O2425CA:f\atty \muni \laws \barry\1318 2 "4 Street Development Agreement0625132d
City Council Meeting: 6 -25 -13 Santa Monica, California
ORDINANCE NUMBER 2—q 1 ' (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 1,320 2ND STREET, LLC.,
A CALIFORNIA LIMITED LIABILITY COMPANY
WHEREAS, 1320 2 "d Street, LLC, a California limited liability corporation
( "Developer ") is the owner of property located at 1318 -1324 2 "d Street; and
WHEREAS, on January 13, 2012, Developer submitted an application for a
development agreement for a new mixed -use development project involving the
construction of a 4 -story building consisting of 53 residential units and approximately
6,700 square feet of ground floor neighborhood serving commercial space with a two -
level subterranean parking; and
WHEREAS, this project is an infill project exempt from the California
Environmental Quality Act pursuant to CEQA Section 21159; 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:
(a) Consistent with LUCE Policy D7.1 of the Downtown District, the proposed
mixed -use project balances a broad mix of uses that creates dynamic activity in both
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the daytime and evening hours including retail and high- density residential uses in the
Downtown.
(b) Consistent with Policy D7.2, the project encourages local- serving uses that
are an integral part of complete neighborhoods and support an overall trip reduction
strategy.
(c) Consistent with Policy D8.7, the project is a mixed -use development with
active ground floor uses that face the boulevard with residential uses located on the
upper floors.
(d) The project will also implement a Transportation Demand Management
(TDM) plan which reduces vehicle trips in the area and associated parking demand
consistent with LUCE Circulation Policy T19.2 which seeks appropriate TDM
requirements for new development.
(e) The project is also consistent with LUCE's overall land use policies by
providing community benefits for the area, including but not limited to, affordable
housing in excess of the Affordable Housing Production Program, a transit
contribution for the downtown that would support transit improvements, an open
space contribution that would support nearby park improvements, a monetary
contribution towards the Colorado Esplanade, a monetary contribution towards the
Big Blue Bus infrastructure, a monetary contribution towards historic preservation
programs, and enhanced LEED certification,
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 1320 2 "d Street, LLC, a California limited liability corporation, is
hereby approved. The City Manager is authorized to execute the attached
Development Agreement.
SECTION 2. Each and every term and condition of the Development
Agreement approved in Section 1 of this Ordinance shall be and is made a part of the
Santa Monica Municipal Code and any appendices thereto. The City Council of the
City of Santa Monica finds that public necessity, public convenience, and general
welfare require that any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Development Agreement, to the extent
of such inconsistencies and no further, be repealed or modified to that extent
necessary to make fully effective the provisions of this Development Agreement.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto, inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, are hereby repealed or modified to that extent
necessary to effect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
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
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have passed this Ordinance, and each and every section, subsection, sentence,
clause, or phrase not declared invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared invalid or
unconstitutional.
SECTION 5. The Mayor shall sign and the City Clerk shall attest to the
passage of this Ordinance. The City Clerk shall cause the same to be published once
in the official newspaper within 15 days after its adoption. This Ordinance shall be
effective 30 days from its adoption.
APPROVED AS TO FORM:
a
EXHIBIT 1
DEVELOPMENT AGREEMENT
Recording Requested By:
City of Santa Monica
When Recorded Mail To:
City of Santa Monica
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, CA 90401
Attention: Senior Land Use Attorney
Space Above Line For Recorder's Use
No Recording Fee Required
California Government Code Section 27383
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF SANTA MONICA
AND
1320 SECOND STREET, LLC
.2013
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TABLE OF CONTENTS
Recitals............................................................................................................
...............................
l
Article1
Definitions ................................................................................ ..............................3
Article 2
Description of the Project ........................................................ ..............................4
2.1
General Description ................................................................ ...............................
4
2.2
Principal Components of the Project ...................................... ...............................
5
2.3
No Obligation to Develop ....................................................... ...............................
5
2.4
Vested Rights ........................................................................... ..............................5
2.5
Permitted Uses ........................................................................ ...............................
7
2.6
Significant Project Features and LUCE Community Benefits ............................10
2.7
Parking .................................................................................... .............................18
2.8
Design ..................................................................................... .............................18
2.9
Contract with City ................................................................... .............................19
Article3
Construction ............................................................................ .............................19
3.1
Construction Mitigation Plan .................................................. .............................19
3.2
Construction Hours ................................................................. .............................19
3.3
Outside Building Permit Issuance Date .................................. .............................19
3.4
Construction Period ................................................................ .............................20
3.5
Damage or Destruction ........................................................... .............................20
Article 4
Project Fees, Exactions and Conditions .................................. .............................20
4.1
Fees, Exactions and Conditions .............................................. .............................20
4.2
Conditions on Modifications ................................................... .............................20
4.3
Implementation of Conditions of Approval .......................... ...............................
20
Article 5
Effect of Agreement on City Laws and Regulations .............. .............................21
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5.1
Development Standards for the Property; Existing Regulations
......................... 21
5.2
Permitted Subsequent Code Changes ................................... ...............................
22
5.3
Common Set of Existing Regulations ..................................... .............................23
5.4
Conflicting Enactments ........................................................... .............................24
5.5
Timing of Development ........................................................ ...............................
24
Article 6
Architectural Review Board ................................................. ...............................
24
6.1
Architectural Review Board Approval ................................. ...............................
24
6.2
[Reserved] ............................................................................. ...............................
24
Article 7
City Technical Permits ............................................................ .............................24
7.1
Definitions ..................................:............................................ .............................24
7.2
Diligent Action by City ......................................................... ...............................
25
7.3
Conditions for Diligent Action by the City ........................... ...............................
25
7.4
Duration of Technical City Permits ...............................................
:..................... 26
7.5
[Reserved] ............................................................................. ...............................
27
7.6
[Reserved] ............................................................................. ...............................
27
Article 8
Amendment and Modification ................................................ .............................27
8.1
Amendment and Modification of Development Agreement ...............................
27
Article9
Term ........................................................................................ .............................27
9.1
Effective Date ....................................................................... ...............................
27
9.2
Term ........................................................................................ .............................27
Article 10
Periodic Review of Compliance ........................:........................ ...............................
27
10.1
City Review .......................................................................... ...............................
27
10.2
Evidence of Good Faith Compliance ...................................... .............................28
10.3
Information to be Provided to Developer ............................... .............................28
10.4
Notice of Breach; Cure Rights .............................................. ...............................
28
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10.5
Failure of Periodic Review ...................................................
............................... 28
10.6
Termination of Development Agreement .............................
............................... 28
10.7
City Cost Recovery .................................................................
.............................28
Article11
Default .....................................................................................
.............................29
11.1
Notice and Cure ....................................................................
............................... 29
11.2
Remedies for Monetary Default ..............................................
.............................29
11.3
Remedies for Non - Monetary Default ...................................
............................... 30
11.4
Modification or Termination Agreement by City .................
............................... 32
11.5
Cessation of Rights and Obligations .....................................
............................... 32
11.6
Completion of Improvements ...............................................
............................... 33
Article12
Mortgagees ..............................................................................
.............................33
12.1
Encumbrances on the Property .............................................
............................... 33
Article 13
Transfers and Assignments .....................................................
.............................35
13.1
Transfers and Assignments .....................................................
.............................35
13.2
Release Upon Transfer ..........................................................
............................... 35
Article14
Indemnity to City ..................................................................
............................... 36
14.1
Indemnity ..............................................................................
............................... 36
14.2
City's Right to Defense .........................................................
............................... 36
Article 15
General Provisions ..................................................................
.............................36
15.1
Notices ..................................................................................
............................... 36
15.2
Entire Agreement; Conflicts .................................................
............................... 37
15.3
Binding Effect .......................................................................
............................... 38
15.4
Agreement Not for Benefit of Third Parties .........................
............................... 38
15.5
No Partnership or Joint Venture ...........................................
............................... 38
15.6
Estoppel Certificates ...............................................................
.............................38
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15.7
Time ........................................................................................ .............................39
15.8
Excusable Delays .................................................................... .............................39
15.9
Governing Law ..................................................................... ...............................
40
15.10
Cooperation in Event of Legal Challenge to Agreement ...... ...............................
40
15.11
Attorneys' Fees ..................................................................... ...............................
40
15.12
Recordation ............................................................................. .............................40
15.13
No Waiver ............................................................................... .............................40
15.14
Construction of this Agreement ............................................ ...............................
40
15.15
Other Governmental Approvals .............................................. .............................41
15.16
Venue ..................................................................................... .............................42
15.17
Exhibits ................................................................................. ...............................
42
15.18
Counterpart Signatures ............................................................ .............................42
15.19
Certificate of Performance ...................................................... .............................42
15.20
Interest of Developer ............................................................. ...............................
43
15.21
Operating Memoranda .......................................................... ...............................
43
15.22
Acknowledgments, Agreements and Assurance on the Part of Developer .........
43
15.23
Not a Public Dedication ........................................................ ...............................
44
15.24
Other Agreements ................................................................. ...............................
44
15.25
Severability and Termination .................................................. .............................44
Exhibit
"A" Legal Description of Property
Exhibit
`B" Project Plans
Exhibit
"C" Permitted Fees and Exactions
Exhibit
"D" Conditions of Approval
Exhibit
"E" SMMC Article 9 (Planning and Zoning)
Exhibit
"F -1" Local Hiring Program for Construction
Exhibit
"F -2" Local Hiring Program for Permanent Employment
Exhibit
"G" [Reserved]
Exhibit
"H" Construction Mitigation Plan
Exhibit
"I" Assignment and Assumption Agreement
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DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement "), dated 2013
( "Effective Date "), is entered into by and between 1320 2nd STREET, LLC, a California
limited liability company ( "Developer "), and the CITY OF SANTA MONICA, a
municipal corporation organized and existing pursuant to the laws of the State of
California and the Charter of the City of Santa Monica (the "City "), with reference to the
following facts:
RECITALS
A. Pursuant to California Government Code Section 65864 et seq., Chapter
9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No.
2356 (collectively, the "Development Agreement Statutes "), the City is authorized to
enter into binding development agreements with persons or entities having a legal or
equitable interest in real property for the development of such real property.
B. Developer is the owner of approximately 15,000 square feet of land
located in the City of Santa Monica, State of California, commonly known as 1318 to
13242 nd Street, as more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Property ").
C. The City has included the Property within the Downtown Core land use
designation, which is also part of the Downtown District, under the City's recently
adopted Land Use and Circulation Element of its General Plan (the "LUCE "). The
Property is located within the BSC -4 (Bayside Commercial District— 4) under the City's
Zoning Ordinance. To aid in the redevelopment of the Property, the City and Developer
desire to allow Developer to construct a mixed -use building with subterranean parking..
D. On January 13, 2012, Developer filed an application for a Development
Agreement, pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.48.020
(the "Development Application "). The Development Application was designated by the
City as Application No. DEV 12001. The Development Application is for the planned
development of the Property with an approximately 46,421 square foot mixed use project
containing 53 residential units, approximately 6,664 square feet of ground floor
commercial space, a two -level subterranean parking garage, and related facilities
(collectively the "Project "). The Project is more fully descried in this Agreement.
E. On April 26, 2011, the City Council adopted Interim Ordinance No 2356
( "IZO "). The City Council extended and /or modified the IZO on several occasions
thereafter. The IZO 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.
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F. Developer has paid all necessary costs and fees associated with the City's
processing of the Development Application and this Agreement.
G. Following filing of the Development Application, the City determined that the
project was exempt from the California Environmental Quality Act ( "CEQA ") pursuant
to CEQA Guideline Section 21159.24.
H. The primary purpose of the Project is to permit Developer to construct a
mixed -use residential and commercial Project that is consistent with the LUCE and that
provides needed housing units and commercial space in the Downtown District. The
Parties desire to enter into this Agreement in conformance with the Development
Agreement Statutes in order to achieve the development of the Project on the Property.
L The City Council has determined that a development agreement is
appropriate for the proposed development of the Property. This Agreement will
(1) eliminate uncertainty in planning for the Project and result in the orderly
development of the Project, (2) assure installation of necessary improvements on the
Property, (3) provide for public infrastructure and services appropriate to development of
the Project, (4) preserve substantial City discretion in reviewing subsequent development
of the Property, (5) secure for the City improvements that benefit the public, and
(6) otherwise achieve the goals and purposes for which the Development Agreement
Statutes were enacted.
J. This Agreement is consistent with the public health, safety, and welfare
needs of the residents of the City and the surrounding region. The City has specifically
considered and approved the impact and benefits of the development of the Project on the
Property in accordance with this Agreement upon the welfare of the region. The Project
will provide a number of community benefits, including without limitation the following:
(i) five (5) moderate income one - bedroom units beyond the minimum AHPP
requirement; ; (ii) sustainable design for the Project (LEED Gold); (iii) electric vehicle
conduit and stubouts; (iv) a monetary contribution towards transportation infrastructure
improvements; (v) a monetary contribution towards open space; (vi) a monetary
contribution towards the Colorado Esplanade improvement; (vii) a monetary contribution
toward Big Blue Bus improvements; (viii) a Transportation Demand Management
program that includes unbundled parking and bicycle parking for residents, employees
and commercial patrons; (ix) roof - mounted photovoltaic solar panels; and (x) a local
hiring provision.
K. The City Council has found that the provisions of this Development
Agreement are consistent with the relevant provisions of (1) City's General Plan,
including the LUCE and (2) the Bayside District Specific Plan.
L. On March 20, 2013 and April 3, 2013, the City's Planning Commission
held duly noticed public hearings on the Development Application, and this Agreement.
At the April 3, 2013 hearing, the Planning Commission recommended that City Council
approve the proposed project generally supporting the recommendation of staff in its
March 20, 2013 staff report. Furthermore, the Commission provided recommendations,
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including but not limited to, additional affordable units, and a LEED Platinum
Certification building status.
M. On May 14, 2013, the City Council held a duly noticed public hearing on
the Development Application, this Agreement and at such hearing it introduced
Ordinance No. for first reading, approving this Agreement.
N. On June 25, 2013, the City Council adopted Ordinance No.
approving this Agreement.
NOW THEREFORE, in consideration for the covenants and conditions
hereinafter set forth, the Parties hereto do hereby agree as follows:
ARTICLE 1
DEFINITIONS
The terms defined below have the meanings in this Agreement as set forth below
unless the context otherwise requires:
1.1 "Agreement" means this Development Agreement entered into between
the City and Developer as of the Effective Date.
1.2 "AR-B" means the City's Architectural Review Board.
1.3 "Building" means the building to be constructed as part of the Project, as
generally depicted in the Project Plans.
1.4 "City Council" means the City Council of the City of Santa Monica, or its
designee.
1.5 "City General Plan" or "General Plan" means the General Plan of the
City of Santa Monica, and all elements thereof including the LUCE, as of the Effective
Date unless otherwise indicated in this Agreement.
1.6 "Discretionary Approvals" are actions which require the exercise of
judgment or a discretionary decision, and which contemplate and authorize the
imposition of revisions or additional conditions, by the City, including any board,
commission, or department of the City and any officer or employee of the City.
Discretionary Approvals do not include Ministerial Approvals.
1.7 "Effective Date" has the meaning set forth in Section 9.1 below.
1.8 "Floor Area" has the meaning as defined in Sections 9.04.02.030.315 and
9.04.0815.060(a)(2) of the Zoning Ordinance, as further modified by Section 3(f) of
Interim Ordinance No. 2417. The maximum allowable Floor Area for the Project is
46,421 square feet, not including the residential floor area discount.
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1.9 "Floor Area Ratio" and FAR" means floor area ratio as defined in
Sections 9.04.02.030.320 and 9.04.08.15.060(a)(2) of the Zoning Ordinance and Section
3(f) of Interim Ordinance No. 2417.
1.10 "Including" means "including, but not limited to."
1.11 "LEED® Rating System" means the Leadership in Energy and
Environmental Design (LEEDO) Green Building Rating System for New Construction &
Major Renovations, adopted by the U.S. Green Building Council in effect at the time of
ARB approval. An alternate version of the rating system or an alternate rating system
may be used with approval of the City's Planning Director.
1.12 "Legal Action" means any action in law or equity.
1.13 "Maximum Floor Area" means 46,421 square feet of floor area.
1.14 "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.
1.15 "Moderate Income One - Bedroom Units" means one - bedroom units set
aside for moderate - income households defined as 80% of the Area Median Income
published from time to time by HUD for the Los Angeles -Long Beach Primary
Metropolitan Statistical Area.
1.16 "Parties" mean both the City and Developer and "Party" means either
the City or Developer, as applicable.
1.17 "Planning Director" means the Planning Director of the City of Santa
Monica, or his or her designee.
1.18 "Project Plans" mean the plans for the Project that are attached to this
Agreement as Exhibit `B."
1.19 "Very -Low Income Studio Units" means studio units set aside for very -
low income households as defined by Santa Monica Municipal Code Section 9.56.020.
1.20 "Zoning Ordinance" means the City of Santa Monica Comprehensive
Land Use and Zoning Ordinance (Chapter 9.04 of the SMMC), and any applicable
Interim Zoning Ordinance, as the same are in effect on the Effective Date, is set forth in
its entirety as part of Exhibit "E" (Planning and Zoning).
ARTICLE 2
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DESCRIPTION OF THE PROJECT
2.1 General Description. The Project includes all aspects of the proposed
development of the Property as more particularly described in this Agreement and on the
Project Plans. If there is a conflict or inconsistency between the text of this Agreement
and the Project Plans, the Project Plans will prevail; provided, however, that omissions
from the Project Plans shall not constitute a conflict or inconsistency with the text of this
Agreement.
2.2 Principal Components of the Project. The Project consists of the
following principal components, as well as the other components delineated in the Project
Plans, all of which are hereby approved by the City subject to the other provisions of this
Agreement: (a) fifty -three (53) dwelling units, consisting of forty -three (43) market rate
units, five (5) very low income studios units, and five (5) moderate income one - bedroom
units, (b) approximately 6,664 square feet of Floor Area of commercial use, and (c) sixty -
six (66) 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 conditions of approval 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
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the Project site. The Project Plans to be maintained by the City and Developer shall be in
a half -size set. Further detailed plans for the construction of the Building and
improvements, including, without limitation, structural plans and working drawings shall
be prepared by Developer subsequent to the Effective Date based upon the Project Plans.
2.4.2 Minor Modifications to Project. Developer with the approval of
the Planning Director, may make minor changes to the Project or Project Plans ( "Minor
Modifications ") without amending this Agreement; provided that the Planning Director
makes the following specific findings that the Minor Modifications: (i) are consistent
with the Project's approvals as approved by the City Council; (ii) are consistent with the
provisions, purposes and goals of this Agreement; (iii) are not detrimental to the public
health, safety, convenience or general welfare; and (iv) will not significantly and
adversely affect the public benefits associated with the Project. The Planning Director
shall notify the Planning Commission in writing of any Minor Modifications approved
pursuant to this Section 2.4.2. Any proposed change which the Planning Director denies
as not qualifying for a Minor Modification based on the above findings must be
processed as a Major Modification.
2.4.3 Modifications Requiring Amendment to this Agreement.
Developer shall not make any "Major Modifications" (defined below) to the Project
without first amending this Agreement to permit such Major Modifications. A "Major
Modification" means the following:
(a) Reduction of any setback of the Project, as depicted on the
Project Plans, if by such reduction the applicable setback would be less than is permitted
in the applicable zoning district under the Zoning Ordinance in effect on the date such
modification is applied for;
(b) Any change in use not consistent with the permitted uses
defined in Section 2.5 below;
(c) A reduction in the number of Rental Housing units
specified in Section 2.2 by more than 5 units;
(d) Any increase in the number of compact parking spaces
shown on the Project Plans by more than 10 percent (10 %) above the amount provided
for in Section 2.7; or any decrease in the number of parking spaces below 60;
(e) Any material change in the number or location of curb cuts
shown on the Project Plans;
(f) Any variation in the design, massing or building
configuration, including but not limited to, floor area and building height, that renders
such aspects out of substantial compliance with the Project Plans after ARB Approval;
and
(g) Any change that would substantially reduce or alter the
community benefits or significant project features as set forth in Section 2.6.
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(h) Any increase or decrease in the number of bedrooms per
residential unit.
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. The Planning Director shall not
unreasonably withhold, condition, or delay its approval of a request for such Minor
Modification. The City may impose fees, exactions, conditions, and mitigation measures
in connection with its approval of a Minor or Major Modification, subject to any
applicable law. Notwithstanding anything to the contrary herein or in the Existing
Regulations, if the Planning Director approves a Minor Modification or if the City
approves a Major Modification (and the corresponding amendment to this Agreement for
such Major Modification), as the case may be, Developer shall not be required to obtain
any other Discretionary Approvals for such modification, except for ARB approval, in
the case of certain Major Modifications.
2.4.5 Right to Develop. Subject to the provisions of Section 3.3 below,
during the Term (as defined in ARTICLE 9 below) of this Development Agreement,
Developer shall have the vested rights (the "Vested Rights ") to (a) develop and construct
the Project in accordance with the following: (i) the Project Plans (as the same may be
modified from time to time in accordance with this Agreement); (ii) any Minor
Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications
which are approved pursuant to Section 2.4.3; and (iv) the requirements and obligations
of Developer related to the improvements which are specifically set forth in this
Agreement, and (b) use and occupy the Project for the permitted uses set forth in
Section 2.5. Except for any required approvals from the ARB pursuant to Section 6.1 of
this Agreement, the City shall have no further discretion over the elements of the Project
which have been delineated in the Project Plans (as the same may be modified from time
to time in accordance with this Agreement).
2.5 Permitted Uses. The City approves the following permitted uses for the
Project:
2.5.1 Above the Ground Floor: Rental Housing.
2.5.2 On the Ground Floor: The following uses shall be permitted on the
ground floor: (a) rental housing, and (b) any non - residential uses permitted by the Zoning
Ordinance in effect at the time the use is established, provided that all such uses shall be
primarily neighborhood serving goods, services, or retail uses and shall be subject to
Section 2.5.5 (Limitation on Non - residential Uses). These neighborhood- serving
nonresidential uses shall be small -scale general or specialty establishments primarily
serving residents or employees of the neighborhood, including guests of hotels located in
the neighborhood ( "Neighborhood Serving Uses "). A determination that a use
constitutes a "Neighborhood Serving Use" shall be rendered by the City at the time of
issuance of a business license for each such individual use and not thereafter.
