate, up to 94,303 square feet of floor area.
1.7 `City Council" means the City Council of the City of Santa Monica, or its
designee.
1.8 `City General Plad'or%eneral Plad'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.
1.9 `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.
1.10 `Effective Datd'has the meaning set forth in Section 9.1 below.
1.11 `floor Ared'has the meaning as defined in Section 9.04.02.030.315 of the
Zoning Ordinance. The maximum allowable Floor Area for the Project is 94,303 square
feet.
1.12 `Floor Area Ratid' and FAR'means floor area ratio as defined in
Section 9.04.02.030.320 of the Zoning Ordinance.
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Development Agreement Document - 1548 6th St - 9 -12 -12
1.13 `including'means`including, but not limited to"
1.14 `Legal Actioii'means any action in law or equity.
1.15 `Maximum Floor Ared'means 94,303 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 `Parties" mean both the City and Developer and`Party" means either the
City or Developer, as applicable.
1.18 `Planning Directoi'means the Planning Director of the City of Santa
Monica, or his or her designee.
1.19 `Project Plans°'mean the plans for the Project that are attached to this
Agreement as Exhibit`13"
1.20 `Very Low Income Units°'mean units set aside for Very Low Income
households, as defined by SMMC, section 9.56.020.
1.21 `Zoning Ordinaned'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'V(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) 3,038 additional square feet of space in the Building
for residential uses, including four (4) additional residential units in the Building (one of
which will be a Very Low Income Unit); 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. When the Project is completed, the Integrated Project will contain,
in the aggregate, 54 residential units, 33,014 square feet of space, and will have an FAR
of 2.2. The Integrated Project will contain 54 housing units, consisting of 53 market -rate
Development Agreement Document - 1548 6th St - 9 -12 -12
units (comprised of 2 SRO units, 18 one - bedroom units and 33 two - bedroom units), and
1 one - bedroom, Very Low Income Unit, approximately 900 square feet of Floor Area of
retail /restaurant use, and one hundred and two (102) parking spaces in a two -level
subterranean parking garage.
2.3 No Obligation to Develop.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require
Developer to proceed with the construction of the Project or any portion thereof.
(b) The decision to proceed or to forbear or delay in
proceeding with construction of the Project or any portion thereof shall be in Developer's
sole discretion.
(c) Failure by Developer to proceed with construction of the
Project or any portion thereof shall not give rise to any liability, claim for damages or
cause of action against Developer, except as may arise pursuant to a nuisance abatement
proceeding under SMMC Chapter 8.96, or any successor legislation.
2.3.2 Failure by Developer to proceed with construction of the 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 (Wlinor
Modifications') without amending this Agreement; provided that the Planning Director
makes the following specific findings that the Minor Modifications: (i) are consistent
with the Projects 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
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Development Agreement Document - 1548 6th St - 9 -12 -12
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 Modificationg'(defined below) to the Project without
first amending this Agreement to permit such Major Modifications. A`Major
Modificatiod'means the following:
(a) The aggregate net Floor Area of the Project shall not
exceed the Maximum Floor Area;
(b) The Building shall not exceed six stories or a building
height of sixty (6(Y), except as permitted under the Existing Regulations or as set forth in
Section 7.3.3 below;
(c) Reduction of any setback of the Project, as depicted on the
Project Plans, is by such reduction the applicable setback would be less than is permitted
in the applicable zoning district under the Zoning Ordinance in effect on the date such
modification is applied for;
(d) Any change in use not consistent with the permitted uses
defined in Section 2.5 below;
(e) A reduction in the number of Rental Housing units
specified in Section 2.2 (a) by more than 4 units;
(f) 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 102;
(g) Any material change in the number or location of curb cuts
shown on the Project Plans;
(h) Any variation in the design, massing and building
configuration, including but not limited to, floor area and building height, that renders
such aspects out of substantial compliance with the Project Plans; and
(i) 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 Citys 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
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Development Agreement Document - 1548 6th St - 9 -12 -12
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 Right 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 a
Downtown Core District 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'); parking for primary and ancillary uses; and such other uses as may be
authorized by the City pursuant to Section 8.1 below.
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
Downtown Core District zone with a well- designed mixed -use project; and (iv) an
activated pedestrian experience from the street level retail use.
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) Additional Very Low Income Unit. The Project includes
the addition of four residential units in an existing building. Developer shall provide one
(1) Very Low Income Unit as part of the Project. If one were to calculate the number of
Very Low Income Units required to be provided as ten percent (10 %) of the total number
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of new units in the Project, one would conclude that only four - tenths of one unit would
be required pursuant to the City's Affordable Housing Production Program requirements.
In such case, Developer could choose to pay a cash fee to the City for such fractional
affordable unit. Therefore, the commitment by Developer to provide one (1) Very Low
Income Unit as part of the Project constitutes an additional community benefit, because
Developer will not only provide an entire affordable unit (instead of the cash value of a
fractional unit), this Affordable Unit will also be provided within the Project and thus
create a new affordable unit for use by Very Low Income residents of the City.