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Restaurants are automatically to be deemed "Neighborhood Serving Uses." For purposes
of this Agreement, given the Property's location in the Downtown Core, Neighborhood
Serving Uses of not more than 6,500 square feet of usable area, not including
subterranean storage areas, the transformer area, meter area, or refuse area, shall be
deemed "small scale establishments."
2.5.3 Conditionally Permitted Uses. Conditionally_Permitted Uses shall
be all non - residential uses that are identified as conditionally permitted uses in the
Zoning Ordinance in effect at the time the use is established provided that all such uses
shall be Neighborhood Serving Uses, as defined in Section 2.5.2. Conditionally
Permitted Uses may commence operating at the Project upon issuance of a Conditional
Use Permit ( "CUP ") in accordance with the procedures established in the Zoning
Ordinance and the issuance of a business license. Conditionally Permitted Uses are not
permitted above the ground floor.
2.5.4 Other Uses Subject to Discretionary City Planning Approvals. In
addition to the Permitted Uses and Conditionally Permitted Uses, Developer may seek a
discretionary planning approval for ground floor uses that are allowed by any other City
discretionary process as provided in the Zoning Ordinance in effect when the use is
sought to be established, provided that all such uses shall be Neighborhood Serving Uses
as defined in Section 2.5.2 and shall be subject to Section 2.5.5. Such uses (a) may not
commence until the requisite City discretionary planning approval and a business license
are obtained and (b) are not permitted above the ground floor.
2.5.5 Limitation on Non - Residential Uses. Notwithstanding the above,
in no event shall the Project's non - residential uses exceed 15 percent (15 %) of the
Project's total Floor Area.
2.5.6 Alcoholic Beverage Permits.
(a) In the event Developer or a business operator proposes a
new business or use dispensing for sale or other consideration, alcoholic beverages,
including beer, wine, malt beverages, and distilled spirits for on -site or off -site
consumption, a Conditional Use Permit shall be required except for Restaurants
complying with Section (b) below. No Conditional Use Permit shall be required for
catered events for which Developer obtains the permits then required for such events.
(b) Restaurants which offer alcoholic beverages including beer
or wine incidental to meal service shall be exempt from the provisions of Section
9.04.10.18 of the Municipal Code, provided that the operator of the Restaurant (or
Developer if Developer is the applicant) agrees in writing to comply with all of the
following criteria and conditions:
1. The primary use of the Restaurant premises shall be
for sit -down meal service to patrons. Alcohol shall not be served to persons except those
intending to purchase meals.
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2. If a counter service area is provided in the
Restaurant, a patron shall not be permitted to sit at the counter unless the patron is
ordering a meal in the same manner as patrons ordering meals at the table seating. The
seats located around the counter service area cannot be used as a waiting area where
patrons may drink before being seated or as a bar where beverages only are served.
3. Window or other signage visible from the public
right -of -way that advertises the Restaurant's beer or alcohol shall not be permitted.
4. Customers shall be permitted to order meals at all
times and at all areas of the Restaurant where alcohol is being served. The Restaurant
shall serve food to patrons during all hours the Restaurant is open for customers.
5. The Restaurant shall maintain a kitchen or food -
serving area in which a variety of food is prepared on the premises.
6. Take out service from the Restaurant shall only be
incidental to the primary sit -down use.
7. No alcoholic beverage shall be sold for
consumption beyond the Restaurant premises.
8. Except for special events, alcohol shall not be
served by the Restaurant in any disposable containers such as disposable plastic or paper
cups.
9. No video or other amusement games shall be
permitted in the Restaurant.
10. No dancing is permitted at the Restaurant. Live
entertainment may only be permitted in the manner set forth in Section 9.04.02.030.730
of the Municipal Code.
11. Any minimum purchase requirement may be
satisfied by the purchase of beverages or food.
12. The primary use of any outdoor dining area shall be
for seated meal service. Patrons who are standing in the outdoor seating area shall not be
served.
13. The Restaurant operation shall at all times be
conducted in a manner not detrimental to surrounding properties by reason of lights,
noise, activities or other actions. The Restaurant operator shall control noisy patrons
leaving the restaurant.
14. The permitted hours of alcoholic beverage service
shall be nine a.m. to twelve midnight Sunday through Thursday, and nine a.m. to one
a.m. Friday and Saturday with complete closure and all Restaurant employees vacated
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from the building by one a.m. Sunday through Thursday, and two a.m. Friday and
Saturday. All alcoholic beverages must be removed from the outdoor dining area no later
than twelve midnight. No after -hours operation of the Restaurant is permitted.
15. No more than thirty -five percent (35 %) of the
Restaurant's total gross revenues per year shall be from alcohol sales. The Restaurant
operator shall maintain records of gross revenue sources which shall be submitted
annually to the City's Planning Division at the beginning of the calendar year and also
available to the City and the California Department of State Alcoholic Beverage Control
( "ABC ") upon request.
16. Prior to occupancy of the Restaurant, a Restaurant
security plan shall be submitted to the Chief of Police for review and approval. The plan
shall address both physical and operational security issues.
17. Prior to occupancy, the Restaurant operator shall
submit a plan for approval by the Planning Director regarding its employee alcohol
awareness training programs and policies. The plan shall outline a mandatory alcohol -
awareness training program for all Restaurant employees having contact with the public
and shall state management's policies addressing alcohol consumption and inebriation.
The program shall require all Restaurant employees having contact with the public to
complete an ABC - sponsored alcohol awareness training program within ninety days of
the effective date of the exemption determination. In the case of new Restaurant
employees, the employees shall attend the alcohol awareness training within ninety days
of hiring. In the event the ABC no longer sponsors an alcohol awareness training
program, all Restaurant employees having contact with the public shall complete an
alternative program approved by the Planning Director. The Restaurant operator shall
provide the City with an annual report regarding compliance with this requirement. The
Restaurant operator shall be subject to any future citywide alcohol awareness training
program affecting similar establishments.
18. Within thirty days from the date of approval of this
exemption, the Restaurant applicant shall provide a copy of the signed exemption to the
local office of the State ABC.
19. Prior to occupancy, the Restaurant operator shall
submit a plan describing the establishment's designated driver program, which shall be
offered by the operator to the establishment's patrons. The plan shall specify how the
Restaurant operator will inform patrons of the program, such as offering on the menu a
free non - alcoholic drink for every party of two or more ordering alcoholic beverages.
2.6 Significant Project Features and LUCE Community Benefits. The
significant project features and LUCE community benefits identified below in this
Section 2.6 shall be achieved and developed in accordance with the terms of this
Agreement.
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2.6.1 Significant Project Features. Set forth below in this Section 16.1
are the significant project features that will be provided to the City: (i) increased tax
revenues; (ii) aesthetic enhancement to the Downtown Core with development of a well -
designed mixed use development; (iii) an estimated one- hundred (100) new design and
construction related employment opportunities; (iv) developer fees for cultural arts; (v)
developer fees for child care facilities; (vi) installation of standard water and wastewater
reduction fixtures for the Project as legally applicable; (vii) various standard public
improvements and fees; and (viii) five (5) on -site very low income studio housing units
provided in accordance with the City's Affordable Housing Production Program
requirements.
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 Affordable Housing Units. In addition to the
five (5) very low income studio housing units provided in satisfaction of the City's
Affordable Housing Production Program requirements, the Developer will provide an
additional five (5) moderate income one - bedroom units, for a total of ten (10) affordable
housing units in the Project. All ten (10) affordable housing units shall be deed restricted
in accordance with the City's Affordable Housing Production Program.
(b) Sustainable Design Features: LEEDS Gold Requirement.
Developer shall retain the services of an accredited professional (the "LEEDS
Professional) to consult with Developer regarding inclusion of sustainable design
features into the Project. Developer shall design the Project so that, at a minimum, the
Project shall have the number of points that would be commensurate with achieving
LEEDS "Gold" certification under a LEEDS Rating System (the "Sustainable Design
Status "). For purpose of clarity, Developer shall design the Project in a manner that
achieves the Sustainable Design Status; provided, however, that Developer shall not be
required to pay to the Green Building Certification Institute the fees required to obtain a
LEED® certificate. Developer shall confirm to the City that the design for the Project
has achieved the Sustainable Design Status in accordance with the following
requirements:
1. Prior to the submission of plans for Architecture
Review Board review, Developer shall submit a preliminary checklist of anticipated
LEEDS credits (that shall be prepared by the LEEDS professional) for review by the
City, along with a narrative to demonstrate that the Project is likely to achieve the
Sustainable Design Status.
2. Prior to issuance of a building permit, Developer
shall grant access to the City's Green Building Program Advisor as a "Project Team
Manager" to the project's documentation in the LEED Online system. The City's Green
Program Advisor will use this online documentation to verify that the project is
reasonably likely to achieve the Sustainable Design Status.
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3. Prior to issuance of a final Certificate of
Occupancy for the Project, Developer shall provide to the City certification from the
LEED® Professional confirming that the Project has achieved Sustainable Design Status.
4. Notwithstanding the foregoing, if the City has not
verified that the constructed Project has achieved the Sustainable Design Status, the City
shall nonetheless issue a temporary Certificate of Occupancy for the Project (assuming
that the Project is otherwise entitled to receive a temporary Certificate of Occupancy).
The temporary Certificate of Occupancy shall be converted to a final Certificate of
Occupancy once the constructed Project has achieved the Sustainable Design Status.
5. If the Project does not achieve Sustainable Design
Status, Developer shall ensure that the Project achieves certification to the Gold level
under the LEED Existing Buildings Operations & Maintenance (LEED EBOM) rating
system that is current at the time that the temporary Certificate of Occupancy was issued
for the Project. Developer shall ensure that the Project achieves the Gold level LEED
EBOM certification no later than 2 years after the temporary Certificate of Occupancy
was issued for the Project.
(c) Transportation Infrastructure Contribution. Developer shall
pay to the City, prior to obtaining a building permit for the Project, the sum of one
hundred and twenty -five thousand four- hundred and ninety three dollars ($125,493) to be
used by the City for transportation infrastructure improvements.
(d) Esplanade Contribution. Developer shall pay to the City,
prior to obtaining a building permit for the Project, the sum of one hundred and twenty
five thousand dollars ($125,000) to be used by the City for the Colorado Esplanade
public improvement project.
(e) Open Space Contribution. Developer shall pay to the City,
prior to obtaining a building permit for the Project, the sum of two hundred and twenty -
five thousand dollars ($225,000) to be used by the City for public open space
improvements.
(f) Big Blue Bus Contribution. Developer shall pay to the
City, prior to obtaining a building permit for the Project, the sum of twenty five thousand
dollars ($25,000) to be used by the City for the Big Blue Bus transportation system.
(g) Historic Preservation Contribution. Prior to obtaining a
building permit for the Project, Developer shall create a separate, interest - bearing trust
fund and make a contribution in the amount of twenty five thousand dollars ($25,000).
The monies available in this fund shall be used exclusively for historic preservation
programs for the Downtown area in the City. These monies shall be applied for and
distributed in accordance with a process, to be established by the Planning Director,
whereby those entities that are exclusively devoted to historic preservation may make an
application to receive distribution of some or all of the trust funds.
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(h) Transportation Demand Management ( "TDM ") Plan.
Developer shall implement and maintain the following Transportation Demand
Management Plan ( "TDM Plan "):
Measures Applicable to Entire Project (Commercial
and Residential Elements):
A. Transportation Information Center. The
Developer shall maintain, for the life of the Project, a Transportation Information Center
( "TIC'). The location of the TIC shall be mutually agreed upon by the City's
Transportation Demand Program Manager and the Developer prior to the City's issuance
of a certificate of occupancy for the Building, and may be relocated from time to time
thereafter upon mutual agreement of the Developer (or Developer's successor in interest)
and the Transportation Demand Program Manager. The TIC shall include information
for employees, visitors and residents about:
• Local public transit services, including current maps, bus lines, light rail
lines, fare information, schedules for public transit routes serving the Project, telephone
numbers and website links for referrals on transportation information, including numbers
for the regional ridesharing agency, vanpool providers, ridematching and local transit
operators, ridesharing promotional material supplied by commuter - oriented organizations
and shuttles; and
• Bicycle facilities, including routes, rental and sales locations, on -site
bicycle facilities, bicycle safety information and the shower facility for the commercial
tenants of the Project.
The TIC shall also include a list of facilities available for carpoolers, vanpoolers,
bicyclists, transit riders and pedestrians at the site, including locations of EV charging
stations, and car share and bike share locations. Walking maps and information about
local services, restaurants, movie theaters and recreational activities within walking
distance of the Project shall also be made available. Such transportation information
shall be provided on -site, regardless of whether also provided on a website.
B. Unbundled Parking. Developer shall lease
(a) its parking to residential tenants separately from the residential units and (b) its
employee parking to commercial tenants separately from the commercial space. Such
parking shall be leased at market rates established by Developer from time to time.
However, Developer shall offer a parking space for the tenant(s) of the affordable units at
no additional cost, and shall provide a $100 rent reduction if the affordable unit tenant(s)
declines a parking space. Developer may, subject to the Planning Director's approval,
reconfigure the parking spaces and operations from time -to -time in order to facilitate
unbundling of parking. Developer shall require in all tenant leases it executes as landlord
that each tenant charge its employees for parking and that all subleases contain this same
provision.
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C. Public Bicycle Parking. Developer shall
provide bicycle parking for public use in the amount of seven (7) short-term bicycle
parking spaces for commercial patrons, and six (6) short-term bicycle spaces for resident
visitors (13 total public bike spaces), as shown on the Project Plans.
D. Marketing. Developer shall promote
ridesharing quarterly_through newsletters or other communications to tenants, both
residential and commercial. Furthermore, Developer shall hold at least one rideshare
event annually for residential tenants and commercial employees of the Project, which
may be provided in conjunction with the contemplated TMA.
E. Transportation Coordinator. Developer
shall designate an existing employee as the "Transportation Coordinator" to be
responsible for implementing, maintaining and monitoring the TDM Plan. Once at least
50% of the residential units are occupied, the Transportation Coordinator must dedicate a
minimum of fifteen hours per week to overseeing the TDM Plan. The Transportation
Coordinator's contact information shall be provided to the City and updated as necessary.
The Transportation Coordinator shall be responsible for promoting the TDM Plan to
employees and residents, updating information boards /websites, offering carpool and
vanpool matching services and assisting with route planning and will be the point of
contact for administration of the annual survey and TDM Plan report required by this
Agreement, in addition to any other services the Transportation Coordinator may perform
at the Project for Developer. Transportation Coordinator services may be provided
through the TMA contemplated in Section 2(13) below.
2. Measures Applicable to Project's Commercial
Component Only:
A. Target AVR. For employees of the
commercial tenants, Developer shall achieve an average vehicle ridership ( "AVR ") of 2.0
by the third year after the City's issuance of a certificate of occupancy for the Project and
the 2.0 AVR shall continue to be achieved and maintained thereafter. SMMC Chapter
9.16 in force and effect as of the Effective Date, shall govern how the AVR is calculated.
Developer will determine its AVR through employee surveys for one consecutive week
each calendar year beginning the first year the commercial component is at least 50%
occupied. Developer shall submit such baseline survey to the City at the time of
submittal of its annual compliance report for this Agreement. The City shall monitor the
TDM Plan performance as part of the City's Periodic Review for the Project. If during
any annual evaluation of the Project's employee trip reduction plan, the AVR
requirement has not been achieved for the Project, then Developer shall propose
modifications to the TDM Plan that Developer considers likely to achieve the AVR
requirement by the date of the next annual evaluation of the Project's employee trip
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reduction plan. In addition, the City's Planning Director may recommend feasible
modifications to the TDM Plan. Failure to achieve the AVR performance standard as
provided in this Section A will not constitute a Default within the meaning of the
Agreement so long as Developer is working cooperatively with the City and taking all
feasible steps to achieve compliance. The term "feasible" shall have the meaning given
that term in Section 21061.1 of the California Public Resources Code.
For purposes of determining AVR, the survey must be conducted in accordance with
Section 9.16.070(d)(2)(1) of the Zoning Ordinance except to the extent modified by this
Agreement below: The survey must be taken over five consecutive days during which
the majority of employees are scheduled to arrive at or leave the worksite. The days
chosen cannot contain a holiday and cannot occur during `Rideshare Week' or other
`event' weeks (i.e., Bicycle Week, Walk to Work Week, Transit Week, etc.). This survey
must have a minimum response rate of seventy -five percent of employees who report to
or leave work between six a.m. and ten a.m., inclusive, and seventy -five percent of
employees who report to or leave work between three p.m. and seven p.m., inclusive.
Employers that achieve a ninety percent or better survey response rate for the a.m. or
p.m. window may count the `no- survey responses' as `other' when calculating their
AVR.
The procedure for calculating AVR at a worksite shall be as follows:
i. The AVR calculation shall be based
on data obtained from an employee survey as defined in Section 9.16.070(d)(2) of the
Zoning Ordinance, except as provided herein.
ii. AVR shall be calculated by dividing
the number of employees who report to or leave the worksite by the number of vehicles
arriving at or leaving the worksite during the peak periods. All employees who report to
or leave the worksite that are not accounted for by the employee survey shall be
calculated as one employee per vehicle arriving at or leaving the worksite. Employees
walking, bicycling, telecommuting, using public transit, arriving at the worksite in a zero
emission vehicle, or utilizing other shared ride shuttle services for at least 75% of their
commute shall be counted as employees arriving at or leaving the worksite without
vehicles. Employees telecommuting or on their day off under a recognized compressed
work week schedule shall also be counted as employees arriving at or leaving the
worksite without vehicles. Motorcycles shall be counted as vehicles.
iii. A child or student may be calculated
in the AVR as an additional passenger in the carpool /vanpool if the child or student
travels in the car /van to a worksite or school /childcare facility for the majority (at least
fifty -one percent) of the total commute.
iv. If two or more employees from
different employers commute in the same vehicle, each employer must account for a
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proportional share of the vehicle consistent with the number of employees that employer
has in the vehicle.
V. Any employee dropped off at a
worksite shall count as arriving in a carpool /vanpool only if the driver of the
carpool /vanpool is continuing on to his/her worksite.
vi. Any employee telecommuting at
home, off -site, or at a telecommuting center for a full work day, eliminating the trip to
work or reducing the total travel distance by at least fifty -one percent shall be calculated
as if the employee arrived at the worksite in no vehicle.
vii. Zero emission vehicles (electric
vehicles) shall be calculated as zero vehicles arriving at the worksite.
Furthermore, the definition of AVR contained in SMMC Section 9.16.030, in force and
effect as of the Effective Date, shall govern how AVR is calculated. That definition
reads as follows:
"The total number of employees who report to or leave the worksite or another job -
related activity during the peak periods divided by the number of vehicles driven by these
employees over that five -day period. The AVR calculation requires that the five -day
period must represent the five days during which the majority of employees are
scheduled to arrive at the worksite. The hours and days chosen must be consecutive. The
averaging period cannot contain a holiday and shall represent a normal situation so that a
projection of the average vehicle ridership during the year is obtained."
B. Transportation Demand Management
Association. The property owner and building tenants shall be required to participate in
the establishment of a Transportation Demand Management Association ( "TMA ") that
may be defined by the City. TMAs provide employees, businesses, and visitors of an
area with resources to increase the amount of trips taken by transit, walking, bicycling
and carpooling. If a TMA is formed in the City, Developer shall participate as a full dues
paying member of the TMA. Developer shall require in all leases it executes as landlord
for space within the Project that building tenants be required to participate in the TMA
and that all subleases contain this same provision. Developer may elect to provide some
or all of the services required by this Section 2.6.2(h) through the TMA, in consultation
with the City's Transportation Demand Program Manager.
C. Employee Transit Subsidy In Lieu of
Parking. Developer shall require in all tenant leases it executes as landlord that each
tenant offer its employees who do not purchase monthly automobile parking in the
Project a one month long Metro EZ Transit Pass (or equivalent multi- agency monthly
transit pass) at no cost, with such passes provided on -site.
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D. Employee Secure Bicycle Storage.
Developer shall provide secure bicycle parking for commercial employees in the amount
of four (4) long -term spaces as shown on the Project Plans. For the purpose of this
Section, secure bicycle parking shall mean bicycle lockers, an attended cage, or a secure
parking area. If the secure bicycle storage is not secure individual bicycle lockers,
commercial employee secure bicycle storage shall be provided in an area separate from
the secure bicycle storage for residents.
E. Employee Showers and Locker Facilities.
Two (2) single shower and locker facilities shall be provided for employees of
commercial uses on site who bicycle or use another active means, powered by human
propulsion, of getting to work or who exercise during the work day.
F. Employee Flex -Time Schedule. The
Developer shall require in all commercial leases it executes as landlord for space within
the Project that, when commercially feasible, employers shall permit employees within
the Project to adjust their work hours in order to accommodate public transit schedules,
rideshare arrangements, or off -peak hour commuting.
G. Employee Guaranteed Return Trip. The
Developer shall require in all leases it executes as landlord for space within the Project
that tenants provide employees who rideshare (this includes transit riders, vanpoolers,
walkers; carpool), with a return trip to their point of commute origin at no additional
cost to the employee, when a personal emergency situation, such as personal and
family illness or injury, requires it. Developer, or Developer's successor in interest,
shall be responsible for ensuring this obligation is satisfied. The employee guaranteed
return trip may be provided through the TMA contemplated in Section 2.6.2(h)(2)(B)
above.
Measures Applicable to Project's Residential
Component Only:
A. Transit Welcome Package for Residents.
The Developer shall provide new residents of the rental housing units of the Project with
a Resident Transit Welcome Package (RTWP). One RTWP shall be provided to each
unit upon the commencement of a new tenancy. The RTWP at a minimum will include
one voucher good for a Metro EZ Transit Pass or equivalent multi- agency pass valid for
at least the first month of the tenant's residency, as well as area bus /rail transit route
information. The RTWP will also inform residents about the Transit Information Center
discussed in Section LA above and explain how to access the Transit Information Center.