(b) Transportation Demand Management Plan. Other than the
provisions set forth below in this Section 2.6.2(b) (the`°IDM Plad), 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 Citys Periodic Review for the
Integrated Project. If, during any annual evaluation of the Integrated Projecfs 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
Projecfs employee trip reduction plan. In addition, the Citys Planning Director may
recommend feasible modifications to the TDM Plan. 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
Development. Agreement Document - 1548 6th St - 9 -12 -12
regarding local rental housing agencies. Such transportation information maybe
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(b)(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; provided that
Developer shall cause (4) residential units within the Integrated Project to be leased to
tenants with zero (0) parking spaces. Notwithstanding the foregoing, (i) the tenant in the
Very Low Income Unit shall be offered a choice upon signing the lease to either secure a
parking space at no additional charge, or receive a $150 a month reduction in rent in lieu
of a parking space and (ii) subsequent to the Very Low Income Unit tenants election of a
parking space or a rental reduction, each of the remaining tenants in the three (3) other
residential units without parking spaces may lease from Developer any unbundled
parking spaces that may become available for use by others from time to time pursuant to
the unbundled parking provisions in this Section 2.6.2(b)(5), on terms determined by
Developer. 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 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 Citys
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.
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(6) Shared Parkin. 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 10 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, subject to Developer's obligation to allocate one parking
space to a shared use car pursuant to Section 2.6.2(b)(11) below, Developer may lease
any unused on -site parking spaces (Excess Spaceg) 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.
(7) Publically Accessible Bicycle Racks. The Property
shall contain bicycle racks for not fewer than 28 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 108 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(b)(5).
(9) Residential Tenant Bic,, clpair 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.
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(10) 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(b)(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
Citys 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.
(11) Tenants' Use of Car Sharing Technologies. The
Integrated Project does not currently have any parking spaces that are Excess Spaces that
could be allocated to park shared -use cars in the Integrated Project when not in use.
However, if, during the Term of this Agreement, any Excess Spaces become available in
the Integrated Project, then Developer shall allocate one Excess Space to park a shared -
use car. In such case, 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 periods during the term of this Agreement when an Excess Space is available,
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 a tandem parking stall provided
at the Property.
(12) 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
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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.
(13) 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.
(14) 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 Citys Planning Director as a Minor Modification.
(c) 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 $75,000.00.
Notwithstanding the foregoing sentence, Developer shall pay only one $75,000.00 traffic
impact fee, even though this obligation is repeated as Condition of Approval number 3 on
Exhibit D.
2.7 Parking. The number of parking spaces provided in the Integrated Project
shall be 102, including up to 5 percent compact parking spaces. 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 Design.
(a) Setbacks. Developer shall maintain the setbacks for the
Project as set shown on the Project Plans. In the event that any inconsistencies exist
between the Zoning Ordinance and the setbacks established by this Agreement, then the
setbacks required by this Agreement shall prevail.
(b) Building Height. The maximum height of the building
shall be as set forth on the Project Plans. In the event that any inconsistencies exist
between the Zoning Ordinance and the building height allowed by this Agreement, then
the building height allowed by this Agreement shall prevail.
(c) Stepbacks. Developer shall maintain the stepbacks for the
Project as set forth on the Project Plans. In the event that any inconsistencies exist
between the Zoning Ordinance and the stepbacks required by this Agreement, then the
stepbacks established by this Agreement shall prevail.
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(d) Permitted Projections. Projections shall be permitted as
reflected on the Project Plans. In the event that any inconsistencies exist between the
Zoning Ordinance and the projections permitted by this Agreement, then the projections
permitted by this Agreement shall prevail.
(e) Signage. The location, size, materials, and color of any
signage shall be reviewed by the ARB (or 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 ExhibiYTP.
Directional signs for vehicles shall be located at approaches to driveways as required by
the City's Strategic Transportation Planning Division.
with the Project Plans.
(f) Balconies. Balconies shall be provided in accordance
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
ExhibitIlThereto.
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 Cites General Plan in effect at the time of obtaining the.
building permit.
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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" U,'IYand`T
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 hnplementation 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'U..
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:
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(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 Section 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.
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(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 (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 Cit} s Building Code, Plumbing Code, Mechanical Code, Electrical
Code and Fire Code; provided that such construction standards and specifications are
applied on a City -wide basis and do not otherwise limit or impair the Project approvals
granted in this Agreement unless adopted to meet health and safety concerns.
(e) Any City regulations to which Developer has consented in
writing.
(f) Collection of such fees or exactions as are imposed and set
by governmental entities not controlled by City but which are required to be collected by
City.
(g) Regulations which do not impair the rights and approvals
granted to Developer under this Agreement. For the purposes of this Section 5.2.1 (g),
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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, 37 Ca1.3d 465 (1984), that failure of the parties in
that case to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over the parties' agreement. It is the
intent of Developer and the City to cure that deficiency by expressly acknowledging and
providing that any Subsequent Code Change that purports to limit over time the rate or
timing of development or to alter the sequencing of development phases (whether
adopted or imposed by the City Council or through the initiative or referendum process)
shall not apply to the Property or the Project and shall not prevail over this Agreement.
In particular, but without limiting any of the foregoing, no numerical restriction shall be
placed by the City on the amount of total square feet or the number of buildings,
structures, residential units that can be built each year on the Property except as expressly
provided in this Agreement.
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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 both buildings. 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.
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.
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7.3 Conditions for Diligent Action by the City.
7.3.1 Acceptance and Processing of Technical Permit Applications. The
obligation of the City to accept and diligently process the Technical Permit Applications
which are filed by Developer, and then issue the Technical City Permits, is subject to the
satisfaction of the following conditions:
(a) Developer shall have completed and filed all Technical
Permit Applications which are required under the administrative procedures and policies
of the City which are in effect on the date when the Technical Permit Application is filed;
provided that such procedures and policies are uniformly in force and effect throughout
the City;
(b) Developer shall have paid all processing and permit fees
established by the City in connection with the filing and processing of any Technical
Permit Application which are in effect on the date when the Technical Permit Application
is filed; provided that such fees are uniformly in force and effect throughout the City; and
(c) If required for the particular Technical Permit Application,
Developer shall have obtained the approval of the ARB referred to in Section 6.1 above.
7.3.2 Issuance of a Technical City Permit. The obligation of the City to
issue a Technical City Permit which is the subject of a Technical Permit Application filed
by Developer is subject to the satisfaction of the following conditions (and only such
conditions and no others):
(a) Developer shall have complied with all of its obligations
under this Agreement which are required to be performed prior to or concurrent with the
issuance of the Technical City Permits for the proposed Buildings;
(b) Developer shall have received any permits or approvals
from other governmental agencies which are required by law to be issued prior to or
concurrent with the issuance of the Technical City Permits for the proposed Buildings;
(c) The proposed Buildings conform to the development
standards for such Buildings established in this Agreement. In the event that a proposed
Building is not in conformance with the development standards, Developer shall have the
right to seek any relief from such standards under the procedures then available in the
City; and
(d) The proposed Buildings conform to the Administrative and
Technical Construction Codes of the City (Article VIII, Chapter 1 of the Santa Monica
Municipal Code) (the`°Technical Codeg°) in effect on the date that the Technical Permit
Application is filed.
7.3.3 New Technical Requirements. From time to time, the Cit} 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
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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 Directofs receipt of a
written request for such relief from Developer. Developer is required to supply the
Planning Director with written documentation of the fact that compliance with the New
Technical Requirements cannot be achieved by some other method. Any such relief shall
only be granted to the extent necessary in the Planning Director's determination for
Developer to comply with the New Technical Requirements.
7.4 Duration of Technical City Permits. The duration of Technical City
Permits issued by the City, and any extensions of the time period during which such
Technical City Permits remain valid, shall be established in accordance with the
Technical Codes in effect at the time that the Technical City Permits are issued. Subject
to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall
not preclude or impair Developer from subsequently filing another Technical Permit
Application for the same matter during the Term of this Agreement, which shall be
processed by the City in accordance with the provisions of this ARTICLE 7.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains
building permits for the Project and, at any time after the Outside Construction Start
Date, such building permits expire or are revoked pursuant to the applicable terms of the
SMMC (as the same may be amended from time to time), then Developer may not
subsequently apply for new building permits for the Project without first obtaining the
prior written consent of the Planning Director, which may be granted or withheld in the
Planning Director's sole discretion.
7.5 [Reserved]
ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. Subj ect to the
notice and hearing requirements of the applicable Development Agreement Statutes, this
Agreement may be modified or amended from time to time only with the written consent
of Developer and the City or their successors and assigns in accordance with the
provisions of the SMMC and Section 65868 of the California Government Code.
ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the
Parties hereunder shall be effective as of the date upon which the ordinance approving
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this Agreement becomes effective (the`Effective Datd). The Parties shall execute this
Agreement within ten (10) working days of the Effective Date.
9.2 Term.
9.2.1 Term of Agreement. The term of this Agreement shall commence
on the Effective Date and shall continue for ten (10) years thereafter (the`°Terni), 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 compliancd'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
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reports prepared in connection with such Notice of Breach, all written comments from the
public and all related exhibits concerning such Notice of Breach.
10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City
reasonably concludes on the basis of substantial evidence that Developer has not
demonstrated that it is in good faith compliance with this Agreement, then the City may
issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1 below,
and Developer shall have the opportunity to cure the default identified in the Notice of
Breach during the cure periods and in the manner provided by Section 11.2 and
Section 11.3, as applicable.
10.5 Failure of Periodic Review. The Cites 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 Section 12.
11.1.2 Monetary Breach. In the case of a monetary Breach by Developer,
Developer shall promptly commence to cure the identified Breach and shall complete the
care of such Breach within thirty (3 0) business days after receipt by Developer of the
Notice of Breach; provided that if such monetary Breach is the result of an Excusable
Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer
shall deliver to the City reasonable evidence of the Excusable Delay.