B. Marketing and Outreach to Downtown
Employers and Employees. Developer shall prepare and implement a marketing and
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outreach plan designed to notify Downtown employers and their employees of the
Project's residential component for the purpose of encouraging those that work in the
Downtown area to consider residing in the Project. Such plan shall be subject to
reasonable approval by the Planning Director. Developer shall market these residential
units exclusively to downtown employers and their employees for a period of 90 days
when these units are initially offered for rent. As residential units become vacant,
Developer shall make reasonable efforts to contact Downtown employers and their
employees for the purpose of informing them of such vacancies and the opportunity to
live closer to their places of employment.
C. Convenient and Secure Bicycle Storage for
Residents. The Developer shall provide a convenient and secure bicycle parking area for
residents of the Project in the Subterranean Space as shown on the Project Plans that shall
have sufficient space to accommodate one (1) bicycle for each bedroom at the Project
(with a minimum of one (1) space per unit). For the purposes of this Section, secure
bicycle parking shall mean bicycle lockers, an attended cage, or a secure parking room.
If the secure bicycle storage is not secure individual bicycle lockers, residential secure
bicycle storage shall be provided in an area separate from the secure bicycle storage for
commercial employees. Furthermore, the Developer shall provide 53 additional bike
racks for residents above vehicular parking spaces in the subterranean garage.
4. Changes to TDM Plan. Subject to the reasonable
approval of the City's Planning Director, the Developer may: (a) modify this TDM Plan
provided the TDM Plan, as modified, can be demonstrated as equal or superior in its
effectiveness at mitigating the traffic- generating effects of this Project or (b) modify this
TDM Plan to help the Project achieve the applicable AVR standards. The Planning
Director may also propose modifications to the TDM Plan to achieve the applicable AVR
standards. Changes to the TDM Plan in accordance with this Section shall be treated as
Minor Modifications pursuant to Section 2.4.2.
5. New TDM Ordinance. If the City adopts a new
ordinance of general application that updates or replaces Chapter 9.16 of the Zoning
Ordinance and that applies to the geographic area in which the Property is located ( "New
TDM Ordinance "), then, subject to the Planning Director's approval in his or her sole and
absolute discretion, Developer may elect to comply with the new TDM Ordinance in lieu
of complying with the TDM Plan outlined in this Agreement.
(i) Electric Vehicle Parking: Developer shall install stub -outs
in the Project for five (5) electric vehicle charging stations for the purpose of promoting
electric car usage and reduced vehicular emissions.
0) Photovoltaic Panels: Developer shall install photovoltaic
solar panels on the roof of the Project, as shown on the plans.
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(k) Local Hiring Program: Developer shall implement and
monitor the Local Hiring Program as set forth in Exhibit' F."
(1) Project Design. As a result of this Agreement, there are
enhanced elements of the Project design, including an Enhanced Walkway Area as shown
on the Project Plans. Developer shall make the Enhanced Walkway Area accessible to
the public at all times, except between the hours of 2:00am through 6:00 am. The public
use of that certain area designated on the Project Plans as "Enhanced Walkway" shall be:
(i) consistent with the terms and conditions of this Agreement; (ii) solely for pedestrian
access to and passive use of the Enhanced Walkway by the public, including walking,
strolling, and similar activity; and (iii) compatible with Developer's development, use
and enjoyment of the Project. No use other than pedestrian access to and passive use of
the Enhanced Walkway by the public shall be permitted on the Enhanced Walkway.
Notwithstanding the above, Developer may limit public access to the Enhanced Walkway
Area during other hours, but only if the Enhanced Walkway area is utilized for outdoor
dining.
2.7 Prohibited Activities in the Enhanced Walkway. Nothing in this
Agreement shall give members of the public the right, without the prior written consent
of Developer, which consent may be conditioned or withheld by Developer in
Developer's sole discretion, to engage in any other activity on the Enhanced Walkway,
including, without limitation any of the following: (i) cooking, dispensing or preparing
food; (ii) selling any item or engaging in the solicitation of money, signatures, or other
goods or services; (iii) sleeping or staying overnight; (iv) engaging in political or other
demonstrations; (v) using sound amplifying equipment; or (vi) engaging in any illegal,
dangerous or other activity that Developer reasonably deems to be inconsistent with other
uses in the Projector with the use of the Enhanced Walkway by other members of the
public for the permitted purposes, such as excessive noise or boisterous activity, bicycle
or skateboard riding skating or similar activity, being intoxicated, having offensive bodily
hygiene, having shopping carts or other wheeled conveyances (except for wheelchairs
and baby strollers /carriages), and Developer shall retain the right to cause persons
engaging in such conduct to be removed from the Project. If any such persons refuse to
leave the Project, they shall be deemed to be trespassing and be subject to arrest in
accordance with applicable law. Developer shall be entitled to establish and post rules
and regulations for use of the Enhanced Walkway consistent with the foregoing. Nothing
in this Agreement or in the Project Plans shall be deemed to mean that the Enhanced
Walkway is a public park or is subject to legal requirements applicable to a public park or
other public space. The Enhanced Walkway shall remain the private property of
Developer with members of the public having only a license to occupy and use the
Enhanced Walkway in a manner consistent with this Article 2
2.8 Parking. The number of parking spaces provided in the Project shall be
sixty six (66), including up to ten (10) compact parking spaces. This Agreement and the
Project Plans set forth the exclusive off - street parking requirements for the Project and
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supersede all other minimum space parking requirements under the Existing Regulations,
including without limitation Part 9.04.10.08 of the Zoning Ordinance.
2.9 Design.
2.9.1 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.
2.9.2 Building Height. The maximum height of the Building as well as
each floor to ceiling height shall be as set forth on the Project Plans. In the event that any
inconsistencies exist between the Zoning Ordinance and the Building height and /or floor
to ceiling heights allowed by this Agreement, then the Building height and floor to
ceiling heights allowed by this Agreement shall prevail.
2.9.3 Ste backs. Developer shall maintain the stepbacks for the Project
as set forth on the Project Plans. In the event that any inconsistencies exist between the
Zoning Ordinance and the stepbacks required by this Agreement, then the stepbacks
established by this Agreement shall prevail.
2.9.4 Permitted Projections. Projections shall be permitted as reflected
on the Project Plans. In the event that any inconsistencies exist between the Zoning
Ordinance and the projections permitted by this Agreement, then the projections
permitted by this Agreement shall prevail.
2.9.5 Signave. 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 Zoning Ordinance (Santa Monica Sign Code) in
effect as of the Effective Date, a copy of which is set forth in its entirety in Exhibit "E ".
Directional signs for vehicles shall be located at approaches to driveways as required by
the City's Strategic Transportation Planning Division.
2.9.6 Balconies. Balconies shall be provided in accordance with the
Project Plans.
2.9.7 Open Space. The amount and location of Project open space shall
be provided in accordance with the Project Plans.
2.9.8 Floor Area. The amount of Floor Area shall be permitted as set
forth in this Agreement and as depicted on the Project Plans. In the event that any
inconsistencies exist between the Zoning Ordinance and the FAR allowed by this
Agreement and as depicted on the Project Plans, then the FAR allowed by this
Agreement and as depicted on the Project Plans shall prevail.
2.10 Contract with City. Developer hereby acknowledges that in approving
this Development Agreement for the Project, the City is waiving fees and taxes and
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modifying development standards otherwise applicable to the Project such as increasing
unit density, reducing parking standards, and other property development standards. In
exchange for such forms of assistance from the City, which are of financial benefit to the
Developer, Developer has entered into this contract with the City and agreed to the other
conditions of the Development Agreement, including the requirement to provide and
maintain eight (8) affordable units on site for occupancy by income qualified households.
The parties agree and acknowledge that this is a contract providing forms of assistance to
the Developer within the meaning of Civil Code Section 1954.52(b) and Government
Code Section 65915 et seq.
ARTICLE 3
3.1 Construction Mitigation Plan. During the construction phase of the
Project, Developer shall comply with the Construction Mitigation Plan attached as
Exhibit "H" hereto.
3.2 Construction Hours. Developer shall be permitted to perform construction
between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to
5:00 p.m. Saturday; provided that interior construction work which does not generate
noise of more than thirty (30) decibels beyond the Property line may also be performed
between the hours of 7:00 a.m. to 8:00 a.m, and 6:00 p.m. to 7:00 p.m. Monday through
Friday, and 8:00 a.m. to 9:00 a.m, and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding
the foregoing, pursuant to SMMC Section 4.12.110(e), Developer has the right to seek a
permit from the City authorizing construction activity during the times otherwise
prohibited by this Section. The Parties acknowledge and agree that, among other things,
after hours construction permits can be granted for concrete pours.
3.3 Outside Building Permit Issuance Date. If Developer has not been issued
a building permit for the Project by the "Outside Building Permit Issuance Date" (defined
below), then on the day after the Outside Building Permit Issuance Date, without any
further action by either Party, this Agreement shall automatically terminate and be of no
further force or effect. For purposes of clarity, if Developer has not been issued a
building permit for the Project by the Outside Building Permit Issuance Date, the City
shall not be required to pursue its remedies under Section 11.4 of this Agreement, and
this Agreement shall, instead, automatically terminate. "Outside Building Permit
Issuance Date" means the date that is the last day of the thirty -sixth (36`h) full calendar
month after the Effective Date; provided that the Outside Building Permit Issuance Date
may be extended by applicable Excusable Delays and otherwise in accordance with the
remainder of this paragraph. If the approval by the ARB of the Project design does not
occur within four (4) months of the submittal by Developer to the ARB of the Project
design, then the Outside Building Permit Issuance Date shall be extended one month for
each additional month greater than four that the final ARB approval is delayed. At any
time before the last day of the thirty -sixth (36 \h) full calendar month after the Effective
Date (the "Extension Notice Date "), Developer may deliver written notice to the
Planning Director, requesting an extension of the Outside Building Permit Issuance Date
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for an additional twelve (12) months. The Outside Building Permit Issuance Date may be
administratively extended not more than one (1) time for an additional twelve (12)
months.. The Planning Director may grant such extension if Developer can demonstrate
substantial progress has been made towards obtaining a building permit and show
reasonable cause why Developer will not be able to obtain the building permit for the
Project by the initial Outside Building Permit Issuance Date and can demonstrate that:
(a) the condition of the Property will not adversely affect public health or safety and (b)
the continued delay will not create any unreasonable visual or physical detriment to the
neighborhood.
3.4 Construction Period. Construction of the Project shall be subject to the
provisions of SMMC Section 8.08.070.
3.5 Damage or Destruction. If the Project, or any part thereof, is damaged or
destroyed during the term of this Agreement, Developer shall be entitled to reconstruct
the Project in accordance with this Agreement if: (a) Developer obtains a building permit
for this reconstruction prior to the expiration of this Agreement and (b) the Project is
found to be consistent with the City's General Plan in effect at the time of obtaining the
building permit.
ARTICLE 4
PROJECT FEES, EXACTIONS,
AND CONDITIONS
4.1. Fees, Exactions, and Conditions. Except as expressly set forth in Section
2.6.2 (relating to Community Benefits), Section 4.2 (relating to modifications), and
Section 5.2 (relating to Subsequent Code Changes) below, the City shall charge and
impose only those fees, exactions„ conditions, and standards of construction set forth in
this Agreement, including Exhibits "C ", "D" and "I" attached hereto, and no others. If
any of the conditions set forth on Exhibit "D" is satisfied by others, Developer shall be
deemed to have satisfied such measures or conditions.
4.2. Conditions on Modifications. The City may impose fees, exactions,
mitigation measures and conditions in connection with its approval of Minor or Major
Modifications, provided that all fees, exactions, mitigation measures and conditions shall
be in accordance with any applicable law.
4.3. Implementation of Conditions of Approval.
4.3.1 Compliance with Conditions of Approval. Developer shall be
responsible to adhere to the conditions of approval set forth in Exhibit "D" in accordance
with the timelines established in Exhibit "D."
4.3.2 Survival of Conditions of Approval. If Developer proceeds with
the construction of the Project, except as otherwise expressly limited in this Agreement,
the obligations and requirements imposed by the conditions of approval set forth in the
attached Exhibit "D" shall survive the expiration of the Term of this Agreement and shall
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remain binding on Developer, its successors and assigns, and shall continue in effect for
the life of the Project.
4.3.3 On -Site Affordable Fee Waivers and Reductions. Notwithstanding
the foregoing, the Residential Buildings shall be entitled to all fee waivers and fee
reductions available for projects involving on -site affordable housing under the SMMC
then in effect.
ARTICLE 5
EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS
5.1 Development Standards for the Property; Existing Regulations. The
following development standards and restrictions set forth in this Section 5.1 govern the
use and development of the Project and shall constitute the Existing Regulations, except
as otherwise expressly required by this Agreement.
5.1.1 Defined Terms. The following terms shall have the meanings set
forth below:
(a) "Existing Regulations" collectively means all of the
following which are in force and effect as of the Effective Date: (i) the General Plan
(including, without limitation, the LUCE); (ii) the Bayside District Specific Plan; (iii) the
Zoning Ordinance except as modified herein; (iv) the IZO; (v) 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 (vi) the development standards and
procedures in ARTICLE 2 of this Agreement.
(b) "Subsequent Code Changes" collectively means all of the
following which are adopted or approved subsequent to the Effective Date, whether such
adoption or approval is by the City Council, any department, division, office, board,
commission or other agency of the City, by the people of the City through charter
amendment, referendum, initiative or other ballot measure, or by any other method or
procedure: (i) any amendments, revisions, additions or deletions to the Existing
Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications
and official policies of the City governing or affecting the grading, design, development,
construction, occupancy or use of buildings or improvements or any exactions therefor.
"Subsequent Code Changes" includes, without limitation, any amendments, revisions or
additions to the Existing Regulations imposing or requiring the payment of any fee,
special assessment or tax.
5.1.2 Existing Regulations Govern the Project. Except as provided in
Section 5.2, development of the Buildings and improvements that will comprise the
Project, including without limitation, the development standards for the demolition,
grading, design, development, construction, occupancy or use of such Buildings and
improvements, and any exactions therefor, shall be governed by the Existing Regulations.
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The City agrees that this Agreement is consistent with the General Plan, including the
LUCE, and the Bayside District Specific Plan as more fully described in the Recitals.
Any provisions of the Existing Regulations inconsistent with the provisions of this
Agreement, to the extent of such inconsistencies and not further, are hereby deemed
modified to that extent necessary to effectuate the provisions of this Agreement. The
Project shall be exempt from: (a) all Discretionary Approvals or review by the City or
any agency or body thereof, other than the matters of architectural review by the ARB as
specified in Section 6.1 and review of modifications to the Project as expressly set forth
in Sections 2.4.2 and 2.4.3; (b) the application of any subsequent local development or
building moratoria, development or building rationing systems or other restrictions on
development which would adversely affect the rate, timing, or phasing of construction of
the Project, and (c) Subsequent Code Changes which are inconsistent with this
Agreement.
5.2 Permitted Subsequent Code Changes.
5.2.1 Applicable Subsequent Code Changes. Notwithstanding the terms
of Section 5. 1, this Agreement shall not prevent the City from applying to the Project the
following Subsequent Code Changes set forth below in this Section 5.2.1.
(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 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
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substantive findings by the City in approving this Agreement or as otherwise established
in this Agreement.
(d) Regulations governing construction standards and
specifications which are of general application that establish standards for the
construction and installation of structures and associated improvements, including,
without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code and Fire Code; provided that such construction standards and
specifications are applied on a City -wide basis and do not otherwise limit or impair the
Project approvals granted in this Agreement unless adopted to meet health and safety
concerns.
(e) Any City regulations to which Developer has consented in
writing
(1) Collection of such fees or exactions as are imposed and set
by governmental entities not controlled by City but which are required to be collected by
City.
(g) Regulations which do not impair the rights and approvals
granted to Developer under this Agreement. For the purposes of this Section 5.2.1(g),
regulations which impair Developer's rights or approvals include, but are not limited to,
regulations which (i) materially increase the cost of the Project (except as provided in
Section 5.2.1(a), (b), and (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.
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Developer may, in its sole discretion, give the City written notice of its election to have
any Subsequent Code Change applied to such portion of the Property as it may have an
interest in, in which case such Subsequent Code Change shall be deemed to be an
Existing Regulation insofar as that portion of the Property is concerned. If there is any
conflict or inconsistency between the terms and conditions of this Agreement and the
Existing Regulations, the terms and conditions of this Agreement shall control.
5.5 Timing of Development. The California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in
that case to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over the parties' agreement. It is the
intent of Developer and the City to cure that deficiency by expressly acknowledging and
providing that any Subsequent Code Change that purports to limit over time the rate or
timing of development or to alter the sequencing of development phases (whether
adopted or imposed by the City Council or through the initiative or referendum process)
shall not apply to the Property or the Project and shall not prevail over this Agreement.
In particular, but without limiting any of the foregoing, no numerical restriction shall be
placed by the City on the amount of total square feet or the number of buildings,
structures, residential units that can be built each year on the Property except as expressly
provided in this Agreement.
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 three and a half percent (3.5 %). 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 Plans and this Agreement. Technical
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City Permits include, without limitation (a) building permits, (b) related mechanical,
electrical, plumbing and other technical permits, (c) demolition, excavation and grading
permits, (d) encroachment permits, and (e) temporary and final certificates of occupancy.
7.1.2 "Technical Permit Applications" means any applications
required to be filed by Developer for any Technical City Permits.
7.2 Diligent Action by City.
7.2.1 Upon satisfaction of the conditions set forth in Section 7.3, the
City shall accept the Technical Permit Applications filed by Developer with the City and
shall diligently proceed to process such Technical Permit Applications to completion.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the
City shall diligently issue the Technical City Permits which are the subject of the
Technical Permit Applications,
7.3 Conditions for Diligent Action by the City.
7.31 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;
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(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 Codes ") in effect on the date that the Technical Permit
Application is filed.
7.3.3 New Technical Requirements. From time to time, the City's
Technical Codes are amended to meet new technical requirements related to techniques
of building and construction. If the sole means of achieving compliance for the Project
with such revisions to the Technical Codes made after the Effective Date ( "New
Technical Requirements ") would require an increase from the allowable Building
Height established in this Agreement for the Project, then the Planning Director is hereby
authorized to grant Developer limited relief from the allowable Building Height without
amending this Agreement if the requested relief is in compliance with the City's General
Plan. Any such approval shall be granted only after the Planning Director's receipt of a
written request for such relief from Developer. Developer is required to supply the
Planning Director with written documentation of the fact that compliance with the New
Technical Requirements cannot be achieved by some other method. Any such relief shall
only be granted to the extent necessary in the Planning Director's determination for
Developer to comply with the New Technical Requirements.
7.4 Duration of Technical City Permits. The duration of Technical City
Permits issued by the City, and any extensions of the time period during which such
Technical City Permits remain valid, shall be established in accordance with the
Technical Codes in effect at the time that the Technical City Permits are issued. Subject
to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall
not preclude or impair Developer from subsequently filing another Technical Permit
Application for the same matter during the Term of this Agreement, which shall be
processed by the City in accordance with the provisions of this ARTICLE 7.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains
building permits for the Project and, at any time after the Outside Building Permit
Issuance 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]
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7.6 [Reserved]
ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. Subject to the
notice and hearing requirements of the applicable Development Agreement Statutes, this
Agreement may be modified or amended from time to time only with the written consent
of Developer and the City or their successors and assigns in accordance with the
provisions of the SMMC and Section 65868 of the California Government Code.
ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the
Parties hereunder shall be effective as of the date upon which the ordinance approving
this Agreement becomes effective (the "Effective Date "). The Parties shall execute this
Agreement within ten (10) working days of the Effective Date.
9.2 Term.
9.2.1 Term of Agreement. The term of this Agreement shall commence
on the Effective Date and shall continue for ten (10) years thereafter (the "Term "), unless
the Term is otherwise terminated pursuant to Section 11.4, after the satisfaction of all
applicable public hearing and related procedural requirements or pursuant to Section 3.3.
9.2.2 Termination Certificate. Upon termination of this Agreement, the
Parties hereto shall execute an appropriate certificate of termination in recordable form (a
"Termination Certificate "), which shall be recorded in the official records of Los
Angeles County.
9.2.3 Effect of Termination. Except as expressly provided herein (e.g.,
Section 4.3.2 ), 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 March 31sT (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. On or before October 1" of each
year, Developer shall deliver to the City a written report demonstrating that Developer
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has been in good faith compliance with this Agreement during the twelve (12) month
period prior to the anniversary of the Effective Date. The written report shall be provided
in the form established by the City. For purposes of this Agreement, the phrase "good
faith compliance" shall mean the following: (a) compliance by Developer with the
requirements of the Existing Regulations, except as otherwise modified by this
Agreement; and (b) compliance by Developer with the terms and conditions of this
Agreement, subject to the existence of any specified Excusable Delays (as defined in
Section 15.8 below) which prevented or delayed the timely performance by Developer of
any of its obligations under this Agreement.
10.3 Information to be Provided to Developer. Prior to 'any public hearing
concerning the Periodic Review of this Agreement, the City shall deliver to Developer a
copy of all staff reports prepared in connection with a Periodic Review, written
comments from the public and, to the extent practical, all related exhibits concerning
such Periodic Review. If the City delivers to Developer a Notice of Breach pursuant to
Section 11.1 below, the City shall concurrently deliver to Developer a copy of all staff
reports prepared in connection with such Notice of Breach, all written comments from the
public and all related exhibits concerning such Notice of Breach.
10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City
reasonably concludes on the basis of substantial evidence that Developer has not
demonstrated that it is in good faith compliance with this Agreement, then the City may
issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1 below,
and Developer shall have the opportunity to cure the default identified in the Notice of
Breach during the cure periods and in the manner provided by Section 11.2 and Section
11.3, as applicable.
10.5 Failure of Periodic Review. The City's failure to review at least annually
compliance by Developer with the terms and conditions of this Agreement shall not
constitute or be asserted by any Party as a breach by any other Party of this Agreement.
10.6 Termination of Development Agreement. If Developer fails to timely cure
any item(s) of non - compliance set forth in a Notice of Default, then the City shall have
the right but not the obligation to initiate proceedings for the purpose of terminating this
Agreement pursuant to Section 11.4 below.