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11.1.3 Non - Monetary Breach. In the case of anon-monetary Breach by
either Party, the alleged defaulting Party shall promptly commence to cure the identified
Breach and shall diligently prosecute such cure to completion; provided that the
defaulting Party shall complete such cure within thirty (30) days after receipt of the
Notice of Breach or provide evidence of Excusable Delay that prevents or delays the
completion of such cure. The thirty (30) day cure period for a non - monetary Breach shall
be extended as is reasonably necessary to remedy such Breach; provided that the alleged
defaulting Party commences such cure promptly after receiving the Notice of Breach and
continuously and diligently pursues such remedy at all times until such Breach is cured.
11. 1.4 Excusable Delay. Notwithstanding anything to the contrary
contained in this Agreement, the Citys 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 Lenders 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 Lenders 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.
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11.3.3 Writ of Mandate. The City and Developer hereby stipulate that
Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance
with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy
any Event of Non - Monetary Default by the City of its obligations and duties under this
Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary
standard or the standard of review applicable to any action of, or approval by, the City
pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by
Developer that the City would not have entered into this Agreement if the City were to be
liable in damages under or with respect to this Agreement or the application thereof.
Consequently, and except for the payment of attorneys' fees and court costs, the City shall
not be liable in damages to Developer and Developer covenants on behalf of itself and its
successors in interest not to sue for or claim any damages:
(a) for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any
right or interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
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
(e) 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
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damages to the City for any nonmonetary default and the City covenants on behalf of
itself not to sue for or claim any damages:
(a) for any non - monetary default hereunder 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`Uearing Noticc). 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).
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(b) If, following the conclusion of the public hearing, the City
Council: (i) determines that an Event of Non - Monetary Default has occurred or the
Developer has not been in good faith compliance with this Agreement pursuant to
Section 10. 1, as applicable and (ii) further determines that Developer (or the Secured
Lender, if applicable) has not cured (within the applicable cure periods) the acts or
omissions that constitute the basis of the determination under clause (i) above or if those
acts or omissions could not be reasonably remedied prior to the public hearing that
Developer (or the Secured Lender) has not in good faith commenced to cure or correct
such acts or omissions prior to the public hearing or is not diligently and continuously
proceeding therewith to completion, then upon making such conclusions, the City
Council may modify or terminate this Agreement. The City cannot unilaterally modify
the provisions of this Agreement pursuant to this Section 11.4. Any such modification
requires the written consent of Developer. If the City Council does not terminate this
Agreement, but proposes a modification to this Agreement as a result of the public
hearing and Developer does not (within five (5) days of receipt) execute and deliver to
the City the form of modification of this Agreement submitted to Developer by the City,
then the City Council may elect to terminate this Agreement at any time after the sixth
day after Developer's receipt of such proposed modification.
11.5 Cessation of Rights and Obligations. If this Agreement is terminated by
the City pursuant to and in accordance with Section 11.4, the rights, duties and
obligations of the Parties under this Agreement shall cease as of the date of such
termination, except only for those rights and obligations that expressly survive the
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 Buildings in accordance with the terms of the
building permit and occupy or use each such Building upon completion for the uses
permitted for that Building as provided in this Agreement. Any Building completed or
occupied pursuant to this Section 11.6 shall be considered legal non - conforming subject
to all City ordinances standards and policies as they then exist governing legal non-
conforming buildings and uses unless the Building otherwise complies with the property
development standards for the district in which it is located and the use is otherwise
permitted or conditionally permitted in the district.
ARTICLE 12
MORTGAGEES
12.1 Encumbrances on the Property. This Agreement shall not prevent or limit
Developer (in its sole discretion), from encumbering the Property (in any manner) or any
portion thereof or any improvement thereon by any mortgage, deed of trust, assignment
of rents or other security device securing financing with respect to the Property (a
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`Mortgage). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a
`Secured Lendef) on the Property shall be entitled to the rights and privileges set forth in
this ARTICLE 12. Any Secured Lender may require from the City certain interpretations
of this Agreement. The City shall from time to time, upon request made by Developer,
meet with Developer and representatives of each of its Secured Lenders to negotiate in
good faith any Secured Lender's request for interpretation of any part of this Agreement.
The City will not unreasonably withhold, condition or delay the delivery to a Secured
Lender of the City's written response to any such requested interpretation.
12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section
12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any
Event of Monetary Default nor any Event of Non - Monetary Default shall defeat, render
invalid, diminish, or impair the lien of any Mortgage made in good faith and for value.
12.1.2 Priority oAgreement. 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 Lenders
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
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period, commence to cure the same and thereafter diligently prosecute such cure to
completion (a "Secured Lender's Cure Period). If Developer has caused an Event of
Monetary Default or an Event of Non - Monetary Default, then each Secured Lender shall
have the right to remedy such Event of Monetary Default or an Event of Non - Monetary
Default, as applicable, or to cause the same to be remedied prior to the conclusion of the
Secured Lendefs Cure Period and otherwise as herein provided. The City shall accept
performance by any Secured Lender of any covenant, condition, or agreement on
Developer's part to be performed hereunder with the same force and effect as though
performed by Developer.
(c) The period of time given to the Secured Lender to cure any
Event of Monetary Default or an Event of Non - Monetary Default by Developer which
reasonably requires that said Secured Lender be in possession of the Property to do so,
shall be deemed extended to include the period of time reasonably required by said
Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver
or otherwise) promptly and with due diligence; provided that during such period all other
obligations of Developer under this Agreement, including, without limitation, payment of
all amounts due, are being duly and promptly performed.
12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under
this Agreement to perform the obligations of Developer's or the affirmative covenants of
Developer's hereunder or to guarantee such performance unless and until such time as a
Secured Lender takes possession or becomes the owner of the estate covered by its
Mortgage. If the Secured Lender takes possession or becomes the owner of any portion
of the Property, then from and after that date, the Secured Lender shall be obligated to
comply with all provisions of this Agreement; provided that the Secured Lender shall not
be responsible to the City for any unpaid monetary obligations of Developer that accrued
prior to the date the Secured Lender became the fee owner of the Property.
(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.
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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`Tattached 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 "Developet'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, attorneys 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.
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14.2 Cit�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 Citys 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, CA 90024Attn: Neil Shekhter_
Fax:
With a CoRY to:
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Development Agreement Document - 1548 6th St - 9 -12 -12
Armbruster Goldsmith & Delvac UP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Attn: 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 Agreement; Conflicts. This Agreement represents the entire
agreement of the Parties. This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotiations or previous
agreements between the Parties or their predecessors in interest with respect to all or any
part of the subject matter hereof. Should any or all of the provisions of this Agreement
be found to be in conflict with any other provision or provisions found in the Existing
Regulations, then the provisions of this Agreement shall prevail. Should any of the
Conditions of Approval set forth in Section B of EXhibit`T°attached hereto conflict with
any of the Mitigation Measures set forth in Section A of Exhibit`Uattached hereto, the
more stringent or exacting requirement shall control.
15.3 Binding Effect. The Parties intend that the provisions of this Agreement
shall constitute covenants which shall run with the land comprising the Property during
the Tenn for the benefit thereof and that the burdens and benefits thereof shall bind and
inure to the benefit of all successors -in- interest to the Parties hereto. Every Party who
now or hereafter owns or acquires any right, title, or interest in or to any portion of the
Project during the Tenn is and shall be conclusively deemed to have consented and
agreed to every provision contained herein, to the extent relevant to said right, title or
interest, whether or not any reference to this Agreement is contained in the instniment 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 Certificato: (a) that this Agreement is in full force and effect,
(b) that this Agreement has not been amended or modified either orally or in writing, or if
so amended, identifying the amendments, (c) whether or not, to the knowledge of the
responding Party, the requesting Party is in Breach or claimed Breach in the performance
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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 Delayg)
for any of the following reasons:
(a) War, insurrection, walk -outs, riots, acts of terrorism,
floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused
performances;
(b) Governmental restrictions or moratoria imposed by the City
or by other governmental entities or the enactment of conflicting State or Federal laws or
regulations;
(c) The imposition of restrictions or moratoria by judicial
decisions or by litigation, contesting the validity, or seeking the enforcement or
clarification of, this Agreement whether instituted by Developer, the City or any other
person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or
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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 Attorne, sue. 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
attomey� fees on any appeal as well as any attorneys' fees incurred in any post judgment
proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid whether
or not such action is prosecuted to judgment. In any case where this Agreement provides
that the City or Developer is entitled to recover attorneys' fees from the other, the Party so
entitled to recover shall be entitled to an amount equal to the fair market value of services
provided by attorneys employed by it as well as any attorneys' fees actually paid by it to
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Development Agreement Document - 1548 6th St - 9 -12 -12
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
Parry 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
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Development Agreement Document - 1548 6th St - 9 -12 -12
(c) the processing of applications for and issuing of all City
Technical Permits requiring the determination of conformance with the Existing
Regulations.
15.15.3 No Revocation. The City shall not revoke or subsequently
disapprove any approval or future approval for the development of the Project or the
Property once issued by the City provided that the development of the Project or the
Property is in accordance with such approval. Any disapproval by the City shall state in
writing the reasons for such disapproval and the suggested actions to be taken in order for
approval to be granted.
15.15.4 Processing During Third Party ag tion. 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 carry out in
good faith the terms of this Agreement.
15.16 Venue. Any legal action or proceeding among the Parties arising out of
this Agreement shall be instituted in the Superior Court of the County of Los Angeles,
State of California, in any other appropriate court in that County, or in the Federal
District Court in the Central District of California.
15.17 Exhibits. The following exhibits which are part of this Agreement are
attached hereto and each of which is incorporated herein by this reference as though set
forth in full:
Exhibit "A' Legal Description of the Property
Exhibit`B' Project Plans
Exhibit "C' Permitted Fees and Exactions
Exhibit`D' Mitigation Measures and Conditions
Exhibit`B' Zoning Ordinance
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Development Agreement Document - 1548 6th St - 9 -12 -12
Exhibit"T [Reserved]
Exhibit" O' [Reserved]
Exhibit`IP Santa Monica Sign Code
Exhibit" P Construction Mitigation Plan
Exhibit" P 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 Performancd) evidencing said completion, termination or revocation and
the release of Developer from further obligations hereunder, except for any further
obligations which survive such completion, termination or revocation. The Certificate of
Performance shall be signed by the appropriate agents of Developer and the City and
shall be recorded against title to the Property in the official records of Los Angeles
County, California. Such Certificate of Performance is not a notice of completion as
referred to in California Civil Code Section 3093.