10.7 City Cost Recovery. Following completion of each Periodic Review,
Developer shall reimburse the City for its actual and reasonable costs incurred in
connection with such review.
ARTICLE 11
DEFAULT
11.1 Notice and Cure.
11.1.1 Breach. If either Party fails to substantially to perform any term,
covenant or condition of this Agreement which is required on its part to be performed (a
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"Breach "), the non - defaulting Party shall have those rights and remedies provided in this
Agreement; provided that such non - defaulting Party has first sent a written notice of
Breach (a "Notice of Breach "), in the manner required by Section 15. 1, specifying the
precise nature of the alleged Breach (including references to pertinent Sections of this
Agreement and the Existing Regulations or Subsequent Code Changes alleged to have
been breached), and the manner in which the alleged Breach may satisfactorily be cured.
If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice
of Breach to any Secured Lender of Developer which has delivered a Request for Notice
to the City in accordance with ARTICLE 12.
11.1.2 Monetary Breach. In the case of a monetary Breach by Developer,
Developer shall promptly commence to cure the identified Breach and shall complete the
cure of such Breach within thirty (30) business days after receipt by Developer of the
Notice of Breach; provided that if such monetary Breach is the result of an Excusable
Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer
shall deliver to the City reasonable evidence of the Excusable Delay.
11.1.3 Non - Monetary Breach. In the case of a non - monetary Breach by
either Party, the alleged defaulting Party shall promptly commence to cure the identified
Breach and shall diligently prosecute such cure to completion; provided that the
defaulting Party shall complete such cure within thirty (3 0) days after receipt of the
Notice of Breach or provide evidence of Excusable Delay that prevents or delays the
completion of such cure. The thirty (30) day cure period for a non - monetary Breach shall
be extended as is reasonably necessary to remedy such Breach; provided that the alleged
defaulting Party commences such cure promptly after receiving the Notice of Breach and
continuously and diligently pursues such remedy at all times until such Breach is cured.
11. 1.4 Excusable Delay. Notwithstanding anything to the contrary
contained in this Agreement, the City's exercise of any of its rights or remedies under this
ARTICLE 11 shall be subject to the provisions regarding Excusable Delay in
Section 15.8 below.
11.2 Remedies for Monetary Default. If there is a Breach by Developer in the
performance of any of its monetary obligations under this Agreement which remains
uncured (a) thirty (30) business days after receipt by Developer of a Notice of Breach
from the City and (b) after expiration of Secured Lender's Cure Period under Section
12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in
accordance with Section 12. 1), then an "Event of Monetary Default" shall have
occurred by Developer and the City shall have available any right or remedy provided in
this Agreement, at law or in equity. All of said remedies shall be cumulative and not
exclusive of one another, and the exercise of any one or more of said remedies shall not
constitute a waiver or election in respect to any other available remedy.
11.3 Remedies for Non - Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from
the other Party regarding a non - monetary Breach, and the non - monetary Breach remains
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uncured: (a) after expiration of all applicable notice and cure periods, and (b) in the case
of a Breach by Developer, after the expiration of Secured Lender's Cure Period under
Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the
City in accordance with Section 12. 1), then an "Event of Non - Monetary Default" shall
have occurred and the non - defaulting Party shall have available any right or remedy
provided in this Agreement, or provided at law or in equity except as prohibited by this
Agreement. All of said remedies shall be cumulative and not exclusive of one another,
and the exercise of any one or more of said remedies shall not constitute a waiver or
election in respect to any other available remedy.
11.3.2 Specific Performance. The City and Developer acknowledge that
monetary damages and remedies at law generally are inadequate and that specific
performance is an appropriate remedy for the enforcement of this Agreement. Therefore,
unless otherwise expressly provided herein, the remedy of specific performance shall be
available to the non - defaulting party if the other Party causes an Event of Non - Monetary
Default to occur.
11.3.3 Writ of Mandate. The City and Developer hereby stipulate that
Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance
with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate; to remedy
any Event of Non - Monetary Default by the City of its obligations and duties under this
Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary
standard or the standard of review applicable to any action of, or approval by, the City
pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by
Developer that the City would not have entered into this Agreement if the City were to be
liable in damages under or with respect to this Agreement or the application thereof.
Consequently, and except for the payment of attorneys' fees and court costs, the City
shall not be liable in damages to Developer and Developer covenants on behalf of itself
and its successors in interest not to sue for or claim any damages:
(a) for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any
right or interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
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
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(c) do not arise out of or which are not connected to any
dispute, controversy, or issue regarding the application, interpretation, or effect of the
provisions of this Agreement or the application of any City rules, regulations, or official
policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be
entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the
same may be amended from time to time and shall follow the notice procedures of
Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these
remedies are applied.
11. 3.6 No Damages Against Developer. It is acknowledged by the City
that Developer would not have entered into this Agreement if Developer were to be liable
in damages in connection with any non - monetary default hereunder. Consequently, and
except for the payment of attorneys' fees and court costs, Developer shall not be liable in
damages to the City for any nonmonetary default and the City covenants on behalf of
itself not to sue for or claim any damages:
(a) for any non - monetary default hereunder or;
(b) 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
11.3.6 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.
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11.4 Modification or Termination of Agreement by City.
11.4.1 Default by Developer. If Developer causes either an Event of
Monetary Default or an Event of Non - Monetary Default, then the City may commence
proceedings to modify or terminate this Agreement pursuant to this Section 11.4.
11.4.2 Procedure for Modification or Termination. The procedures for
modification or termination of this Agreement by the City for the grounds set forth in
Section 11.4.1 are as follows:
(a) The City shall provide a written notice to Developer (and to
any Secured Lender of Developer which has delivered a Request for Notice to the City in
accordance of Section 12.1) of its intention to modify or terminate this Agreement unless
Developer (or the Secured Lender) cures or corrects the acts or omissions that constitute
the basis of such determinations by the City (a "Hearing Notice "). The Hearing Notice
shall be delivered by the City to Developer in accordance with Section 15.1 and shall
contain the time and place of a public hearing to be held by the City Council on the
determination of the City to proceed with modification or termination of this Agreement.
The public hearing shall not be held earlier than: (i) thirty -one (31) 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 12.1.3).
(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
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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
"Mortgage "). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a
"Secured Lender ") on the Property shall be entitled to the rights and privileges set forth
in this ARTICLE 12. Any Secured Lender may require from the City certain
interpretations of this Agreement. The City shall from time to time, upon request made
by Developer, meet with Developer and representatives of each of its Secured Lenders to
negotiate in good faith any Secured Lender's request for interpretation of any part of this
Agreement. The City will not unreasonably withhold, condition or delay the delivery to a
Secured Lender of the City's written response to any such requested interpretation.
12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section
12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any
Event of Monetary Default nor any Event of Non - Monetary Default shall defeat, render
invalid, diminish, or impair the lien of any Mortgage made in good faith and for value.
12.1.2 Priority of Agreement. This Agreement shall be superior and
senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or
interest in or with respect to the Property or any portion thereof by a Secured Lender or
its successor in interest (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination or otherwise) shall be subject to all of the terms and
conditions of this Agreement.
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12.1.3 Right of Secured Lender to Cure Default.
(a) A Secured Lender may give notice to the City, specifying
the name and address of such Secured Lender and attaching thereto a true and complete
copy of the Mortgage held by such Secured Lender, specifying the portion of the
Property that is encumbered by the Secured Lender's lien (a "Request for Notice "). If
the Request for Notice has been given, at the same time the City sends to Developer any
Notice of Breach or Hearing Notice under this Agreement, then if such Notice of Breach
or Hearing Notice affects the portion of the Property encumbered by the Secured
Lender's lien, the City shall send to such Secured Lender a copy of each such Notice of
Breach and each such Hearing Notice from the City to Developer. The copy of the
Notice of Breach or the Hearing Notice sent to the Secured Lender pursuant to this
Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished
to the City. The period within which a Secured Lender may cure a particular Event of
Monetary Default or Event of Non - Monetary Default shall not commence until the City
has sent to the Secured Lender such copy of the applicable Notice of Breach or Hearing
Notice.
(b) After a Secured Lender has received a copy of such Notice
of Default or Hearing Notice, such Secured Lender shall thereafter have a period of time
(in addition to any notice and /or cure period afforded to Developer under this Agreement)
equal to: (a) ten (10) business days in the case of any Event of Monetary Default and (b)
thirty (30) days in the case of any Event of Non - Monetary Default, during which period
the Secured Lender may provide a remedy or cure of the applicable Event of Monetary
Default or may provide a remedy or cure of the applicable Event of Non - Monetary
Default; provided that if the cure of the Event of Non - Monetary Default cannot
reasonably be completed within thirty days, Secured Lender may, within such 30 -day
period, commence to cure the same and thereafter diligently prosecute such cure to
completion (a "Secured Lender's Cure Period "). If Developer has caused an Event of
Monetary Default or an Event of Non - Monetary Default, then each Secured Lender shall
have the right to remedy such Event of Monetary Default or an Event of Non - Monetary
Default, as applicable, or to cause the same to be remedied prior to the conclusion of the
Secured Lender's Cure Period and otherwise as herein provided. The City shall accept
performance by any Secured Lender of any covenant, condition, or agreement on
Developer's part to be performed hereunder with the same force and effect as though
performed by Developer.
(c) The period of time given to the Secured Lender to cure any
Event of Monetary Default or an Event of Non - Monetary Default by Developer which
reasonably requires that said Secured Lender be in possession of the Property to do so,
shall be deemed extended to include the period of time reasonably required by said
Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver
or otherwise) promptly and with due diligence; provided that during such period all other
obligations of Developer under this Agreement, including, without limitation, payment of
all amounts due, are being duly and promptly performed.
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12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under
this Agreement to perform the obligations of Developer's or the affirmative covenants of
Developer's hereunder or to guarantee such performance unless and until such time as a
Secured Lender takes possession or becomes the owner of the estate covered by its
Mortgage. If the Secured Lender takes possession or becomes the owner of any portion
of the Property, then from and after that date, the Secured Lender shall be obligated to
comply with all provisions of this Agreement; provided that the Secured Lender shall not
be responsible to the City for any unpaid monetary obligations of Developer that accrued
prior to the date the Secured Lender became the fee owner of the Property.
(b) Nothing in Section 12.1.4(a) is intended, nor should be
construed or applied, to limit or restrict in any way the City's authority to terminate this
Agreement, as against any Secured Lender as well as against Developer if any curable
Event of Monetary Default or an Event of Non - Monetary Default is not completely cured
within the Secured Lender's Cure Period.
ARTICLE 13
TRANSFERS AND ASSIGNMENTS
13.1 Transfers and Assignments.
13. 1.1 Not Severable from Ownership Interest in Property. This
Agreement shall not be severable from Developer's interest in the Property and any
transfer of the Property or any portion thereof shall automatically operate to transfer the
benefits and burdens of this Agreement with respect to the transferred Property or
transferred portions, as applicable.
13.1.2 Transfer Rights. Developer may freely sell, transfer, exchange,
hypothecate, encumber or otherwise dispose of its interest in the Property, without the
consent of the City. Developer shall, however, give written notice to the City, in
accordance with Section 15. 1, of any transfer of the Property, disclosing in such notice
(a) the identity of the transferee of the Property (the "Property Transferee ") and (b) the
address of the Property Transferee as applicable.
13.2 Release Upon Transfer. Upon the sale, transfer, exchange or
hypothecation of the rights and interests of Developer to the Property, Developer shall be
released fi•om 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 "I" attached hereto (the "Assumption Agreement ").
Upon such transfer of the Property and the express assumption of Developer's obligations
under this Agreement by the transferee, the City agrees to look solely to the transferee for
compliance with the provisions of this Agreement. Any such transferee shall be entitled
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to the benefits of this Agreement as "Developer" hereunder and shall be subject to the
obligations of this Agreement. Failure to deliver a written Assumption Agreement
hereunder shall not affect the transfer of the benefits and burdens as provided in Section
13. 1, provided that the transferor shall not be released from its obligations hereunder
unless and until the executed Assumption Agreement is delivered to the City.
ARTICLE 14
INDEMNITY TO CITY
14.1 Indemnity. Developer agrees to and shall defend, indemnify and hold
harmless the City, its City Council, boards and commissions, officers, agents, employees,
volunteers and other representatives (collectively referred to as "City Indemnified
Parties ") from and against any and all loss, liability, damages, cost, expense, claims,
demands, suits, attorney's fees and judgments (collectively referred to as "Damages "),
including but not limited to claims for damage for personal injury (including death) and
claims for property damage arising directly or indirectly from the following: (1) for any
act or omission of Developer or those of its officers, board members, agents, employees,
volunteers, contractors, subcontractors or other persons acting on its behalf (collectively
referred to as the "Developer Parties") which occurs during the Term and relates to this
Agreement; (2) for any act or omission related to the operations of Developer Parties,
including but not limited to the maintenance and operation of areas on the Property
accessible to the public. Developer's obligation to defend, indemnify and hold harmless
applies to all actions and omissions of Developer Parties as described above caused or
alleged to have been caused in connection with the Project or Agreement, except to the
extent any Damages are caused by the active negligence or willful misconduct of any
City Indemnified Parties. This Section 141 applies to all Damages suffered or alleged to
have been suffered by the City Indemnified Parties regardless of whether or not the City
prepared, supplied or approved plans or specifications or both for the Project.
14.2 City's Right to Defense. The City shall have the right to approve legal
counsel retained by Developer to defend any claim, action or proceeding which
Developer is obligated to defend pursuant to Section 14. 1, which approval shall not be
unreasonably withheld, conditioned or delayed. If any conflict of interest results during
the mutual representation of the City and Developer in defense of any such action, or if
the City is reasonably dissatisfied with legal counsel retained by Developer, the City shall
have the right (a) at Developer's costs and expense, to have the City Attorney undertake
and continue the City's defense, or (b) with Developer's approval, which shall not be
reasonably withheld or delayed, to select separate outside legal counsel to undertake and
continue the City's defense.
ARTICLE 15
GENERAL PROVISIONS
15.1 Notices. Formal notices, demands and communications between the
Parties shall be deemed sufficiently given if delivered to the principal offices of the City
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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:
13202 Id Street, LLC
12121 Wilshire Blvd. Suite 720
Los Angeles, CA. 90025
Attn: Kevin Farrell
Fax: (310) 405 -0508
With a Copy to:
Armbruster Goldsmith & Delvac LLP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
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. .
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15.3 Binding Effect. The Parties intend that the provisions of this Agreement
shall constitute covenants which shall run with the land comprising the Property during
the Term for the benefit thereof and that the burdens and benefits thereof shall bind and
inure to the benefit of all successors -in- interest to the Parties hereto. Every Party who
now or hereafter owns or acquires any right, title, or interest in or to any portion of the
Project during the Term is and shall be conclusively deemed to have consented and
agreed to every provision contained herein, to the extent relevant to said right, title or
interest, whether or not any reference to this Agreement is contained in the instrument by
which such person acquired an interest in the Project.
15.4 Agreement Not for Benefit of Third Parties. This Agreement is made and
entered into for the sole protection and benefit of Developer and the City and their
respective successors and assigns. No other person shall have any right of action based
upon any provision of this Agreement.
15.5 No Partnership or Joint Venture. Nothing in this Agreement shall be
deemed to create a partnership or joint venture between the City and Developer or to
render either Party liable in any manner for the debts or obligations of the other.
15.6 Estoppel Certificates. Either Party may, at any time, and from time to
time, deliver written notice to the other Party requesting such Party to certify in writing
(each, an "Estoppel Certificate "): (a) that this Agreement is in full force and effect, (b)
that this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the amendments, (c) whether or not, to the knowledge of the
responding Party, the requesting Party is in Breach or claimed Breach in the performance
of its obligations under this Agreement, and, if so, describing the nature and amount of
any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the
responding Party, any event has occurred or failed to occur which, with the passage of
time or the giving of notice, or both, would constitute an Event of Monetary Default or an
Event of Non - Monetary Default and, if so, specifying each such event. A Party receiving
a request for an Estoppel Certificate shall execute and return such Certificate within thirty
(30) days following the receipt of the request therefor. If the party receiving the request
hereunder does not execute and return the certificate in such 30 -day period and if
circumstances are such that the Party requesting the notice requires such notice as a
matter of reasonable business necessity, the Party requesting the notice may seek a
second request which conspicuously states "FAILURE TO EXECUTE THE
REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE
DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE
DEVELOPMENT AGREEMENT" and which sets forth the business necessity for a
timely response to the estoppel request. If the Party receiving the second request fails to
execute the Estoppel Certificate within such 15 -day period, it shall be conclusively
deemed that the Agreement is in full force and effect and has not been amended or
modified orally or in writing, and that there are no uncured defaults under this Agreement
or any events which, with passage of time of giving of notice, of both, would constitute a
default under the Agreement. The City Manager shall have the right to execute any
Estoppel Certificate requested by Developer under this Agreement. The City
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acknowledges that an Estoppel Certificate may be relied upon by any Property
Transferee, Secured Lender or other party.
15.7 Time. Time is of the essence for each provision of this Agreement of
which time is an element.
15.8 Excusable Delays.
15.8.1 In addition to any specific provisions of this Agreement, non-
performance by Developer of its obligations under this Agreement shall be excused when
it has been prevented or delayed in such performance by reason of any act, event or
condition beyond the reasonable control of Developer (collectively, "Excusable Delays ";
for any of the following reasons:
(a) War, insurrection, walk -outs, riots, acts of terrorism,
floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused
performances;
(b) Governmental restrictions or moratoria imposed by the City
or by other governmental entities or the enactment of conflicting State or Federal laws or
regulations;
(c) The imposition of restrictions or moratoria by judicial
decisions or by litigation, contesting the validity, or seeking the enforcement or
clarification of, this Agreement whether instituted by Developer, the City or any other
person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or
any permit or approval Developer deems necessary or desirable for the implementation of
the Project;
(d) The institution of a referendum pursuant to Government
Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter,
modify or amend the ordinance adopted by the City Council approving and implementing
this Agreement;
(e) Inability to secure necessary labor, materials or tools, due
to strikes, lockouts, or similar labor disputes; and
(f) Failure of the City to timely perform its obligations
hereunder, including its obligations under Section 7.2 above.
15.8.2 Under no circumstances shall the inability of Developer to secure
financing be an Excusable Delay to the obligations of Developer.
15.8.3 In order for an extension of time to be granted for any Excusable
Delay, Developer must deliver to the City written notice of the commencement of the
Excusable Delay within sixty (60) days after the date on which Developer becomes aware
of the existence of the Excusable Delay. The extension of time for an Excusable Delay
shall be for the actual period of the delay.
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15.8.4 Nothing contained in this Section 15.8 is intended to modify the
terms of either Section 5.1.2 or Section 5.5 of this Agreement.
15.9 Governing Law. This Agreement shall be governed exclusively by the
provisions hereof and by the laws of the State of California.
15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any
court action or other proceeding commenced that includes any challenge to the validity,
enforceability or any term or provision of this Agreement, then Developer shall
indemnify, hold harmless, pay all costs actually incurred, and provide defense in said
action or proceeding, with counsel reasonably satisfactory to both the City and
Developer. The City shall cooperate with Developer in any such defense as Developer
may reasonably request.
15.11 Attorneys' Fees. If any Party commences any action for the interpretation,
enforcement, termination, cancellation or rescission of this Agreement or for specific
performance for the Breach of this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include
attorneys' fees on any appeal as well as any attorneys' fees incurred in any post - judgment
proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid
whether or not such action is prosecuted to judgment. In any case where this Agreement
provides that the City or Developer is entitled to recover attorneys' fees from the other,
the Party so entitled to recover shall be entitled to an amount equal to the fair market
value of services provided by attorneys employed by it as well as any attorneys' fees
actually paid by it to third Parties. The fair market value of the legal services for public
attorneys shall be determined by utilizing the prevailing billing rates of comparable
private attorneys.
15.12 Recordation. The Parties shall cause this Agreement to be recorded
against title to the Property in the Official Records of the County of Los Angeles. The
cost, if any, of recording this Agreement shall be borne by Developer.
15.13 No Waiver. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized representative of the Party
against whom enforcement of a waiver is sought and referring expressly to this Section
15.13. No delay or omission by either Party in exercising any right or power accruing
upon non - compliance or failure to perform by the other Party under any of the provisions
of this Agreement shall impair any such right or power or be construed to be a waiver
thereof, except as expressly provided herein. No waiver by either Party of any of the
covenants or conditions to be performed by the other Party shall be construed or deemed
a waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof of this Agreement.
15.14 Construction of this Agreement. The Parties agree that each Party and its
legal counsel have reviewed and revised this Agreement and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting Party shall not apply
in the interpretation of this Agreement or any amendments or exhibits thereto.
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15.15 Other Governmental Approvals. Developer may apply for such other
permits and approvals as may be required for development of the Project in accordance
with this Agreement from other governmental or quasi - governmental agencies having
jurisdiction over the Property. The City shall reasonably cooperate with Developer in its
endeavors to obtain such permits and approvals.
15.15.1 Further Assurances; Covenant to Sign Documents. Each Party
shall take all actions and do all things, and execute, with acknowledgment or affidavit, if
required, any and all documents and writings, which may be necessary or proper to
achieve the purposes and objectives of this Agreement.
15.15.2 Processine. Upon satisfactory completion by Developer of all
required preliminary actions and payments of appropriate processing fees, if any, the City
shall, subject to all legal requirements, promptly initiate, diligently process, and complete
at the earliest possible time all required steps, and expeditiously act upon any approvals
and permits necessary for the development by Developer of the Project in accordance
with this Agreement, including, but not limited to, the following:
(a) the processing of applications for and issuing of all
Discretionary Approvals requiring the exercise of judgment and deliberation by City;
(b) the holding of any required public hearings; and
(c) the processing of applications for and issuing of all City
Technical Permits requiring the determination of conformance with the Existing
Regulations.
15.15.3 No Revocation. The City shall not revoke or subsequently
disapprove any approval or future approval for the development of the Project or the
Property once issued by the City provided that the development of the Project or the
Property is in accordance with such approval. Any disapproval by the City shall state in
writing the reasons for such disapproval and the suggested actions to be taken in order for
approval to be granted.