15.20 Interests of Developer. Developer represents to the City that, as of the
Effective Date, it is the owner of the entire Property, subject to encumbrances, easements,
covenants, conditions, restrictions, and other matters of record.
15.21 Operating Memoranda. The provisions of this Agreement require a close
degree of cooperation between the City and Developer. During the Term of this
Agreement, clarifications to this Agreement and the Existing Regulations may be
appropriate with respect to the details of performance of the City and Developer. If and
when, from time to time, during the term of this Agreement, the City and Developer
agree that such clarifications are necessary or appropriate, they shall effectuate such
clarification through operating memoranda approved in writing by the City and
Developer, which, after execution, shall be attached hereto and become part of this
Agreement and the same may be further clarified from time to time as necessary with
future written approval by the City and Developer. Operating memoranda are not
intended to and cannot constitute an amendment to this Agreement but mere ministerial
clarifications, 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
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Development Agreement Document - 1548 6th St - 9 -12 -12
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
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Development Agreement Document - 1548 6th St - 9 -12 -12
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 nextpage}
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Development Agreement Document - 1548 6th St - 9 -12 -12
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:
1548LUXENMS, 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 Document - 1548 6th St - 9 -12 -12
EXHIBIT "A'
LEGAL DESCRIPTION OF PROPERTY
LOTS`TAND` rIN BLOCK 194 OF TOWN OF SANTA MONICA, IN THE CITY OF
SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 39, PAGE 45 ET SEQ., AND IN BOOK 3
PAGES 80 AND 81, BOTH OF MISCELLANEOUS RECORDS, IN THE OFFICE OF
THE COUNTY RECORDER OF LOS ANGELES COUNTY.
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBIT`B'
PROJECT PLANS
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBIT "C'
PERMITTED FEES AND EXACTIONS
1. Developer shall pay the following fees and charges that are within the Cites
jurisdiction and at the rate in effect at the time payments are made:
(a) Upon submittal for Architectural Review Board (ARB) review, Developer
shall pay City fees for processing of ARB applications;
(b) Upon submittal for plan check, Developer shall pay City plan check fees;
(c) Prior to issuance of construction permits, Developer shall pay the
following City fees and all other standard fees imposed on similar
development projects:
• Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping,
Excavation and Shoring Permit fees (collected by Building & Safety)
• Shoring Tieback fee (collected by EPWM)
• Park and Recreation Facilities Tax (SMMC Section 6.80). Developer
shall pay a fee of $200.00 per residential unit, due and payable at the
time of issuance of a building permit for the construction or placement
of residential units on the subject property.
• 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.
Development Agreement Document - 1548 6th St - 9 -12 -12
2. Prior to issuance of permits for any construction work in the public right -of -way,
or use of public property, Developer shall pay the following City fees:
• Use of Public Property Permit fees (SMMC 7.04.670) (EPWM)
• Utility Excavation Permit fee (SMMC 7.04.010) (EPWM)
• Street Permit fee (SMMC 7.04.790) (EPWM)
3. 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
projecfs 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.
Development Agreement Document - 1548 6th St - 9- 12 -12.
EXHIBIT`T)'
MITIGATION MEASURES AND CONDITIONS
GATION MEASURES —Part A of Exhibit D
[LIST SPECIFIC MITIGA TION MEASURES REQUIRED BYPROJECT
ENVIRONMENTAL REVIEW — NOT APPLICABLE]
CONDITIONS OF APPROVAL — Part B of Exhibit D
Proiect Specific Conditions
The Project shall provide all of the following benefits.
Additional Very Low Income Unit. The Project includes the addition of four
residential units in an existing building. Developer shall provide one (1) Very
Low Income Unit as part of the Project. If one were to calculate the number of
Very Low Income Units required to be provided as ten percent (10 %) of the total
number of new units in the Project, one would conclude that only four - tenths of
one unit would be required pursuant to the City's Affordable Housing Production
Program requirements. In such case, Developer could choose to pay a cash fee to
the City for such fractional affordable unit. Therefore, the commitment by
Developer to provide one (1) Very Low Income Unit as part of the Project
constitutes an additional community benefit, because Developer will not only
provide an entire affordable unit (instead of the cash value of a fractional unit),
this affordable unit will also be provided within the Project and thus create a new
affordable unit for use by Very Low Income residents of the City.
2. Transportation Demand Management Plan. Other than the provisions set forth
below in this Condition of Approval number 2 (the`TDM Plad), 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
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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 Projecfs 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 Projecfs employee trip reduction plan. In
addition, the Citys 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.
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 number 1(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
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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; provided that Developer shall
cause (4) residential units within the Integrated Project to be leased to
tenants with zero (0) parking spaces. Notwithstanding the foregoing, (i)
the tenant in the Very Low Income Unit shall be offered a choice upon
signing the lease to either secure a parking space at no additional charge,
or receive a $150 a month reduction in rent in lieu of a parking space and
(ii) subsequent to the Very Low Income Unit tenant's election of a parking
space or a rental reduction, each of the remaining tenants in the three (3)
other residential units without parking spaces may lease from Developer
any unbundled parking spaces that may become available for use by others
from time to time pursuant to the unbundled parking provisions in this
Section 2.6.2(b)(5), on terms determined by Developer. 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 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 Citys 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 Parking. In furtherance of the LUCFs shared parking policies, the
Integrated Project shall implement the following provisions regarding
shared parking spaces. Developer shall cause the 10 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
Development Agreement Document - 1548 6th St - 9 -12 -12
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
Projecfs 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 28 bicycles, which racks shall be located as
shown on the Project Plans.
It. Residential Tenant Bicycle Racks. The Integrated Project shall contain
bicycle racks to accommodate not fewer than 108 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 1(e) above.
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.
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
number 1(g) above; provided that Developer shall use its commercially
reasonable efforts to relocate the publically accessible bicycle racks to
Development Agreement Document - 1548 6th St - 9 -12 -12
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.
k. Tenants' Use of Car Sharing Technologies. The Integrated Project does
not currently have any parking spaces that are Excess Spaces that could be
allocated to park shared -use cars in the Integrated Project when not in use.
However, if, during the Term of this Agreement, any Excess Spaces
become available in the Integrated Project, then Developer shall allocate
one Excess Space to park a shared -use car. In such case, 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 periods during the term of this Agreement
when an Excess Space is available, 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 a tandem parking stall provided at the Property.
1. 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.
M. 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
Development Agreement Document - 1548 6th St - 9 -12 -12
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.
n. Changes to TDM Plan. Any of the modifications to this Condition of
Approval number 2 (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 as a
Minor Modification.
Traffic Impact Fee. 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 $75,000.00.
Administrative Conditions
4. 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
5. 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.
6. 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
Development Agreement Document - 1548 6th St - 9 -12 -12
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.
9. 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 Monitorine Program
10. The City Planning Division will coordinate a monitoring and reporting program
regarding any required changes to the project made in conjunction with project
approval and any conditions of approval, including those conditions intended to
mitigate or avoid significant effects on the environment. This program shall
include, but is not limited to, ensuring that the City Planning Division itself and
other City divisions and departments such as the Building and Safety Division,
the Department of Environmental and Public Works, the Fire Department, the
Police Department, the Planning and Community Development Department and
the Finance Department are aware of project requirements which must be satisfied
prior to issuance of a Building Permit, Certificate of Occupancy, or other permit,
and that other responsible agencies are also informed of conditions relating to
their responsibilities. Project owner shall demonstrate compliance with conditions
of approval in a written report submitted to the Planning Director and Building
Officer prior to issuance of a Building Permit or Certificate of Occupancy, and, as
applicable, provide periodic reports regarding compliance with such conditions.
Cultural Resources
11. 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.
12. 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 ownefs 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.
Development Agreement Document -1548 6th St - 9 -12 -12
Project Operations
13. 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.
14. The project shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
Final Desien
15. Plans for final design, landscaping, screening, trash enclosures, and signage shall
be subject to review and approval by the Architectural Review Board.
16. Refuse areas, storage areas and mechanical equipment shall be screened in
accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas shall
be of a size adequate to meet on -site need, including recycling. The Architectural
Review Board in its review shall pay particular attention to the screening of such
areas and equipment. Any rooftop mechanical equipment shall be minimized in
height and area, and shall be located in such a way as to minimize noise and
visual impacts to surrounding properties. Unless otherwise approved by the
Architectural Review Board, rooftop mechanical equipment shall be located at
least five feet from the edge of the roof. Except for solar hot water heaters, no
residential water heaters shall be located on the roof.
17. 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.
18. 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.
19. As appropriate, the Architectural Review Board shall require the use of anti -
graffiti materials on surfaces likely to attract graffiti.
Construction Plan Requirements
20. 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
Development Agreement Document - 1548 6th St - 9 -12 -12
21. 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.
22. 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
23. 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.
24. Vehicles hauling dirt or other construction debris from the site shall cover any
open load with a tarpaulin or other secure covering to minimize dust emissions.
Immediately after commencing dirt removal from the site, the general contractor
shall provide the City of Santa Monica with written certification that all trucks
leaving the site are covered in accordance with this condition of approval.
25. 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:
26. 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.
27. 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.
28. All material transported on and off -site shall be securely covered to prevent
excessive amounts of dust.
29. Soils stockpiles shall be covered.
30. Onsite vehicle speeds shall be limited to 15 mph.
Development Agreement Document - 1548 6th St - 9 -12 -12
31. Wheel washers shall be installed where vehicles enter and exit the construction
site onto paved roads or wash off trucks and any equipment leaving the site each
trip.
32. An appointed construction relations officer shall act as a community liaison
concerning onsite construction activity including resolution of issues related to
PM 10 generation.
33. Streets shall be swept at the end of the day using SCAQMD Rule 1186 certified
street sweepers or roadway washing trucks if visible soil is carried onto adjacent
public paved roads (recommend water sweepers with reclaimed water).
34. All active portions the construction site shall be sufficiently watered three times a
day to prevent excessive amounts of dust.