15.15.4 Processing During Third Party 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 15.8(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.
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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"
Conditions of Approval
Exhibit "E"
SMMC Article 9 (Planning and Zoning)
Exhibit "F -1"
Local Hiring Program for Construction
Exhibit "F -2"
Local Hiring Program for Permanent Employment
Exhibit "G"
[Reserved]
Exhibit "H"
Construction Mitigation Plan
Exhibit "I"
Assignment and Assumption Agreement
Except as to the Project Plans (attached hereto as Exhibit `B ") which shall
be treated in accordance with Section 2.1 above, the text of this Agreement shall prevail
in the event that any inconsistencies exist between the Exhibits and the text of this
Agreement.
15.18 Counterpart Signatures. The Parties may execute this Agreement on
separate signature pages which, when attached hereto, shall constitute one complete
Agreement.
15.19 Certificate of Performance. Upon the completion of the Project, or any
phase thereof, or upon performance of this Agreement or its earlier revocation and
termination, the City shall provide Developer, upon Developer's request, with a statement
( "Certificate of Performance ") evidencing said completion, termination or revocation
and the release of Developer from further obligations hereunder, except for any further
obligations which survive such completion, termination or revocation. The Certificate of
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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 farther clarified from time to time as necessary with
future written approval by the City and Developer. Operating memoranda are not
intended to and cannot constitute an amendment to this Agreement but mere ministerial
clarifications, therefore public notices and hearings shall not be required for any
operating memorandum. The City Attorney shall be authorized, upon consultation with,
and approval of, Developer, to determine whether a requested clarification may be
effectuated pursuant to the execution and delivery of an operating memorandum or
whether the requested clarification is of such character to constitute an amendment of this
Agreement which requires compliance with the provisions of Section 8.1 above. The
authority to enter into such operating memoranda is hereby delegated to 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,
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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
development of the Project. The City Manager or his/her designee is hereby authorized
to prepare, execute, and record those additional agreements.
15.25 Severability and Termination. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable, or if any
provision of this Agreement is superseded or rendered unenforceable according to any
law which becomes effective after the Effective Date, the remainder of this Agreement
shall be effective to the extent the remaining provisions are not rendered impractical to
perform, taking into consideration the purposes of this Agreement.
This Agreement is executed by the Parties on the date first set forth above and is
made effective on and as of the Effective Date.
DEVELOPER:
13202 "d Street, LLC
12121 Wilshire Blvd. Suite 720
Los Angeles, CA. 90025
DRAFT
Name:
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Title:
CITY:
CITY OF SANTA MONICA,
a municipal corporation
By:
DRAFT
Name:
Title:
ATTEST:
By:
DRAFT
Name:
City Clerk
APPROVED
AS TO FORM:
By:
DRAFT
Name:
City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
The land referred to herein is situated in the State of California, County of Los Angeles,
City of Santa Monica, and described as follows:
LOTS "D" AND "E" IN BLOCK 148 OF THE TOWN OF SANTA MONICA, IN THE
CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 3 PAGES 80 AND 81 AND IN
BOOK 39 PAGE 45 ET SEQ. OF MISCELLANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 4291- 014 -005, 4291- 014 -006
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EXHIBIT `B"
PROJECT PLANS
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EXHIBIT "C"
PERMITTED FEES AND EXACTIONS
Developer shall pay the following fees and charges that are within the City's
jurisdiction and at the rate in effect at the time payments are made:
(a) Upon submittal for Architectural Review Board (ARB) review, Developer
shall pay City fees for processing of ARB applications;
(b) Upon submittal for plan check, Developer shall pay City plan check fees;
(c) Prior to issuance of construction permits, Developer shall pay the
following City fees and all other standard fees imposed on similar
development projects:
• Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping,
Excavation and Shoring Permit fees (collected by Building & Safety)
• Shoring Tieback fee (collected by EPWM)
• Park and Recreation Facilities Tax (SMMC Section 6.80). Developer
shall pay a fee of $200.00 per residential unit, due and payable at the
time of issuance of a building permit for the construction or placement
of residential units on the subject 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)
• Childcare Linkage Fee (SMMC Section 9.72.040). Developer shall
execute a contract to pay the fee prior to issuance of a building permit.
Developer shall pay the fee prior to the issuance of a final certificate of
occupancy for the Project.
• Cultural Arts Fee (SMMC Section 9.04.10.20). Developer shall execute
a contract to pay the fee prior to issuance of a building permit.
Developer shall pay the fee prior to the issuance of a final certificate of
occupancy for the Project.
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(d) Upon inspection of the Project during the course of construction, City
inspection fees.
These fees shall be reimbursed to Developer in accordance with the City's
standard practice should Developer not proceed with development of the Project.
2. Prior to issuance of permits for any construction work in the public right -of -way,
or use of public property, Developer shall pay the following City fees:
• Use of Public Property Permit fees (SMMC 7.04.670) (EPWM)
• Utility Excavation Permit fee (SMMC 7.04.010) (EPWM)
i Street Permit fee (SMMC 7.04.790) (EPWM)
3. Developer shall reimburse the City for its ongoing actual costs to monitor the
project's compliance with this Development Agreement. The City shall bill
Developer for staff time and any material used pursuant to the hourly fees in
effect at the time monitoring is performed. Developer shall submit payment to the
City within 30 days.
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EXHIBIT "D"
CONDITIONS OF APPROVAL
Project Specific Conditions
1. On -Site Affordable Housing. Developer shall meet its affordable housing
obligation through the development of on -site units for very -low income tenants
pursuant to the City's Affordable Housing Production Program (SMMC Chapter
9.56). In addition to the five (5) very -low income studio units required by AHPP,
the project shall provide and maintain five (5) additional moderate income one-
bedroom units as a community benefit, for a total of ten (10) affordable units on-
site. All ten (10) affordable housing units shall be deed restricted in accordance
with the City's Affordable Housing Production Program.
2. Transportation Demand Management Plan. Developer shall maintain and
implement the following Transportation Demand Management Plan ( "TDM
Plan "):
I. Measures Applicable to Entire Project (Commercial and Residential
Elements
A. Transportation Information Center. The Developer shall maintain,
for the life of the Project, a Transportation Information Center
( "TIC'). The location of the TIC shall be mutually agreed upon by
the Transportation Demand Program Manager and the Developer
prior to the City's issuance of a certificate of occupancy for the
Building, and may be relocated from time to time thereafter upon
mutual agreement of the Developer (or Developer's successor in
interest) and the Transportation Demand Program Manager. The
TIC shall include information for employees, visitors and residents
about:
® Local public transit services, including current maps, bus
lines, light rail lines, fare information, schedules for public
transit routes serving the Project, telephone numbers and
website links for referrals on transportation information,
including numbers for the regional ridesharing agency,
vanpool providers, ridematching and local transit operators,
ridesharing promotional material supplied by commuter -
oriented organizations and shuttles; and
• Bicycle facilities, including routes, rental and sales
locations, on -site bicycle facilities, bicycle safety
information and the shower facility for the commercial
tenants of the Project.
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The TIC shall also include a list of facilities available for
carpoolers, vanpoolers, bicyclists, transit riders and pedestrians at
the site, including locations of EV charging stations, and car share
and bike share locations. Walking maps and information about
local services, restaurants, movie theaters and recreational
activities within walking distance of the Project shall also be made
available. Such transportation information shall be provided on-
site, regardless of whether also provided on a website.
B. Unbundled Parking. Developer shall lease (a) its parking to
residential tenants separately from the residential units and (b) its
employee parking to commercial tenants separately from the
commercial space. Such parking shall be leased at market rates
established by Developer from time to time. However, Developer
shall offer a parking space for the tenam(s) of the affordable units
at no additional cost, and shall provide a $100 rent reduction if the
affordable unit tenant(s) declines a parking space. Developer may,
subject to the Planning Director's approval, reconfigure the
parking spaces and operations from time -to -time in order to
facilitate unbundling of parking. Developer shall require in all
tenant leases it executes as landlord that each tenant charge its
employees for parking and that all subleases contain this same
provision.
C. Public Bicycle Parking. Developer shall provide bicycle parking
for public use in the amount of seven (7) short-term bicycle
parking spaces for commercial patrons and six (6) short-term
bicycle spaces for resident visitors (13 total public bike spaces), as
shown on the Project Plans.
D. Marketing. Developer shall periodically promote ridesharing
through newsletters or other communications to tenants, both
residential and commercial. Furthermore, Developer shall hold at
least one rideshare event annually for residential tenants and
commercial employees of the Project, which may be provided in
conjunction with the contemplated TMA.
E. Transportation Coordinator. Developer shall designate an existing
employee at the project site as the "Transportation Coordinator" to
be responsible for implementing, maintaining and monitoring the
TDM Plan. Once at least 50% of the residential units are occupied,
the Transportation Coordinator must be able to dedicate a
minimum of fifteen hours per week to overseeing the TDM Plan.
The Transportation Coordinator's contact information shall be
provided to the City and updated as necessary. The Transportation
Coordinator shall be responsible for promoting the TDM Plan to
employees and residents, updating information boards /websites,
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offering carpool and vanpool matching services and assisting with
route planning and will be the point of contact for administration
of the annual survey and TDM Plan report required by this
Agreement, in addition to any other services the Transportation
Coordinator may perform at the Project for Developer.
Transportation Coordinator services may be provided through the
TMA contemplated in DA Section (2)(B) below.
II. Measures Applicable to Project's Commercial Component Only
A. Target AVR. For employees of the commercial tenants, Developer
shall achieve an average vehicle ridership ( "AVR ") of 2.0 by the
third year after the City's issuance of a certificate of occupancy for
the Project and the 2.0 AVR shall continue to be achieved and
maintained thereafter. SMMC Chapter 9.16 in force and effect as
of the Effective Date, shall govern how the AVR is calculated.
Developer will determine its AVR through employee surveys for
one consecutive week each calendar year beginning the first year
the commercial component is at least 50% occupied. Developer
shall submit such baseline survey to the City at the time of
submittal of its annual compliance report for this Agreement. The
City shall monitor the TDM Plan performance as part of the City's
Periodic Review for the Project. If during any annual evaluation of
the Project's employee trip reduction plan, the AVR requirement
has not been achieved for the Project, then Developer shall propose
modifications to the TDM Plan that Developer considers likely to
achieve the AVR requirement by the date of the next annual
evaluation of the Project's employee trip reduction plan. In
addition, the City's Planning Director may recommend feasible
modifications to the TDM Plan. Failure to achieve the AVR
performance standard as provided in this Section (A) will not
constitute a Default within the meaning of the Agreement so long
as Developer is working cooperatively with the City and taking all
feasible steps to achieve compliance. The term "feasible" shall
have the meaning given that term in Section 21061.1 of the
California Public Resources Code.
For purposes of determining AVR, the survey must be conducted
in accordance with SMMC 9.16.070(d)(2)(1), except to the extent
modified by the Agreement below
"The survey must be taken over five consecutive
days during which the majority of employees are
scheduled to arrive at or leave the worksite. The
days chosen cannot contain a holiday and cannot
occur during `Rideshare Week' or other `event'
weeks (i.e., Bicycle Week, Walk to Work Week,
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Transit Week, etc.). This survey must have a
minimum response rate of seventy -five percent of
employees who report to or leave work between six
a.m. and ten a.m., inclusive, and seventy -five
percent of employees who report to or leave work
between three p.m. and seven p.m., inclusive.
Employers that achieve a ninety percent or better
survey response rate for the a.m. or p.m. window
may count the `no- survey responses' as `other'
when calculating their AVR ...
"The procedure for calculating AVR at a worksite
shall be as follows:
"(A) The AVR calculation shall be based
on data obtained from an employee survey as
defined in [SMMC Section 9.16.070(d)(2)], except
as provided herein.
"(B) AVR shall be calculated by dividing
the number of employees who report to or leave the
worksite by the number of vehicles arriving at or
leaving the worksite during the peak periods. All
employees who report to or leave the worksite that
are not accounted for by the employee survey shall
be calculated as one employee per vehicle arriving
at or leaving the worksite. Employees walking,
bicycling, telecommuting, using public transit,
arriving at the worksite in a zero emission vehicle,
or utilizing other shared ride shuttle services for at
least 75% of their commute shall be counted as
employees arriving at or leaving the worksite
without vehicles. Employees telecommuting or on
their day off under a recognized compressed work
week schedule shall also be counted as employees
arriving at or leaving the worksite without vehicles.
Motorcycles shall be counted as vehicles.
"(C) A child or student may be calculated
in the AVR as an additional passenger in the
carpool /vanpool if the child or student travels in the
car /van to a worksite or school /childcare facility for
the majority (at least fifty-one percent) of the total
commute.
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"(D) If two or more employees from
different employers commute in the same vehicle,
each employer must account for a proportional
share of the vehicle consistent with the number of
employees that employer has in the vehicle.
"(E) Any employee dropped off at a
worksite shall count as arriving in a
carpool /vanpool only if the driver of the
carpool /vanpool is continuing on to his /her
worksite.
"(F) Any employee telecommuting at
home, off -site, or at a telecommuting center for a
full work day, eliminating the trip to work or
reducing the total travel distance by at least fifty -
one percent shall be calculated as if the employee
arrived at the worksite in no vehicle.
(G) Zero emission vehicles (electric
vehicles) shall be calculated as zero vehicles
arriving at the worksite.
Furthermore, the definition of AVR contained in SMMC Section
9.16.030, as written on the Effective Date, shall govern how AVR
is calculated. That definition reads as follows:
"The total number of employees who report to or
leave the worksite or another job - related activity
during the peak periods divided by the number of
vehicles driven by these employees over that five -
day period. The AVR calculation requires that the
five -day period must represent the five days during
which the majority of employees are scheduled to
arrive at the worksite. The hours and days chosen
must be consecutive. The averaging period cannot
contain a holiday and shall represent a normal
situation so that a projection of the average vehicle
ridership during the year is obtained."
B. Transportation Demand Management Association. The property
owner and building tenants shall be required to participate in the
establishment of a Transportation Demand Management
Association ( "TMA ") that may be defined by the City. TMAs
provide employees, businesses, and visitors of an area with
resources to increase the amount of trips taken by transit, walking,
bicycling and carpooling. If a TMA is formed in the City,
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Developer shall participate as a full dues paying member of the
TMA. Developer shall require in all leases it executes as landlord
for space within the Project that building tenants be required to
participate in the TMA and that all subleases contain this same
provision. Developer may elect to provide some or all of the
services required by this TDM lean through the TMA.
C. Employee Transit Subsidy In Lieu of Parking. Developer shall
require in all tenant leases it executes as landlord that each tenant
offer its employees who do not purchase monthly automobile
parking in the Project a one month long Metro EZ Transit Pass (or
equivalent multi- agency monthly transit pass) at no cost, with such
passes provided on -site.
D. Employee Secure Bicycle Storage. Developer shall provide secure
bicycle parking for commercial employees in the amount of four
(4) long -term spaces as shown on the Project Plans. For the
purpose of this Section, secure bicycle parking shall mean bicycle
lockers, an attended cage, or a secure parking area. If the secure
bicycle storage is not secure individual bicycle lockers,
commercial employee secure bicycle storage shall be provided in
an area separate from the secure bicycle storage for residents.
E. Employee Showers and Locker Facilities. Two (2) single showers
and locker facility shall be provided for employees of commercial
uses on site who bicycle or use another active means, powered by
human propulsion, of getting to work or who exercise during the
work day.
F. Employee Flex -Time Schedule. The Developer shall require in all
leases it executes as landlord for space within the Project that,
when commercially feasible, employers shall permit employees
within the Project to adjust their work hours in order to
accommodate public transit schedules, rideshare arrangements, or
off -peak hour commuting.
G. Employee Guaranteed Return Trip. The Developer shall require in
all leases it executes as landlord for space within the Project that
tenants provide employees who rideshare (this includes transit
riders, vanpoolers, walkers, carpool), with a return trip to their
point of commute origin at no additional cost to the employee,
when a personal emergency situation such as personal and family
illness or injury requires it. Developer, or Developer's successor
in interest, shall be responsible for ensuring this obligation is
satisfied. The employee guaranteed return trip may be provided
through the TMA contemplated in Section (2)(B) of this condition.
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III. Measures Applicable to Project's Residential Component Only
A. Transit Welcome Package for Residents. The Developer shall
provide new residents of the Rental Housing Units of the Project
with a Resident Transit Welcome Package (RTWP). One RTWP
shall be provided to each unit upon the commencement of a new
tenancy. The RTWP at a minimum will include one voucher good
for a Metro EZ Transit Pass or equivalent multi- agency pass valid
for at least the first month of the tenant's residency, as well as area
bus /rail transit route information. The RTWP will also inform
residents about the Transit Information Center discussed in Section
(IRA) above and explain how to access the Transit Information
Center.
B. Marketing and Outreach to Downtown Employers and Employees.
Developer shall prepare and implement a marketing and outreach
plan designed to notify Downtown employers and their employees
of the Project's residential component for the purpose of
encouraging those that work in the Downtown area to consider
residing in the Project. Such plan shall be subject to reasonable
approval by the Planning Director. Developer shall market these
residential units exclusively to downtown employers and their
employees for a period of 90 days when these units are initially
offered for rent. As residential units become vacant, Developer
shall make reasonable efforts to contact Downtown employers and
their employees for the purpose of informing them of such
vacancies and the opportunity to live closer to their places of
employment.
C. Convenient and Secure Bicycle Storage for Residents. The
Developer shall provide a convenient and secure bicycle parking
area for residents of the Project in the Subterranean Space as
shown on the Project Plans that shall have sufficient space to
accommodate one (1) bicycle for each bedroom at the Project,
minimum 1 space per unit. For the purposes of this Section, secure
bicycle parking shall mean bicycle lockers, an attended cage, or a
secure parking room. If the secure bicycle storage is not secure
individual bicycle lockers, residential secure bicycle storage shall
be provided in an area separate from the secure bicycle storage for
commercial employees. Furthermore, the Developer shall provide
53 additional bike racks for residents above vehicular parking
racks in the subterranean garage.
IV. Changes to TDM Plan. Subject to the reasonable approval of the City's
Planning Director, the Developer may: (a) modify this TDM Plan
provided the TDM Plan, as modified, can be demonstrated as equal or
superior in its effectiveness at mitigating the traffic- generating effects of
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this Project or (b) modify this TDM Plan to help the Project achieve the
applicable AVR standards. The Planning Director may also propose
modifications to the TDM Plan to achieve the applicable AVR standards.
Changes to the TDM Plan in accordance with this Condition 2.IV shall be
treated as Minor Modifications pursuant to DA Section 2.4.2.
V. New TDM Ordinance. If the City adopts a new ordinance of general
application that updates or replaces Chapter 9.16 of the SMMC and that
applies to the geographic area in which the Property is located ( "New
TDM Ordinance "), then, subject to the Planning Director's approval in his
or her sole and absolute discretion, Developer may elect to comply with
the new TDM Ordinance in lieu of complying with the TDM Plan outlined
in this Agreement.
3. Transportation Infrastructure Contribution. On or before issuance of a
building permit for the Project, Developer shall make a $125,493 transit and
circulation infrastructure contribution to the City to be specifically used for
improvements in the Downtown area.
4. Colorado Esplanade Contribution: On or before issuance of a building permit
for the Project, Developer shall make a $125,000 contribution to the City to be
specifically used for the Colorado Esplanade project in the Downtown.
5. Open Space Contribution: On or before issuance of a building permit for the
Project, Developer shall make a $225,000 contribution to the City to be
specifically used for open space improvements in the Downtown area.
6. Big Blue Bus Contribution: On or before issuance of a building permit for the
Project, Developer shall make a $25,000 contribution to the City to be specifically
used for transit improvements in the Downtown.
7. Historic Preservation Contribution: Prior to obtaining a building permit for the
Project, Developer shall create a separate, interest - bearing trust fund and make a
contribution in the amount of twenty five thousand dollars ($25,000). The monies
available in this fund shall be used exclusively for historic preservation programs
for the Downtown area in the City. These monies shall be applied for and
distributed in accordance with a process, to be established by the Planning
Director, whereby those entities that are exclusively devoted to historic
preservation may make an application to receive distribution of some or all of the
trust funds.
8. LEEDS Gold Certification Requirement. Developer shall retain the services of
an accredited professional (the "LEEDS Professional) to consult with Developer
regarding inclusion of sustainable design features into the Project. Developer
shall design the Project so that, at a minimum, the Project shall have the number
of points that would be commensurate with achieving LEEDS "Gold"
certification under a LEEDS Rating System (the "Sustainable Design Status ").
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For purpose of clarity, Developer shall design the Project in a manner that
achieves the Sustainable Design Status; provided, however, that Developer shall
not be required to pay to the Green Building Certification Institute the fees
required to obtain a LEED® certificate. Developer shall confirm to the City that
the design for the Project has achieved the Sustainable Design Status in
accordance with the following requirements:
A. Prior to the submission of plans for Architecture Review Board review,
Developer shall submit a preliminary checklist of anticipated LEED®
credits (that shall be prepared by the LEED® professional) for review by
the City, along with a narrative to demonstrate that the Project is likely to
achieve the Sustainable Design Status.
B. Prior to issuance of a building permit, Developer shall grant access to the
City's Green Building Program Advisor as a "Project Team Manager" to
the project's documentation in the LEED Online system. The City's
Green Program Advisor will use this online documentation to verify that
the project is reasonably likely to achieve the Sustainable Design Status.
C. Prior to issuance of a final Certificate of Occupancy for the Project,
Developer shall provide to the City certification from the LEED®
Professional confirming that the Project has achieved Sustainable Design
Status.
D. Notwithstanding the foregoing, if the City has not verified that the
constructed Project has achieved the Sustainable Design Status, the City
shall nonetheless issue a temporary Certificate of Occupancy for the
Project (assuming that the Project is otherwise entitled to receive a
temporary Certificate of Occupancy). The temporary Certificate of
Occupancy shall be converted to a final Certificate of Occupancy once the
constructed Project has achieved the Sustainable Design Status.
E. If the Project is does not achieve Sustainable Design Status, Developer
shall ensure that the Project achieves certification to the Gold level under
the LEED Existing Buildings Operations & Maintenance (LEED EBOM)
rating system that is current at the time that the temporary Certificate of
Occupancy was issued for the Project. Developer shall ensure that the
Project achieves the Gold level LEED EBOM certification no later than 2
years after the temporary Certificate of Occupancy was issued for the
Project.
9. Photovoltaic Solar Panels. Photovoltaic solar panels shall be installed on the
roof deck in accordance with the Project Plans.
10. Electric Vehicle Charging Stations. Developer shall install in the subterranean
parking garage not less than five (5) 208/240 V 40 amp AC outlets (or panel
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capacity and conduit for the future installation of such 5 electrical outlets),
designed to allow the simultaneous charging of electric vehicles.
11. Local Hiring. Developer shall implement the local hiring program set forth in
Exhibit 'T'.
12. Project Design. As a result of this Agreement, there are enhanced elements of
the Project design, including an Enhanced Walkway Area as shown on the Project
Plans. Developer shall make the Enhanced Walkway Area accessible to the
public at all times, except between the hours of 2:00am through 6:00 am. The
public use of that certain area designated on the Project Plans as "Enhanced
Walkway" shall be: (i) consistent with the terms and conditions of this
Agreement; (ii) solely for pedestrian access to and passive use of the Enhanced
Walkway by the public, including walking, strolling, and similar activity; and (iii)
compatible with Developer's development, use and enjoyment of the Project. No
use other than pedestrian access to and passive use of the Enhanced Walkway by
the public shall be permitted on the Enhanced Walkway. Notwithstanding the
above, Developer may limit public access to the Enhanced Walkway Area during
other hours, but only if the Enhanced Walkway area is utilized for outdoor dining.
13. Ground floor commercial tenant spaces shall maintain exposed ceilings to ensure
adequate floor to ceiling heights for prospective commercial tenants.
CITY PLANNING
Administrative Conditions
14. 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
15. This approval is for those plans dated 5/14/13, 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.
16. 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.
17. 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
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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
18. 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.
19. No building permit shall be issued for the project until the developer complies
with the requirements of Chapter 9.72 of the Santa Monica Municipal Code, the
Child Care Linkage Program.
Cultural Resources
20. Except as other provided by the Development Agreement, 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.
21. If any archaeological remains are uncovered during excavation or construction,
work in the affected area shall be suspended and a recognized specialist shall be
contacted to conduct a survey of the affected area at project's owner's expense. A
determination shall then be made by the Director of Planning to determine the
significance of the survey findings and appropriate actions and requirements, if
any, to address such findings.
Project Operations
22. 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.
23. The project shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
Final Design
24. Plans for final design, landscaping, screening, trash enclosures, and signage shall
be subject to review and approval by the Architectural Review Board.
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25. The Architectural Review Board, in its review, shall pay particular attention to the
courtyard aesthetic design, including ground floor unit entrances, layout, and
overall circulation and accessibility.
26. The Architectural Review Board, in its review, shall reevaluate the floating frame
element on the front building elevation.
27. Landscaping plans shall comply with Subchapter 9.04.10.04 (Landscaping
Standards) of the Zoning Ordinance including use of water - conserving
landscaping materials, landscape maintenance and other standards contained in
the Subchapter.
28. 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.
29. 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.
30. 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.
31. As appropriate, the Architectural Review Board shall require the use of anti-
graffiti materials on surfaces likely to attract graffiti.
Construction Plan Requirements
32. 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
33. 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,
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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.
34. 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
35. Construction Moratorium: There shall be no construction activities that require
opening, closing, or blocking of streets, sidewalks, alleys, or street parking in
retail areas of the City over the holiday season that runs from the day before
Thanksgiving through January 2nd. Exemptions are allowed for emergencies and
special conditions authorized in advance by the Director of Public Works. The
following areas are affected by this condition: Downtown (Wilshire to the 10
Freeway and Lincoln to Ocean Avenue; Main Street (Pico to the Southerly city
limit); Montana Avenue (6th Court to 17th Street); Pico Boulevard (from the
Ocean to the Easterly city limit at Centinela).
36. Any construction related activity in the public right -of -way will be required to
acquire the approvals by the City of Santa Monica, including but not limited to:
Use of Public Property Permits, Sewer Permits, Excavation Permits, Alley
Closure Permits, Street Closure Permits, and Temporary Traffic Control Plans.
37. 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.
38. 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.
39. 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:
40. 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.
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41. 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.
42. Soils stockpiles shall be covered.
43. Onsite vehicle speeds shall be limited to 15 mph.
44. 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.
45. An appointed construction relations officer shall act as a community liaison
concerning onsite construction activity including resolution of issues related to
PM10 generation.
46. 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).
47. All active portions the construction site shall be sufficiently watered three times a
day to prevent excessive amounts of dust.
48. Developer shall prepare a notice, subject to the review by the Director of Planning
and Community Development, that lists all construction mitigation requirements,
permitted hours of construction, and identifies a contact person at City Hall as
well as the developer who will respond to complaints related to the proposed
construction. The notice shall be mailed to property owners and residents of the
neighborhood within 500 feet of the Project at least five (5) days prior to the start
of construction.
49. 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.
50. 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.
51. 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.
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52. Construction period signage shall be subject to the approval of the Architectural
Review Board.
Standard Conditions
53. 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.
54. 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.
55. The property owner shall insure any graffiti on the site is promptly removed
through compliance with the City's graffiti removal program.
Condition Monitoring
56. 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.
STRATEGIC AND TRANSPORTATION PLANNING
57. Final auto parking, bicycle parking and loading layouts specifications shall be
subject to the review and approval of the Strategic and Transportation Planning
Division:
http: / /w, A,w.smgov.net /uploadedFiles/ Departments /Transportation/Transportation
Management /ParkingStandards.pdf
58. Where a driveway, garage, parking space or loading zone intersects with the
public right -of -way at the alley or sidewalk, hazardous visual obstruction triangles
shall be provided in accordance with SMMC Section 9.04.10.02.090. Please
reference the following standards:
http: / /www. smgov. net /uploadedFi l es/ Departments /Transportation/Transportation
Management /HVO.pdf
59. Slopes of all driveways and ramps used for ingress or egress of parking facilities
shall be designed in accordance with the standards established by the Strategic
and Transportation Planning Manager but shall not exceed a twenty percent slope.
Please reference the following standards:
http: / /www. smaov. net /uploadedFiles/ Departments /`Fransportation/Transportation
Management /RampSlopg.pdf
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60. [RESERVED]
61. [RESERVED]
BIG BLUE BUS
62. For the life of the project, the property owner shall notify all tenants (residential
and /or commercial) in writing as part of their lease or rental agreement that the
City envisions a network of transit services in the Downtown area that may result
in public transit services operating on any street in the Downtown area, both on
streets currently used by transit or through expansion of service to streets not
currently utilized by transit. In addition, new bus stops or bus layover zones may
be established on these streets for regular use by either the Big Blue Bus or other
fixed route or specialized transit operators. On- street parking may be removed at
any time to create a bus zone in an appropriate location for safe vehicular
movement and passenger safety regardless of business or residential adjacency.
Developer, or Developer's successor in interest, shall be responsible for ensuring
this obligation is satisfied.
63. Structures that include spaces specifically intended for seniors and/or persons
with disabilities should include an appropriate space for the boarding and
alighting of this population into specialty vehicles in a safe location such that the
stopped vehicle will not interfere with traffic flow.
PUBLIC LANDSCAPE
64. Street trees shall be maintained, relocated or provided as required in a manner
consistent with the City's Urban Forest Master Plan, per the specifications of the
Public Landscape Division of the Community & Cultural Services Department
and the City's Tree Code (SMMC Chapter 7.40). No street trees shall be removed
without the approval of the Public Landscape Division.
65. Prior to the issuance of a demolition permit all street trees that are adjacent to or
will be impacted by the demolition or construction access shall have tree
protection zones established in accordance with the Urban Forest Master Plan.
All tree protection zones shall remain in place until demolition and/or
construction has been completed.
66. Replace or plant new street trees in accordance with in accordance with Urban
Forest Master Plan and in consultation with city arborist
OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT
67. Developer shall enroll the property in the Savings By Design incentive program
where available through Southern California Edison prior to submittal of plans for
Architectural Review. Developer shall execute an incentive agreement with
Southern California Edison prior to the issuance of a building permit.
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68. The project shall comply with requirements in section 8.106 of the Santa Monica
Municipal code, which adopts by reference the California Green Building
Standards Code and which adds local amendments to that Code. In addition, the
project shall meet the landscape water conservation and construction and
demolition waste diversion requirements specified in Section 8.108 of the Santa
Monica Municipal Code.
RENT CONTROL
69. Pursuant to SMMC Section 4.24.030, prior to receipt of the final permit necessary
to demolish, convert, or otherwise remove a controlled rental unit(s) from the
housing market, the owner of the property shall first secure a removal permit
under Section 1803(t), an exemption determination, an approval of a vested rights
claim from the Rent Control board, or have withdrawn the controlled rental
unit(s) pursuant to the provisions of the Ellis Act.
HOUSING AND ECONOMIC DEVELOPMENT
70. In accordance with Condition No. 1, the Developer shall meet its affordable
housing obligation through the development of on -site units for very -low income
tenants pursuant to the City's Affordable Housing Production Program (SMMC
Chapter 9.56). Specifically, five (5) very -low income one - bedroom units shall be
provided and maintained to satisfy AHPP requirements. Furthermore, the project
shall provide and maintain three (3) additional low income studio units as a
community benefit, for a total of eight (8) affordable units on -site. All eight (8)
affordable housing units shall be deed restricted in accordance with the City's
Affordable Housing Production Program.
To ensure AHPP compliance, a monitoring fee will be applied to each affordable
unit produced. A separate fee has been established for a new unit start-up,
subsequent re- occupancy /resale and an annual monitoring fee.
The Administrative Guidelines for the AHPP (fee structures, costs, and
affordability limits) are updated annually and available on the Santa Monica
House and Economic Development website.
71. Pursuant to Chapter 4.36 of the Santa Monica Municipal Code, relocation
assistance shall be provided, by the owner, to a tenant whose tenancy is
terminated as a result of the removal of a housing unit from the rental housing
market. The relocation fee is determined according to the size (number of
bedrooms) of the unit. The fee is adjusted each July I't, based on the rent of
primary resident component of the CPI -W Index for Los
Angeles /Riverside /Orange County area, as published by the United States
Department of Labor.
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72. The City of Santa Monica operates four weekly farmers markets
(http: / /www.smgov .net /portals /farmersmarket/ for details). For properties
abutting or adjacent to the City of Santa Monica's Farmers Markets:
A. Construction shall not obstruct or impede the market operations, either for
market participants or pedestrian customers. Overall access to the markets
must be maintained — including alleys, parking structures, parking lots,
street access, overflow parking, Bike Valet, special permit areas, street
closures and any other ingress or egress from the farmers market site on
market days. In the event of street or alley closures, alternate routes must
be identified with adequate signage and Police (TSO's) deployed to direct
traffic if necessary, and should be coordinated with the Farmers Market
Supervisor. Sub - contract utility work will not be permitted on market
days on or adjacent to the market sites.
B. The property owner shall notify all tenants (residential and/or commercial)
in writing as part of their lease or rental agreement that the City operates
the weekly farmers market adjacent to their property. The Downtown
Santa Monica Farmers Market's operation requirements include road
closures and the temporary removal of some on- street parking on market
days. Storefronts fronting on the Downtown SM market (Arizona
Avenue, 2nd Street) may be obscured during market operations by larger
vehicles; in such cases the Farmers Market Manager will work with the
tenant(s) to help enhance visibility during the market.
PUBLIC WORKS
General Conditions
73. 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
C. Tieback Encroachment
f Encroachment of on -site improvements into public right -of -way
g. Construction and Demolition Waste Management — If the valuation of a
project is at least $50,000 or if the total square feet of the project is equal
to or greater than 1000 square feet, then the owner or contractor is
required to complete and submit a Waste Management Plan. All
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demolition projects are required to submit a Waste Management Plan. A
performance deposit is collected for all Waste Management Plans equal to
3% of the project value, not to exceed $30,000. All demolition only
permits require a $1,000 deposit or $1.00 per square foot, whichever is the
greater of the two.
Some of these fees shall be reimbursed to developer in accordance with the City's
standard practice should Developer not proceed with development of the Project.
In order to receive a refund of the Construction and Demolition performance
deposit, the owner or contractor must provide receipts of recycling 70% of all
materials listed on the Waste Management Plan.
74. 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.
75. 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.
76. 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.
77. 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.
78. 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 Building & Safety 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
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79. Connections to the sewer or storm drains require a sewer permit front 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.
80. 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.
81. 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.
82. Prior to the issuance of the first building permit, the applicant shall submit a
sewer study that shows that the City's sewer system can accommodate the entire
development. Developer shall be responsible to upgrade any downstream
deficiencies, to the satisfaction of the Water Resources Manager, if calculations
show that the project will cause such mains to receive greater demand than can be
accommodated. Improvement plans shall be submitted to the Engineering
Division. All reports and plans shall also be approved by the Water Resources
Engineer.
83. Prior to the issuance of the first building permit, the applicant shall submit a water
study that shows that the City's water system can accommodate the entire
development for fire flows and all potable needs. Developer shall be responsible
to upgrade any water flow /pressure deficiencies, to the satisfaction of the Water
Resources Manager, if calculations show that the project will cause such mains to
receive greater demand than can be accommodated. Improvement plans shall be
submitted to the Engineering Division. All reports and plans shall also be
approved by the Water Resources Engineer.
84. Prior to the issuance of the first building permit, the applicant shall submit a
hydrology study of all drainage to and from the site to demonstrate adequacy of
the existing storm drain system for the entire development. Developer shall be
responsible to upgrade any system deficiencies, to the satisfaction of City
Engineer, if calculations show that the project will cause such facilities to receive
greater demand than can be accommodated. All reports and improvement plans
shall be submitted to Engineering Division for review and approval. The study
shall be performed by a Registered Civil Engineer licensed in the State of
California.
85. Developer shall not directly connect to a public storm drain pipe or direct site
drainage to the public alley.
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86. All existing sanitary sewer "house connections" to be abandoned, shall be
removed and capped at the "Y" connections.
87. The fire services and domestic services 3- inches or greater must be above ground,
on the applicant's site, readily accessible for testing. Commercial or residential
units are required to either have an individual water meter or a master meter with
sub - meters.
88. 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 /encirp /ehcross.htm. Prior to issuance of a
Certificate of Occupancy, a cross - connection inspection shall be completed.
89. 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.
90. Plumbing fixtures that meet the standards for 20% water use reduction specified
in the California Green Building Standards Code are required on all new
development and remodeling where plumbing is to be added.
Urban Water Runoff Mitigation
91. To mitigate storm water and surface runoff from the project site, an Urban Runoff
Mitigation Plan shall be required by the PWD pursuant to Municipal Code
Chapter 7.10. Prior to submittal of landscape plans for Architectural Review
Board approval, the applicant shall contact PWD to determine applicable
requirements, such as:
a. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution
Ordinance for the construction phase and post construction activities;
b. Non - stormwater runoff, sediment and construction waste from the
construction site and parking areas is prohibited from leaving the site;
C. Any sediments or materials which are tracked off -site must be removed
the same day they are tracked off -site;
d. Excavated soil must be located on the site and soil piles should be covered
and otherwise protected so that sediments are not tracked into the street or
adjoining properties;
e. No runoff from the construction site shall be allowed to leave the site; and
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f. Drainage control measures shall be required depending on the extent of
grading and topography of the site.
g. Development sites that result in land disturbance of one acre or more are
required by the State Water Resources Control Board (SWRCB) to submit
a Storm Water Pollution Prevention Plan ( SWPPP). Effective September
2, 2011, only individuals who have been certified by the Board as a
"Qualified SWPPP Developer" are qualified to develop and /or revise
SWPPPs. A copy of the SWPPP shall also be submitted to the PWD.
92. Prior to implementing any temporary construction dewatering or permanent
groundwater seepage pumping, a permit is required from the City Water
Resources Protection Program (WRPP). Please contact the WRPP for permit
requirements at least two weeks in advance of planned dewatering or seepage
pumping. They can be reached at (310) 458 -8235.
Public Streets & Right -of -Way
93. Prior to the issuance of a Certificate of Occupancy for the Project, all required
offsite improvements, such as AC pavement rehabilitation, replacement of
sidewalk, curbs and gutters, installation of street trees, lighting, etc. shall be
designed and installed to the satisfaction of the Public Works Department and
Public Landscape Division.
94. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and
passable during the grading and construction phase of the project.
95. Sidewalks, curbs, gutters, paving and driveways which need replacing or removal
as a result of the project or needed improvement prior to the project, as
determined by the PWD shall be reconstructed to the satisfaction of the PWD.
Design, materials and workmanship shall match the adjacent elements. This is
especially true for areas within the City that have architectural concrete, pavers,
tree wells, art elements, special landscaping, etc.
96. Street and alley sections adjacent to the development shall be replaced as
determined by the PWD. This typically requires full reconstruction of the street
or alley in accordance with City of Santa Monica standards for the full adjacent
length of the property.
Utilities
97. No Excavation Permit shall be issued without a Telecommunications
Investigation by the City of Santa Monica Information Systems Department. The
telecommunications investigation shall provide a list of recommendations to be
incorporated into the project design including, but not limited to measures
associated with joint trench opportunities, location of tie -back and other
underground installations, telecommunications conduit size and specifications,
fiber optic cable specifications, telecommunications vault size and placement and
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specifications, interior riser conduit and fiber optic cable, and adjacent public
right of way enhancements. Developer shall install two Telecommunications
Vaults in either the street, alley and/or sidewalk locations dedicated solely for
City of Santa Monica use. Developer shall provide two unique,
telecommunication conduit routes and fiber optic cables from building
Telecommunications Room to Telecommunications Vaults in street, alley and /or
sidewalk. Developer will be responsible for paying for the connection of each
Telecommunications Vault to the existing City of Santa Monica fiber optic
network, or the extension of conduit and fiber optic cable for a maximum of Ilan
terminating in a new Telecommunications Vault for future interconnection with
City network. The final telecommunications design plans for the project site shall
be submitted to and approved by the City of Santa Monica Information Systems
Department prior to approval of project.
a. Project shall comply with City of Santa Monica Telecommunications
Guidelines
b. Project shall comply with City of Santa Monica Right -of -Way
Management Ordinance No. 2129CCS, Section 3 (part), adopted 7/13/04
98. Prior to the issuance of a Certificate of Occupancy for the Project, provide new
street - pedestrian lighting with a multiple circuit system along the new street right -
of -way and within the development site in compliance with the PWD Standards
and requirements. New street - pedestrian light poles, fixtures and appurtenances
to meet City standards and requirements.
99. Prior to submitting plans, make arrangements with all affected utility companies
and indicate points of connection for all services on the site plan drawing. Pay for
undergrounding of all overhead utilities within and along the development
frontages. Existing and proposed overhead utilities need to be relocated
underground.
100. Location of Southern California Edison electrical transformer and switch
equipment /structures must be clearly shown of the development site plan and
other appropriate plans within the project limits. The SCE structures serving the
proposed development shall not be located in the public right -of -way.
Resource Recovery and Recycling
101. Development plans must show the refuse and recycling (RR) area dimensions to
demonstrate adequate and easily accessible area. If the RR area is completely
enclosed, then lighting, ventilation and floor drain connected to sewer will be
required. Section 9.04.10.02.151 of the SMMC has dimensional requirements for
various sizes and types of projects. Developments that place the RR area in
subterranean garages must also provide a bin staging area on their property for the
bins to be placed for collection.
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102. Contact Resource Recovery and Recycling RRR division to obtain dimensions of
the refuse recycling enclosure.
103. Prior to issuance of a Permit, submit a waste management plan, a map of the
enclosure and staging area with dimensions and a recycling plan to the RRR
Division for its approval. The State of California AB 341 requires any multi-
family building housing 5 units or more to have a recycling program in place for
its tenants. All commercial businesses generating 4 cubic yards of trash per week
must also have a recycling program in place for its employees and
clients /customers. Show compliance with these requirements on the building
plans. Visit the Resource Recovery and Recycling (RRR) website or contact the
RRR Division for requirements of the Waste Management Plan and to obtain the
minimum dimensions of the refuse recycling enclosure. The recycling plan shall
include:
a. List of materials such as white paper, computer paper, metal cans, and
glass to be recycled;
b. Location of recycling bins;
C. Designated recycling coordinator;
d. Nature and extent of internal and external pick -up service;
e. Pick -up schedule; and
f. Plan to inform tenants/ occupants of service.
Construction Period Mitigation
104. A construction period mitigation plan shall be prepared by the applicant for
approval by the PWD prior to issuance of a building permit. The approved
mitigation plan shall be posted on the site for the duration of the project
construction and shall be produced upon request. As applicable, this plan shall:
a. Specify the names, addresses, telephone numbers and business license
numbers of all contractors and subcontractors as well as the developer and
architect;
b. Describe how demolition of any existing structures is to be accomplished;
C. Indicate where any cranes are to be located for erection/construction;
d. Describe how much of the public street, alleyway, or sidewalk is proposed
to be used in conjunction with construction;
e. Set forth the extent and nature of any pile- driving operations;
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f Describe the length and number of any tiebacks which must extend under
the public right -of -way and other private properties;
g. Specify the nature and extent of any dewatering and its effect on any
adjacent buildings;
h. Describe anticipated construction - related truck routes, number of truck
trips, hours of hauling and parking location;
i. Specify the nature and extent of any helicopter hauling;
j. State whether any construction activity beyond normally permitted hours
is proposed;
k. Describe any proposed construction noise mitigation measures, including
measures to limit the duration of idling construction trucks;
1. Describe construction - period security measures including any fencing,
lighting, and security personnel;
M. Provide a grading and drainage .plan;
n. Provide a construction - period parking plan which shall minimize use of
public streets for parking;
o. List a designated on -site construction manager;
P. Provide a construction materials recycling plan which seeks to maximize
the reuse /recycling of construction waste;
q. Provide a plan regarding use of recycled and low- environmental- impact
materials in building construction; and
r. Provide a construction period urban runoff control plan.