35. Developer shall prepare a notice, subject to the review by the Director of Planning
and Community Development, that lists all construction mitigation requirements,
permitted hours of construction, and identifies a contact person at City Hall as
well as the developer who will respond to complaints related to the proposed
construction. The notice shall be mailed to property owners and residents of the
neighborhood bounded by at least five (5) days
prior to the start of construction.
36. 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.
37. 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.
38. 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.
39. 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.
Development Agreement Document - 1548 6th St - 9 -12 -12
Standard Conditions
40. 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.
41. 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.
42. 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.
43. The property owner shall insure any graffiti on the site is promptly removed
through compliance with the City s graffiti removal program.
Open Space Management
44. Street trees shall be maintained, relocated or provided as required in a manner
consistent with the Citys Community Forest Management Plan 2000, per the
specifications of the Public Landscape Division of the Community Maintenance
Department and the Citys Tree Code (SMMC Chapter 7.40). No street trees shall
be removed without the approval of the Public Landscape Division.
Condition Monitorine
45. 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.
Development Agreement Document - 1548 6th St - 9 -12 -12
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.
Development Agreement Document - 1548 6th St - 9 -12 -12
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.
8. 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
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. [omitted]
14. [omitted]
15. All existing sanitary sewer "house connections to be abandoned, shall be removed
and capped at the" Tconnections.
16. The fire services and domestic services 3- inches or greater must be above ground,
on the applicants 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.
Development Agreement Document - 1548 6th St - 9 -12 -12
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 -W a
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].
Development Agreement Document - 1548 6th St - 9 -12 -12
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 days 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:
Development Agreement Document - 1548 6th St - 9 -12 -12
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]
Development Agreement Document - 1548 6th St - 9 -12 -12
FIRE — CITY OF SANTA MONICA
GENERAL REQUIREMENTS
omitted
California Fire Code/ Santa Monica Fire Department Requirements
40. [omitted].
{remainder ofpage is blank}
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBIT'U
ZONING ORDINANCE
On file with the City Clerk
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBITT'
[Reserved]
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBIT`U'
[RESERVED]
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBIT`IT
SANTA MONICA SIGN CODE
On file with the City Clerk.
Development Agreement Document - 1548 6th St - 9 -12 -12
EXHIBIT`T
CONSTRUCTION MITIGATION PLAN
CON -1 Construction Impact Mitigation Plan.
The applicant shall prepare, implement and maintain a Construction Impact Mitigation
Plan that shall be designed to:
• Prevent material traffic impacts on the surrounding roadway network.
• Minimize parking impacts both to public parking and access to private
parking to the greatest extent practicable.
• Ensure safety for both those constructing the project and the surrounding
community.
• Prevent substantial truck traffic through residential neighborhoods.
The Construction Impact Mitigation Plan shall be subject to review and approval by the
following City departments: Department of Public Works; Fire; Planning and Community
Development; and Police. This review will ensure that the Plan has been designed in
accordance with this mitigation measure. This review shall occur prior to commencement
of any construction staging for the project. The Mitigation Plan shall, at a minimum,
include the following:
Ongoing Requirements Throughout the Duration of Construction
A detailed traffic control plan for work zones shall be maintained 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 projects 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 PW
requirements.
Development Agreement Document - 1548 6th St - 9 -12 -12
• 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.
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 500 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.
Development Agreement Document - 1548 6th St - 9 -12 -12
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/Conditionina.
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.
Development Agreement Document - 1548 6th St - 9 -12 -12
CON-3(b) Fueitive 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 PM 10 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).
Development Agreement Document - 1548 6th St - 9 -12 -12
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: Howard Weinberg, Esq.
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (Agreement) is made
and entered into by and between , LLC, a California limited liability
company (Assignoi`), and a
(Assigned).
RECITALS
A. The City of Santa Monica (Cite 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"Kattached
hereto (the "Project Sitd).
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 Approval).
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 Assignoes 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:
Development Agreement Document - 1548 6th St - 9 -12 -12
Assignment. Assignor hereby assigns and transfers to Assignee all of
Assignofs 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]
Development Agreement Document - 1548 6th St - 9 -12 -12
RECEIPT BY CITY
The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received
by the City of Santa Monica on this day of
CITY OF SANTA MONICA
ME
Planning Director
Development Agreement Document - 1548 6th St - 9 -12 -12
Approved and adopted this 23`d day of October, 2012.
V
Richard Bloom, Mayor
State of California )
County of Los Angeles ) ss.
City of Santa Monica )
I, Sarah P. Gorman, City Clerk of the City of Santa Monica, do hereby certify that
the foregoing Ordinance No. 24150 (CCS) had its introduction on September 11,
2012, and was adopted at the Santa Monica City Council meeting held on
October 23, 2012, by the following vote:
Ayes: Council members: Holbrook, McKeown, O'Connor, O'Day
Mayor Pro Tern Davis, Mayor Bloom
Noes: Council members: None
Absent: Council member: Shriver
A summary of Ordinance No. _2415 (CCS) was duly published pursuant to
California Government Code Section 40806.
ATTEST:
Sarah P. Gorman, City Clerk