Air Quality
105. Dust generated by the development activities shall be kept to a minimum with a
goal of retaining dust on the site through implementation of the following
measures recommended by the SCAQMD Rule 403 Handbook:
• During clearing, grading, earth moving, excavation, or transportation of
cut or fill materials, water trucks or sprinkler systems are to be used to the
extent necessary to prevent dust from leaving the site and to create a crust
after each day's activities cease.
• 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
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emissions. Immediately after commencing dirt removal from the site, the
general contractor shall provide the City with written certification that all
trucks leaving the site are covered in accordance with this condition of
approval.
During clearing, grading, earth moving, excavation, or transportation of
cut or fill materials, streets and sidewalks within 150 feet of the site perimeter
shall be swept and cleaned a minimum of twice weekly or as frequently as
required by the PWD.
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.
Soil stockpiled for more than two days shall be covered, kept moist, or
treated with soil binders to prevent dust generation.
106. Construction equipment used on the site shall meet the following conditions in
order to minimize NOx and ROC emissions:
• Diesel - powered equipment such as booster pumps or generators should be
replaced by electric equipment to the extent feasible; and
• The operation of heavy -duty construction equipment shall be limited to no
more than 5 pieces of equipment at one time.
Noise Attenuation
107. All diesel equipment shall be operated with closed engine doors and shall be
equipped with factory- recommended mufflers.
108. Electrical power shall be used to run air compressors and similar power tools.
109. 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
110. For temporary excavation and shoring that includes tiebacks into the public right -
of -way, a Tieback Agreement, prepared by the City Attorney, will be required.
FIRE
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General Requirements
The following comments are to be included on plans if applicable.
Requirements are based on the California Fire Code (CFC), the Santa Monica Municipal
Code (SMMC) and the California Building Code (CBC).
California Fire Code/ Santa Monica Fire Department Requirements
111. A fire apparatus access road shall be provided to within 150 feet of all exterior
walls of the first floor of the building. The route of the fire apparatus access road
shall be approved by the fire department. The 150 feet is measured by means of
an unobstructed route around the exterior of the building.
112. Apparatus access roads shall have a minimum unobstructed width of 20 feet. A
minimum vertical clearance of 13 feet 6 inches shall be provided for the apparatus
access roads.
113. Dead -end fire apparatus access roads in excess of 150 feet in length shall be
provided with an approved means for turning around the apparatus.
114. A "Knox" key storage box shall be provided for ALL new construction. For
buildings, other than high -rise, a minimum of 3 complete sets of keys shall be
provided. Keys shall be provided for all exterior entry doors, fire protection
equipment control equipment rooms, mechanical and electrical rooms, elevator
controls and equipment spaces, etc. For high -rise buildings, 6 complete sets are
required.
115. Santa Monica Municipal Code Chapter 8 section 8.44.050 requires an approved
automatic fire sprinkler system in ALL new construction and certain remodels or
additions. Any building that does not have a designated occupant and use at the
time fire sprinkler plans are submitted for approval, the system shall be designed
and installed to deliver a minimum density of not less than that required for
ordinary hazard, Group 2, with a minimum design area of not less than three
thousand square feet. Plans and specifications for fire sprinkler systems shall be
submitted and approved prior to system installation.
116. Buildings four or more stories in height shall be provided with not less than one
standpipe during construction.
117. The standpipe(s) shall be installed before the progress of construction is more
than 35- feet above grade. Two - and - one - half -inch valve hose connections shall .
be provided at approved, accessible locations adjacent to useable stairs.
Temporary standpipes shall be capable of delivering a minimum demand of 500
gpm at 100 -psi residual pressure. Pumping equipment shall be capable of
providing the required pressure and volume.
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118. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum
rating of 2A- IOB:C. Extinguishers shall be located on every floor or level.
Maximum travel distance from any point in space or building shall not exceed 75
feet. Extinguishers shall be mounted on wall or installed in cabinet no higher than
4 ft. above finished floor and plainly visible and readily accessible or signage
shall be provided.
119. An automatic fire extinguishing system complying with UL 300 shall be provided
to protect commercial -type cooking or heating equipment that produces grease -
laden vapors. A separate plan submittal is required for the installation of the
system and shall be in accordance with UFC Article 10, NFPA 17A and NFPA
96. Provide a Class "K" type portable fire extinguisher within 30 feet the kitchen
appliances emitting grease -laden vapors.
120. Every building and/or business suite is required to post address numbers that are
visible from the street and alley. Address numbers shall be a minimum of six (6)
inches in height and contrast with their background. Suite or room numbers shall
be a minimum of four (4) inches in height and contrast with their background.
Santa Monica Municipal Code Chapter 8 Section 8.48.130 (1) (1)
121. When more than one exit is required they shall be arranged so that it is possible to
go in either direction to a separate exit, except deadends not exceeding 20 feet,
and 50 feet in fully sprinklered buildings.
122. Exit and directional signs shall be installed at every required exit doorway,
intersection of corridors, exit stairways and at other such locations and intervals
as necessary to clearly indicate the direction of egress. This occupancy /use
requires the installation of approved floor level exit pathway marking. Exit doors
shall be openable from the inside without the use of a key, special effort or
knowledge.
123. Show ALL door hardware intended for installation on Exit doors.
124. In buildings two stories or more in height an approved floor plan providing
emergency procedure information shall be posted at the entrance to each stairway,
in every elevator lobby, and immediately inside all entrances to the building. The
information shall be posted so that it describes the represented floor and can be
easily seen upon entering the floor level or the building. Required information
shall meet the minimum standards established in the Santa Monica Fire
Department, Fire Prevention Division, information sheet entitled "Evacuation
Floor Plan Signs." (California Code of Regulations Title 19 Section 3.09)
125. Stairway Identification shall be in compliance with CBC 1022.8
126. Floor -level exit signs are required in Group A, E, I, R -1, R -2 and R -4
occupancies.
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127. In buildings two stories in height at least one elevator shall conform to the
California Building Code Chapter 30 section 3003.5a for General Stretcher
Requirements for medical emergency use.
a. The elevator entrance shall not be less than 42 inches wide by 72 inches
high.
b. The elevator car shall have a minimum clear distance between walls
excluding return panels of not less than 80 inches by 54 inches.
C. Medical emergency elevators shall be identified by the international
symbol (star of life) for emergency elevator use. The symbol shall be not
less than 3- inches in size.
128. Storage, dispensing or use of any flammable or combustible liquids, flammable
compressed gases or other hazardous materials shall comply with the Uniform
Fire Code. The Santa Monica Fire Department prior to any materials being stored
or used on site shall approve the storage and use of any hazardous materials.
Complete and submit a "Consolidated Permit Application Package." Copies may
be obtained by calling (310) 458 -8915.
129. Alarm - initiating devices, alarm- notification devices and other fire alarm system
components shall be designed and installed in accordance with the appropriate
standards of Chapter 35 of the Building Code, and the National Fire Alarm Code
NFPA 72. The fire alarm system shall include visual notification appliances for
warning the hearing impaired. Approved visual appliances shall be installed in
ALL rooms except private (individual) offices, closets, etc.
130. An approved fire alarm system shall be installed as follows:
131. Group A Occupancies with an occupant load of 1,000 or more shall be provided
with a manual fire alarm system, and an approved prerecorded message
announcement using an approved voice communication system. Emergency
power shall be provided for the voice communication system.
132. Group E Occupancies having occupant loads of 50 or more shall be provided with
an approved manual fire alarm system.
133. Group R -1, R -2 Apartment houses containing 16 or more dwelling units, in
building three or more stories in height R -2.1 and R -4 Occupancies shall be
provided with a manual alarm system. Smoke detectors shall be provided in all
common areas and interior corridors of required exits. Recreational, laundry,
furnace rooms and similar areas shall be provided with heat detectors.
134. Plans and specifications for fire alarm systems shall be submitted and approved
prior to system installation
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Santa Monica Fire Department - Fire Prevention Policy Number 5 -1
Subject: Fire Apparatus Access Road Requirements
Scope: This policy identifies the minimum standards for apparatus access roads required
by California Fire Code, Section 503.
Application
135. Fire apparatus access roads shall comply with the following minimum standards:
a. The minimum clear width shall be not less than 20 feet. No parking,
stopping or standing of vehicles is permitted in this clear width.
b. When fire hydrants or fire department connections to fire sprinkler
systems are located on fire apparatus access roads the minimum width
shall be 26 feet. This additional width shall extend for 20 feet on each side
of the centerline of the fire hydrant or fire department connection.
C. The minimum vertical clearance shall be 13 feet, 6 inches.
d. The minimum turn radius for all access road turns shall be not less than 39
feet for the inside radius and 45 feet for the outside radius.
e. Dead -end access roads in excess of 150 feet in length shall be provided
with either a 96 feet diameter "cul -de- sac," 60 foot "Y" or 120 -foot
"hammerhead" to allow the apparatus to turn.
f The surface shall be designed and maintained to support the imposed loads
of at least 75,000 -pound and shall be "all- weather." An "all- weather"
surface is asphalt, concrete or other approved driving surface capable of
supporting the load.
136. Gates installed on fire apparatus access roads shall comply with the following:
a. The width of any gate installed on a fire apparatus access road shall be a
minimum of 20 feet.
b. Gates may be of the swinging or sliding type.
C. Gates shall be constructed of materials that will allow for manual
operation by one person.
d. All gate components shall be maintained in an operative condition at all
times and shall be repaired or replaced when defective.
e. Electric gates shall be equipped with a means of opening the gate by fire
department personnel for emergency access. The Fire Prevention Division
shall approve emergency opening devices.
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f. Manual opening gates may be locked with a padlock, as long it is
accessible to be opened by means of forcible entry tools.
g. The Fire Prevention Division shall approve locking device specification.
96'
28' R
TYP'
26'
96 DIAMETER
CUL -DE -SAC
28'R
TYP.'
a
--7
20--j
120! HAMMERHEAD
t
20'-L
20'—T
26'
� 20'
60' Y' MINIMUM CLEARANCE
AROUND A FIRE
HYDRANT
28' R
TYP
I
7T•
20'-T
20'
ACCEPTABLE ALTERNATIVE
TO 120' HAMMERHEAD
137. Fire apparatus access roads shall be marked with permanent NO PARKING —
FIRE LANE CVC SECTION 22500.1. Signs shall have a minimum dimension of
12 inches wide and 18 inches high having red letters on a white reflective
background.
a. Fire apparatus access roads signs and placement shall comply with the
following:
i. Fire Apparatus access roads 20 to 26 feet wide must be posted on
both sides as a fire lane.
ii. Fire Apparatus access roads 26 to 32 feet wide must be posted on
one side as a fire lane.
138. Buildings or facilities exceeding 30 feet in height or more than 3 stories in height
shall have at least 2 fire apparatus access roads for each structure.
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139. Fire apparatus access roads for commercial and industrial development shall
comply with the following:
i. Buildings or facilities exceeding 30 feet in height or more than 3 stories in
height shall have at least 2 means of fire apparatus access for each
structure.
ii. Buildings or facilities having a gross floor area of more than 62,000
square feet shall be provided with 2 fire apparatus access roads.
iii. When two access roads are required, they shall be placed a distance apart
equal to not less than one half of the length of the maximum overall
diagonal dimension of the property or area to be accessed measured in a
straight line between access.
140. Aerial apparatus access roads shall comply with the following:
i. Buildings or portions of buildings or facilities exceeding 30 feet in height
from the lowest point of Fire Department access shall be provided shall be
provided with approved apparatus access roads capable of accommodating
aerial apparatus.
ii. Apparatus access roads shall have a minimum width of 26 feet in the
immediate vicinity of any building or portion of a building more than 30
feet in height.
iii. At least one of the required access roads meeting this condition shall be
located within a minimum of 15 feet and maximum of 30 feet from the
building and shall be a positioned parallel to one entire side of the
building.
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141. California Building Code / Santa Monica Fire Department Requirements
Occupancy Classification and Division
• If a change in occupancy or use, identify the existing and all proposed new
occupancy classifications and uses
• Assembly (A -1, A -2, A -3), Business (B), Mercantile (M), Residential (R), etc.
• Include.all accessory uses
Building Height
• Height in feet (SMMC defines a High -Rise as any structure greater then 55
feet.)
• Number of stories
• Detail increase in allowable height
• Type 1 (II -FR.) buildings housing Group B office or Group R, Division 1
Occupancies each having floors used for human occupancy located more than
55 feet above the lowest level of fire department vehicle access shall comply
with CBC Section 403.
a. Automatic sprinkler system.
b. Smoke - detection systems.
c. Smoke control system conforming to Chapter 9 section 909.
d. Fire alarm and communication systems.
1. Emergency voice alarm signaling system.
2. Fire department communication system.
e. Central control station. (96 square feet minimum with a
minimum dimension of 8' ft.)
f {omitted)
g. Elevators.
h. Standby power and light and emergency systems.
i. Exits
j. Seismic consideration.
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Total Floor Area of Building or Project
e Basic Allowable Floor Area
• Floor Area for each room or area
e Detail allowable area increase calculations
Corridor Construction
• Type of Construction
• Detail any and all code exceptions being used
Occupant Load Calculations
• Occupancy Classification for each room or area.
• Occupant Load Calculation for each room or area based on use or occupancy
• Total Proposed Occupant Load
Means of Egress
• Exit width calculations
• Exit path of travel
• Exit Signage and Pathway Illumination (low level exit signage)
Atria - Atria shall comply with CBC Section 404 as follows:
• Atria shall not be permitted in buildings containing Group H Occupancies.
• The entire building shall be sprinklered.
• A mechanically operated smoke - control system meeting the requirements of
Section 909 and 909.9 shall be installed.
• Smoke detectors shall be installed in accordance with the Fire Code.
• Except for open exit balconies within the atrium, the atrium shall be separated
from adjacent spaces by one -hour fire- resistive construction. See exceptions to
Section 404.6.
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® When a required exit enters the atrium space, the travel distance from the
doorway of the tenant space to an enclosed stairway, horizontal exit, exterior
door or exit passageway shall not exceed 200 feet.
e In other than jails, prisons and reformatories, sleeping rooms of Group I
Occupancies shall not have required exits through the atrium.
® Standby power shall be provided for the atrium and tenant space smoke -
control system. Sections 404.7 and 909.11.
® The interior finish for walls and ceilings of the atrium and all unseparated
tenant spaces shall be Class I. Section 404.8.
Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only
contain furnishings and decorative materials with potential heat of combustion less than
9,000 Btu's per pound. All furnishings to comply with California Bureau of Home
Furnishings, Technical Bulletin 133, "Flammability Test for Seating Furniture in Public
Occupancies."
All furnishings in public areas shall comply with California Bureau of Home Furnishings,
Technical Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies."
Los Angeles County Fire
142. Fire Flow Requirements
I. INTRODUCTION
A. Pur o�se: To provide Department standards for fire flow, hydrant spacing
and specifications.
B. Scope: Informational to the general public and instructional to all
individuals, companies, or corporations involved in the subdivision of land,
construction of buildings, or alterations and /or installation of fire protection
water systems and hydrants.
C. Author: The Deputy Chief of the Prevention Services Bureau through
the Assistant Fire Chief (Fire Marshal) of the Fire Prevention Division
is responsible for the origin and maintenance of this regulation.
D. Definitions:
1. GPM — gallons per minute
2. psi — pounds per square inch
3. Detached condominiums — single detached dwelling units on
land owned in common
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4. Multiple family dwellings — three or more dwelling units
attached
II. RESPONSIBILITY
A. Land Development Unit
1. The Department's Land Development Unit shall review all
subdivisions of land and apply fire flow and hydrant spacing
requirements in accordance with this regulation and the present
zoning of the subdivision or allowed land use as approved by the
County's Regional Planning Commission or city planning
department.
B. Fire Prevention Engineering Section
1. The Department's Fire Prevention Engineering Section shall
review building plans and apply fire flow and hydrant spacing
requirements in accordance with this regulation.
III. POLICY
A. The procedures, standards, and policies contained herein are provided
to ensure the adequacy of, and access to, fire protection water and shall
be enforced by all Department personnel.
{remainder of page is blank}
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IV. PROCEDURES
A. Land development: fire flow, duration of flow, and hydrant spacing
The following requirements apply to land development issues such as: tract
and parcel maps, conditional use permits, zone changes, lot line adjustments,
planned unit developments, etc.
1. Residential
Fire Zones 3
Very High Fire Hazard Severity Zone (VHFHSZ)
Public
Hydrant
Duration Spacing
Fire Flow of Flow
a. Single family dwelling 1,250 GPM' 2 ITT& 600 ft.
and detached. condominiums
(1— 4 Units)
(Under 5,000 square feet)
b. Detached condominium 1,500 GPM 2 hrs. 300 ft.
(5 or more units)
C. Two family dwellings 1,500 GPM 2 hrs. 600 ft.
NOTE: FOR SINGLE FAMILY DWELLINGS OVER
5,000 SQUARE FEET. SEE, TABLE 1 FOR FIRE FLOW
REQUIREMENTS PER BUILDING SIZE.
2. Multiple family dwellings, hotels, high rise, commercial, industrial, etc.
a. Due to the undetermined building designs for new land
development projects (undeveloped land), the required fire flow
shall be: 5,000 GPM 5 his. 300 ft.
NOTE: REDUCTION IN FIRE FLOW IN ACCORDANCE
WITH TABLE 1.
b. Land development projects consisting of lots having existing
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structures shall be in compliance with Table 1 (fire flow per
building size). This standard applies to multiple family
dwellings, hotels, high rise, commercial, industrial, etc.
NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT 20
POUNDS PER SQUARE INCH RESIDUAL
PRESSURE.
B. Building plans
The Department's Fire Prevention Engineering Section shall review building plans
and apply fire flow requirements and hydrant spacing in accordance with the
following:
1. Residential
Building Occupancy Classification
a. Single family dwellings - Fire Zone 3 (Less than 5,000 square feet)
Fire Flow Duration
Public Hydrant
of Flow
Snacine
On a lot of one acre or more 750 GPM 21rrs.
600 ft.
On a lot less than one acre 1,250 GPM 2 hrs.
600 ft.
b. Single family dwellings — VHFHSZ (Less than 5,000 square feet)
On a lot of one acre or more 1,000 GPM 2 his. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs. 600 ft.
NOTE: FOR SINGLE FAMILY DWELLINGS GREATER THAN 5,000
SQUARE FEET IN AREA SEE TABLE
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Fire Flow Duration
of Flow
c. Two family dwellings — VHFHSZ (Less than 5,000 square feet)
Duplexes
2. Mobile Home Park
a. Recreation Buildings
1,500 GPM 2 Ins
Public Hydrant
Snacin¢
600 ft.
Refer to Table 1 for fire flow according to building
size.
b. Mobile Home Park 1,250 GPM 2 hrs. 600 ft.
3. Multiple residential, apartments, single family residences (greater than
5,000 square feet), private schools, hotels, high rise, commercial,
industrial, etc. (R -1, E, B, A, I, H, F, M, S) (see Table 1).
C. Public fire hydrant requirements
1. Fire hydrants shall be required at intersections and along access ways as
spacing requirements dictate
2. Spacing
a. Cul -de -sac
When cul -de -sac depth exceeds 450' (residential) or
200' (commercial), hydrants shall be required at mid -
block. Additional hydrants will be required if hydrant
spacing exceeds specified distances.
b. Single family dwellings
Fire hydrant spacing of 600 feet
NOTE: The following guidelines shall be used in
meeting single family dwellings hydrant
spacing requirements:
(1) Urban properties (more than one unit per acre):
No portion of lot frontage should be more than
450' via vehicular access from a public hydrant.
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(2) Non -Urban Properties (less than one unit per acre):
No portion of a structure should be placed on a
lot where it exceeds 750' via vehicular access
from a properly spaced public hydrant that meets
the required fire flow.
C. All occupancies
Other than single family dwellings, such as commercial,
industrial, multi - family dwellings, private schools,
institutions, detached condominiums (five or more
units), etc.
Fire hydrant spacing shall be 300 feet.
NOTE: The following guidelines shall be used in
meeting the hydrant spacing requirements.
(1) No portion of lot frontage shall be more than
200 feet via vehicular access from a public hydrant.
(2) No portion of a building should exceed 400 feet
via vehicular access from a properly spaced public
hydrant.
d. Supplemental fire protection
When a structure cannot meet the required public
hydrant spacing distances, supplemental fire protection
shall be required.
NOTE: Supplemental fire protection is not limited to
the installation of on -site fire hydrants; it may include
automatic extinguishing systems.
3. Hydrant location requirements - both sides of a street
Hydrants shall be required on both sides of the street whenever:
a. Streets having raised median center dividers that make access to
hydrants difficult, causes time delay, and /or creates undue hazard.
b. For situations other than those listed in "a" above, the Department's
inspector's judgment shall be used. The following items shall be
considered when determining hydrant locations:
(1) Excessive traffic loads, major arterial
route, in which traffic would be difficult to
detour.
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(2) Lack of adjacent parallel public streets in
which traffic could be redirected (e.g.,
Pacific Coast Highway).
(3) Past practices in the area.
(4) Possibility of future development in the
area.
(5) Type of development (i.e., flag -lot units,
large apartment or condo complex, etc.).
(6) Accessibility to existing hydrants
(7) Possibility of the existing street having a
raised median center divider in the near
future.
D. On -Site Hydrant Requirements
1. When any portion of a proposed structure exceeds (via vehicular access)
the allowable distances from a public hydrant and on -site hydrants are
required, the following spacing requirements shall be met:
a. Spacing distance between on -site hydrants shall be 300 to 600 feet.
(1) Design features shall assist in allowing
distance modifications.
b. Factors considered when allowing distance modifications.
(1) Only sprinklered buildings qualify for the
maximum spacing of 600 feet.
(2) For non - sprinklered buildings,
consideration should be given to fire
protection, access doors, outside storage,
etc. Distance between hydrants should
not exceed 400 feet.
2. Fire flow
a. All on -site fire hydrants shall flow a minimum of 1,250 gallons per
minute at 20 psi for a duration of two hours. If more than one on-
site fire hydrant is required, the on -site fire flow shall be at least
2,500 gallons per minute at 20 psi, flowing from two hydrants
simultaneously. On site flow may be greater depending upon the
size of the structure and the distance from public hydrants.
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NOTE: ONE OF THE TWO HYDRANTS TESTED SHALL BE
THE FARTHEST FROM THE PUBLIC WATER
SOURCE.
3. Distance from structures
All on -site hydrants shall be installed a minimum of 25 feet from a
structure or protected by a two -hour firewall.
4. Shut -off valves
All on -site hydrants shall be equipped with a shut -off (gate) valve,
which shall be located as follows:
a. Minimum distance to the hydrant 10 feet.
b. Maximum distance from the hydrant 25 feet
5. Inspection of new installations
All new on -site hydrants and underground installations are subject
to inspection of the following items by a representative of the
Department:
a. Piping materials and the bracing and support thereof.
b. A hydrostatic test of 200 psi for two hours.
C. I I I I I I i I III I i i I I I I i i I iIIlIIIIIiII,
I Flow test to satisfy required fire flow.
(1) Hydrants shall be painted with two coats of red primer and
one coat of red paint, with the exception of the stem and
threads, prior to flow test and acceptance of the system.
6. Maintenance
It shall be the responsibility of the property management company,
the homeowners association, or the property owner to maintain on-
site hydrants.
a. Hydrants shall be painted with two coats of red primer and one coat
of red, with the exception of the stem and threads, prior to flow test
and acceptance of the system.
b. No barricades, walls, fences, landscaping, etc., shall be installed or
planted within three feet of a fire hydrant.
E. Public Hydrant Flow Procedure
The minimum acceptable flow from any existing public hydrant shall be 1,000
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GPM unless the required fire flow is less. Hydrants used to satisfy fire
flow requirements will be determined by the following items:
1. Only hydrants that meet spacing requirements are acceptable
for meeting fire flow requirements.
2. In order to meet the required fire flow:
a. Flow closest hydrant and calculate to determine flow at 20
pounds per square inch residual pressure. If the calculated
flow does not meet the fire flow requirement, the next closest
hydrant shall be flowed simultaneously with the first
hydrant, providing it meets the spacing requirement, etc.
b. If more than one hydrant is to be flowed in order to meet
the required fire flow, the number of hydrants shall be
flowed as follows:
One hydrant
Two hydrants
Three hydrants
F. Hydrant Upgrade Policy
1,250 GPM and below
1,251— 3,500 GPM flowing simultaneously
3,501— 5,000 GPM flowing simultaneously
1. Existing single outlet 2 1/2" inch hydrants shall be upgraded to a
double outlet 6" x 4" x 2 1/2" hydrant when the required fire flow
exceeds 1,250
GPM.
2. An upgrade of the fire hydrant will not be required if the required fire
flow is between the minimum requirement of 750 gallons per minute,
up to and including 1,250 gallons per minute, and the existing public
water system will provide the required fire flow through an existing
wharf fire hydrant.
3. All new required fire hydrant installations shall be approved
6" x 4" x 2 1/2" fire hydrants.
4. When water main improvements are required to meet GPM flow,
and the existing water main has single outlet 2 1/2" fire
hydrant(s), then a hydrant(s) upgrade will be required. This
upgrade shall apply regardless of flow requirements.
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5. The owner - developer shall be responsible for making the
necessary arrangements with the local water purveyor for the
installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are not
provided (see Figures 1, 2, and 3 following on pages l 1 and 12).
G. Hydrant Specifications
All required public and on -site fire hydrants shall be installed to the
following specifications prior to flow test and acceptance of the system.
1. Hydrants shall be:
a. Installed so that the center line of the lowest outlet is
between 14 and 24 inches above finished grade
b. Installed so that the front of the riser is between 12 and 24
inches behind the curb face
C. Installed with outlets facing the curb at a 45- degree angle to
the curb line if there are double outlet hydrants
d. Similar to the type of construction which conforms to current
A.W.W.A. Standards
e. Provided with three -foot unobstructed clearance on all sides.
f. Provided with approved plastic caps
g. Painted with two coats of red primer and one coat of traffic
signal yellow for public hydrants and one coat of red for on-
site hydrants, with the exception of the stems and threads
2. Underground shut -off valves are to be located:
a. A minimum distance of 10 feet from the hydrant
b. A maximum distance of 25 feet from the hydrant
Exception: Location can be less than 10 feet when the water
main is already installed and the 10 -foot minimum distance
cannot be satisfied.
3. All new water mains, laterals, gate valves, buries, and riser shall
be a minimum of six inches inside diameter.
4. When sidewalks are contiguous with a curb and are five feet wide
or less, fire hydrants shall be placed immediately behind the
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sidewalk. Under no circumstances shall hydrants be more than six
feet from a curb line.
5. The owner- developer shall be responsible for making the
necessary arrangements with the local water purveyor for the
installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are
not provided (see Figures 1, 2, and 3 following on pages 11 and
12).
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Barricade /Clearance Details
CONCRETE CAP
5'BARRICADE POST
CONCRETE FILLED
T MIN. MIN. 4" DIA. SCHEDULE 40
_ STEEL. SEE NOTE 01
15"
Figure 1
Figure 2
CONCRETE
4' MIN.
, - ° 14
6 "x4 "x21/2" OUTLETS
HYDRANT
\
36"
O®® ®/
PLAN
FIRE HYDRANT BARRICADES
(TYPICAL)
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'1.�
6 "x4'
HYC
Figure 3
Notes:
O O
1. Constructed of steel not less than four inches in diameter, six inches if heavy
truck traffic is anticipated, schedule 40 steel and concrete filled.
2. Posts shall be set not less than three feet deep in a concrete footing of not less
than 15 inches in diameter, with the top of the posts not less than three feet
above ground and not less than three feet from the hydrant
3. Posts, fences, vehicles, growth, trash storage and other materials or things shall
not be placed or kept near fire hydrants in a manner that would prevent fire
hydrants from being immediately discernible.
4. If hydrant is to be barricaded, no barricade shall be constructed in front of the
hydrant outlets (Figure 2, shaded area).
5. The exact location of barricades may be changed by the field inspector during a
field inspection.
6. The steel pipe above ground shall be painted a minimum of two field coats of
primer.
7. Two finish coats of "traffic signal yellow" shall be used for fire hydrant
barricades.
8. Figure 3 shows hydrant hook up during fireground operations. Notice apparatus
(hydra- assist - valve) connected to hydrant and the required area. Figure 3 shows
the importance of not constructing barricades or other obstructions in front of
hydrant outlets.
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H. Private fire protection systems for rural commercial and industrial development
Where the standards of this regulation cannot be met for industrial and
commercial developments in rural areas, alternate proposals which meet NFPA
Standard 1142 may be submitted to the Fire Marshal for review. Such
proposals shall also be subject to the following:
1. The structure is beyond 3,000 feet of any existing, adequately -
sized water system.
a. Structures within 3,000 feet of an existing, adequately -sized
water system, but beyond a water purveyor service area, will
be reviewed on an individual basis.
2. The structure is in an area designated by the County of Los
Angeles' General Plan as rural non -urban.
L Blue reflective hydrant markers replacement policy
1. Purpose: To provide information regarding the replacement of
blue reflective hydrant markers, following street construction or
repair work.
a. Fire station personnel shall inform Department of Public
Works Road Construction Inspectors of the importance of
the blue reflective hydrant markers, and encourage them to
enforce their Department permit requirement, that streets and
roads be returned to their original condition, following
construction or repair work.
b. When street construction or repair work occurs within this
Department's jurisdiction, the nearest Department of Public
Works Permit Office shall be contacted. The location can be
found by searching for the jurisdiction office in the "County
of Los Angeles Telephone Directory" under "Department of
Public Works Road Maintenance Division." The importance
of the blue reflective hydrant markers should be explained,
and the requirement encouraged that the street be returned to
its original condition, by replacing the hydrant markers.
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TABLE 1 *
BUILDING SIZE
(First floor area)
Fire Flow *(1) (2)
Duration
Hydrant Spacing
1,000 GPM
2 hrs.
Under 3,000
sq.
ft.
300 ft.
sq.
ft.
sq.
ft.
3,000 to 4,999
sq.
ft'
1,250 GPM
2 hrs.
300 ft.
sq.
ft.
5,000 to 7,999
1,500 GPM
2 hrs.
300 ft.
15,000 to 19,999
sq.
ft.
3,000 GPM
3 hrs.
300 ft.
sq.
ft.
sq.
ft.
20,000 to 24,999
sq.
ft'
3,500 GPM
3 hrs.
300 ft.
sq.
ft.
25,000 to 29,999
4,000 GPM
4 his.
300 ft.
* See applicable footnotes below:
(FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH
RESIDUAL PRESSURE)
(1) Conditions requiring additional fire flow.
a. Each story above ground level - add 500 GPM per story.
b. Any exposure within 50 feet - add a total of 500 GPM.
c. Any high -rise building (as determined by the jurisdictional building code)
the fire flow shall be a minimum of 3,500 GPM for 3 hours at 20 psi.
d. Any flow may be increased up to 1,000 GPM for a hazardous occupancy.
(2) Reductions in fire flow shall be cumulative for type of construction and a fully
sprinklered building. The following allowances and/or additions may be made
to standard fire flow requirements:
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a. A 25% reduction shall be granted for the following types of construction:
Type I -F.R, Type II -F.R., Type II one -hour, Type II -N, Type III one -hour,
Type III -N, Type IV, Type IV one hour, and Type V one -hour. This
reduction shall be automatic and credited on all projects using these types
of construction. Credit will not be given for Type V -N structures (to a
minimum of 2,000 GPM available fire flow).
b. A 25% reduction shall be granted for fully sprinklered buildings (to a
minimum of 2,000 GPM available fire flow).
C. When determining required fire flows for structures that total 70,000
square feet or greater, such flows shall not be reduced below 3,500 GPM
at 20 psi for three hours.
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EXHIBIT "E"
SMMC ARTICLE 9 (PLANNING AND ZONING)
On file with the City Clerk
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EXHIBIT "F -1"
LOCAL HIRING PROGRAM FOR CONSTRUCTION
Local Hiring Policy For Construction. Developer shall implement a local hiring policy
(the "Local Hiring Policy ") for construction of the Project, consistent with the following
guidelines:
Purpose. The purpose of the Local Hiring Policy is to facilitate the employment
by Developer and its contractors at the Project of residents of the City of Santa
Monica (the "Targeted Job Applicants "), and in particular, those residents who
are "Low- Income Individuals" (defined below).
2. Definitions.
a. "Contract' means a contract or other agreement for the providing of any
combination of labor, materials, supplies, and equipment to the
construction of the Project that will result in On -Site Jobs, directly or
indirectly, either pursuant to the terms of such contract or other agreement
or through one or more subcontracts.
b. "Contractor" means a prime contractor, a sub - contractor, or any other
entity that enters into a Contract with Developer for any portion or
component of the work necessary to construct the Project (excluding
architectural, design and other "soft" components of the construction of
the Project).
C. "Low Income Individual' means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income.
d. "Median Income" means the median income for the Los Angeles -Long
Beach Primary Metropolitan Statistical Area, as published from time to
time by the City in connection with its Affordable Housing Production
Program pursuant to SMMC Section 9.56.
e. "On -Site Jobs" means all jobs by a Contractor under a Contract for which
at least fifty percent (50 %) of the work hours for such job requires the
employee to be at the Project site, regardless of whether such job is in the
nature of an employee or an independent contractor.
3. Priority for Targeted Job Applicants. Subj ect to Section 6 below in this
Exhibit "F -1;' the Local Hiring Policy provides that the Targeted Job Applicants
shall be considered for each On -Site Job in the following order of priority:
a. First Priority: Low Income Individuals living within one mile of the
Project;
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b. Second Priority: Low Income Individuals living in census tracts
throughout the City for which household income is no greater than 80% of
the Median Income;
C. Third Priority: Low Income Individuals living in the City, other than the
first priority and second priority Low Income Individuals; and
d. Fourth Priority: City residents other than the first priority, second priority,
and third priority City residents.
4. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs
related to the construction of the Project, by Developer and its Contractors.
Outreach. So that Targeted Job Applicants are made aware of the availability of
On -Site Jobs, Developer or its Contractors shall advertise available On -Site Jobs
in the Santa Monica Daily Press or similar local newspaper, or similar local
media and electronically on a City- sponsored website, if such a resource exists.
In addition, Developer shall consult with and provide written notice to at least two
first source hiring organizations, which may include but are not limited to the
following:
(i) Local first source hiring programs.
(ii) Trade unions.
(iii) Apprenticeship programs at local colleges.
(iv) Santa Monica educational institutions
(v) Other non -profit organizations involved in referring eligible applicants for
job opportunities
6. Hiring. Developer and its prime contractor shall consider in good faith all
applications submitted by Targeted Job Applicants for On -Site Jobs, in
accordance with their respective normal hiring practices. The City acknowledges
that the Contractors shall determine in their respective subjective business
judgment whether any particular Targeted Job Applicant is qualified to perform
the On -Site Job for which such Targeted Job Applicant has applied.
7. Term. The Local Hiring Policy shall continue to apply to the construction of the
Project until the final certificate of occupancy for the Project has been issued by
the City.
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EXHIBIT "F -2"
LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT
Local Hiring Policy For Permanent Employment. The Developer (if an Operator) or
Commercial Operator shall implement a local hiring policy (the "Local Hiring Policy "),
consistent with the following guidelines:
1. Purpose,. The purpose of the Local Hiring Policy is to facilitate the employment
by the commercial tenants of the Project of residents of the City of Santa Monica
(the "Targeted Job Applicants "), and in particular, those residents who are
"Low- Income Individuals" (defined below) by ensuring Targeted Job Applicants
are aware of Project employment opportunities and have a fair opportunity to
apply and compete for such jobs. The goal of this policy is local hiring.
2. Findings.
a. Approximately 73,000- 74,000 individuals work in the City. The City has
a resident labor force of approximately 56,800. However, only about one-
third (32.2 percent) of the City's resident labor force works at jobs located
in the City, with the balance working outside of the City. Consequently, a
significant portion of the City's resident and non - resident work force is
required to commute long distances to find work, causing increased traffic
on state highways, increased pollution, increased use of gas and other
fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City
are forced to leave for work very early in the morning and return late in
the evening, often leaving children and teenagers alone and unsupervised
during the hours between school and the parent return from work outside
the area.
C. Absentee parents and unsupervised youth can result in increased problems
for families, communities and the City as a whole, including, but not
limited to, increased crime, more frequent and serious injuries, poor
homework accomplishments, failing grades and increased high school
dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are
defined as low- income households or lower, with eleven percent of these
households defined as extremely low income and eight percent very low
income. Approximately 10.5% of the City's residents are unemployed.
C. By ensuring that Targeted Job Applicants are aware of and have a fair
opportunity to compete for Project jobs, this local hiring policy will
facilitate job opportunities to City residents which would expand the City's
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employment base and reduce the impacts on the environment caused by
long commuting times to jobs outside the area.
3. Definitions.
a. "Low Income Individual" means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income.
b. "Median Income" means the median income for the Los Angeles -Long
Beach Primary Metropolitan Statistical Area, as published from time to
time by the City in connection with its Affordable Housing Production
Program pursuant to SMMC Section 9.56.
C. "On -Site Jobs" means all jobs on the Project site within the non-
residential uses of greater than 1,500 gross square feet, regardless of
whether such job is in the nature of an employee or an independent
contractor.
d. "Commercial Operator" means the operators of non - residential uses on
the Project site.
4. Priority for Targeted Job Applicants. Subject to Section 6 below in this
Exhibit "F -2," the Local Hiring Policy provides that the Targeted Job Applicants
shall be considered for each On -Site Job in the following order of priority:
a. First Priority: Low Income Individuals living within one mile of the
Project,
b. Second Priority: Low Income Individuals living in the City, other than the
first priority Low Income Individuals; and
C. Third Priority: City residents other than the first priority and second
Priority City residents.
For purposes of this Local Hiring Policy, the employer is authorized to rely on the
most recent year's income tax records (W -2) and proof of residency (e.g. driver's
license, utility bill, voter registration) if voluntarily submitted by a prospective job
applicant for purposes of assessing a Targeted Job Applicant's place of residence
and income.
5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs.
Notwithstanding the foregoing, the Local Hiring Policy shall not apply to
temporary employees utilized while a permanent employee is temporarily absent
or while a replacement is being actively sought for a recently - departed permanent
employee. Furthermore, the Local Hiring Policy shall not preclude the re- hiring
of a prior employee or the transfer of an existing employee from another location.
6. Recruitment.
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a. Advanced Local Recruitment - Initial Hiring for New Business. So that
Targeted Job Applicants are made aware of the availability of On -Site
Jobs, at least 30 days before recruitment ( "Advanced Recruitment
Period ") is opened up to general circulation for the initial hiring by a new
business, Operator shall advertise available On -Site Jobs in the Santa
Monica Daily Press, or Santa Monica Police Activity League or similar
organization, or similar local media and electronically on a City- sponsored
website, if such a resource exists. In addition, Developer shall consult
with and provide written notice to at least two first source hiring
organizations, which may include but are not limited to the following:
(i) Local first source hiring programs
(ii) Trade unions
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non - profit organizations involved in referring eligible
applicants for job opportunities
b. Advanced Local Recruitment - Subsequent Hiring. For subsequent
employment opportunities, the Advanced Recruitment Period for Targeted
Job Applicants can be reduced to at least 7 days before recruitment is
opened up to general circulation. Alternatively, the Developer may also
use an established list of potential Targeted Job Applicants of not more
than one year old.
C. Obligations After Completion of Advanced Recruitment Period. Once
these advanced local recruitment obligations have been met, Developer is
not precluded from advertising regionally or nationally for employees.
Hiring. Developer or Commercial Operator shall consider in good faith all
applications submitted by Targeted Job Applicants for On -Site Jobs in accordance
with their normal practice to hire the most qualified candidate for each position
and shall be make good faith efforts to hire Targeted Job Applicants when such
Applicants are most qualified or equally qualified as other applicants. The City
acknowledges that the Developer or Commercial Operator shall determine in their
respective subjective business judgment whether any particular Targeted Job
Applicant is qualified to perform the On -Site Job for which such Targeted Job
Applicant has applied.
8. Proactive Outreach. Developer shall designate a "First- Source Hiring
Coordinator" (FHC) that shall manage all aspects of the Local Hiring Policy.
The FHC shall be responsible for actively seeking partnerships with local first -
source hiring organizations prior to employment opportunities being available.
The FHC shall also be responsible for encouraging and making available
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information on first- source hiring to respective commercial tenants of the Project.
The FHC shall contact new employers on the Project site to inform them of the
available resources on first- source hiring. In addition to implementation of the
Local Hiring Policy, the FHC can have other work duties unrelated to the Local
Hiring Policy.
9. Term. The Local Hiring Policy shall apply for the life of the Project.
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EXHIBIT "G"
[RESERVED]
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EXHIBIT "H"
CONSTRUCTION MITIGATION PLAN
Construction Mitigation Plan.
The applicant shall prepare, implement and maintain a Construction 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 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 project's construction activities that may disrupt
normal pedestrian and traffic flow and the measures to address these
disruptions. Such plans must be reviewed and approved by the Transportation
Management Division prior to commencement of construction and
implemented in accordance with this approval.
• Work within the public right -of -way shall be performed between 9:00 AM
and 4:00 PM, including: dirt and demolition material hauling and construction
material delivery. Work within the public right -of -way outside of these hours
shall only be allowed after the issuance of an after -hours construction permit.
Streets and equipment shall be cleaned in accordance with established PW
requirements.
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• 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.
Proiect 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.
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a) Diesel Equipment Mufflers.
All diesel equipment shall be operated with closed engine doors and shall be equipped
with factory- recommended mufflers.
(b) Electrically- Powered Tools.
Electrical power shall be used to run air compressors and similar power tools.
(c) Restrictions on Excavation and Foundation/Conditioning.
Pile driving, excavation, foundation - laying, and conditioning activities (the noisiest
phases of construction) shall be restricted to between the hours of 10:00 AM and 3:00
PM, Monday through Friday, in accordance with Section 4.12.110(d) of the Santa
Monica Municipal Code.
(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.
(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.
(I) 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.
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W Fugitive 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).
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EXHIBIT "I"
ASSIGNMENT AND ASSUMPTION AGREEMENT
Recording Requested By and
When Recorded Mail To:
Armbruster Goldsmith & Delvac LLP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Attn:
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is
made and entered into by and between a California
limited liability company ( "Assignor "), and a
( "Assignee ").
RECITALS
A. The City of Santa Monica ( "City ") and Assignor entered into that certain
Development Agreement dated , 2013 (the "Development
Agreement "), with respect to the real property located in the City of Santa Monica, State
of California more particularly described in Exhibit "A" attached hereto (the "Project
Site ").
B. Assignor has obtained from the City certain development approvals and
permits with respect to the development of the Project Site, including without limitation,
approval of the Development Agreement and a vesting parcel map for the Project Site
(collectively, the "Project Approvals ").
C. Assignor intends to sell, and Assignee intends to purchase, the Project
Site.
D. In connection with such purchase and sale, Assignor desires to transfer all
of the Assignor's right, title, and interest in and to the Development Agreement and the
Project Approvals with respect to the Project Site. Assignee desires to accept such
assignment from Assignor and assume the obligations of Assignor under the
Development Agreement and the Project Approvals with respect to the Project Site.
THEREFORE, the parties agree as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
Assignor's right, title, and interest in and to the Development Agreement and the Project
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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"
a California limited liability company
"ASSIGNEE"
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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
Un
Planning Director
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Approved and adopted this 25th day of June, 2013.
am O'Connor, 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. 2425 (CCS) had its introduction on May 14, 2013,
and was adopted at the Santa Monica City Council meeting held on June 25,
2013, by the following vote:
Ayes: Councilmembers: Davis, Holbrook, Vazquez, Winterer
Mayor Pro Tern O'Day, Mayor O'Connor
Noes: Councilmembers: None
Absent: Councilmembers: McKeown
A summary of Ordinance No. 2425 (CCS) was duly published pursuant to
California Government Code Section 40806.
ATTEST:
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Sarah P. Gorman, City Clerk