O2430City Council Meeting: July 9, 2013
Santa Monica, California
ORDINANCE NUMBER 2.`13' (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 THE CROSSROADS SCHOOL FOR ARTS AND SCIENCES,
A CALIFORNIA NONPROFIT CORPORATION
WHEREAS, The Crossroads School for Arts & Sciences ( "School') proposes to
construct a new three -story, 41 -foot high, twelve - classroom science learning center at
1731 20th Street, located in the Industrial Conservation land use element designation,
that will contain approximately 23,856 square feet of classroom and support space; and
WHEREAS, the approval of the proposed three -story, 12- classroom, building is
exempt from the provisions of the California Environmental Quality Act pursuant to
CEQA Section 15314, which exempts minor additions to existing schools within existing
school grounds where the addition does not increase school capacity by more than 25%
or ten classrooms, whichever is less; and
WHEREAS, the development agreement is consistent with the objectives,
policies, general land uses and programs specified in the General Plan, as described
below, and as detailed in the accompanying City Council staff report prepared for this
proposed project and the exhibits thereto, including but not limited to:
1
(a) LUCE Policy D27.4, the proposed project continues and expands an existing
school.
(b) LUCE Policy D27.10, the project utilizes a variety of heights, forms, and
materials to create visual interest and avoids uniformly flat roofs or cornices in order to
create an interesting skyline.
(c) LUCE Circulation Policy T19.2, which calls for the imposition of appropriate
TDM requirements for new development, the project requires implementation of a
Transportation Demand Management (TDM) plan in order to reduce vehicle trips in the
area and reduce associated parking demand.
WHEREAS, the project is consistent with LUCE land use policies because it
incorporates community benefits including, but not limited to, a bike path easement
reserved for the future development of the Michigan Avenue Greenway bike path in
furtherance of the City's Bike Action Plan; photovoltaic panels and a photovoltaic panel-
ready roof; and, a Pico Neighborhood Outreach Summer Program.
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 by and between the City of Santa Monica, a municipal
corporation, and The Crossroads School for Arts & Sciences, a California nonprofit
corporation, is hereby approved.
2
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
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
3
official newspaper within 15 days after its adoption. This Ordinance shall be effective
30 days from its adoption.
APPROVED AS TO FORM:
Ell
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
THE CROSSROADS SCHOOL FOR ARTS AND SCIENCES
,2013
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TABLE OF CONTENTS
Recitals............................................................................................................
...............................
l
Article1
Definitions ................................................................................ ..............................3
Article 2
Description of the Project ....................................................... ...............................
5
2.1
General Description ................................................................. ...............................
5
2.2
Principal Components of the Project ...................................... ...............................
5
2.3
No Obligation to Develop ....................................................... ...............................
5
2.4
Vested Rights ........................................................................... ..............................6
2.5
Permitted Uses ........................................................................ ...............................
8
2.6
Significant Project Features and LUCE Community Benefits ..............................
8
2.7
Parking .................................................................................... .............................15
2.8
Design ..................................................................................... .............................15
Article3
Construction ............................................................................ .............................16
3.1
Construction Mitigation Plan .................................................. .............................16
3.2
Construction Hours ...........................................:..................... .............................16
3.3
Outside Building Permit Issuance Date .................................. .............................17
3.4
Construction Period ................................................................ .............................17
3.5
Damage or Destruction ........................................................... .............................17
3.6
Possession of Property ............................................................ .............................17
3.7
Completed and Final Landmarks Commission Review of Property ...................
18
Article 4
Project Fees, Exactions, and Conditions ................................. .............................18
4.1
Fees, Exactions, and Conditions ............................................. .............................18
4.2
Conditions on Modifications ................................................... .............................18
4.3
Implementation of Conditions of Approval ............................ .............................18
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Article 5
Effect of Agreement on City Laws and Regulations .............. .............................18
5.1
Development Standards for the Property; Existing Regulations .........................
18
5.2
Permitted Subsequent Code Changes ..................................... .............................19
5.3
Common Set of Existing Regulations ................................... ...............................
21
5.4
Conflicting Enactments ........................................................... .............................21
5.5
Timing of Development ........................................................ ...............................
21
Article 6
Architectural Review Board ................................................... .............................22
6.1
Architectural Review Board Approval ................................. ...............................
22
6.2
Concurrent Processing .......................................................... ...............................
22
Article 7
City Technical Permits ............................................................ .............................22
7.1
Definitions ............................................................................... .............................22
7.2
Diligent Action by City ......................................................... ...............................
22
7.3
Conditions for Diligent Action by the City ........................... ...............................
23
7.4
Duration of Technical City Permits ...................................... ...............................
24
7.5
[Reserved] ............................................................................. ...............................
24
Article 8
Amendment and Modification .............................................. ...............................
24
8.1
Amendment and Modification of Development Agreement ...............................
24
Article9
Term ........................................................................................ .............................25
9.1
Effective Date ....................................................................... ...............................
25
9.2
Term ........................................................................................ .............................25
Article 10
Periodic Review of Compliance ........................................... ...............................
25
10.1
City Review .......................................................................... ...............................
25
10.2
Evidence of Good Faith Compliance .................................... ...............................
25
10.3
Information to be Provided to School ................................... ...............................
26
10.4
Notice of Breach; Cure Rights .............................................. ...............................
26
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10.5
Failure of Periodic Review ................................................... ...............................
26
10.6
Termination of Development Agreement ............................. ...............................
26
10.7
City Cost Recovery ................................................................. .............................26
ArticleI1
Default ..................................................................................... .............................26
11.1
Notice and Cure .................................................................... ...............................
26
11.2
Remedies for Monetary Default ............................................ ...............................
27
11.3
Remedies for Non - Monetary Default ................................... ...............................
27
11.4
Modification or Termination of Agreement by City ............. ...............................
29
11.5
Cessation of Rights and Obligations ....................................... .............................30
11.6
Completion of Improvements ............................................... ...............................
30
Article12
Mortgagees .............................................................................. .............................31
12.1
Encumbrances on the Property ............................................. ...............................
31
Article 13
Transfers and Assignments ..................................................... .............................33
13.1
Transfers and Assignments ..................................................... .............................33
13.2
Release Upon Transfer .......................................................... ...............................
33
Article 14
Indemnity to City .................................................................... .............................33
14.1
Indemnity .............................................................................. ...............................
33
14.2
City's Right to Defense ......................................................... ...............................
34
Article 15
General Provisions .................................................................. .............................34
15.1
Notices .................................................................................. ...............................
34
15.2
Entire Agreement; Conflicts ................................................. ...............................
35
15.3
Binding Effect ....................................................................... ...............................
35
15.4
Agreement Not for Benefit of Third Parties ......................... ...............................
35
15.5
No Partnership or Joint Venture ........................................... ...............................
36
15.6
Estoppel Certificates ............................................................... .............................36
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15.7 Time ........................................................................................ .............................36
15.8 Excusable Delays .................................................................... .............................36
15.9 Governing Law ..................................................................... ...............................
37
15.10 Cooperation in Event of Legal Challenge to Agreement ...... ...............................
37
15.11 Attorneys' Fees ....................................................................... .............................38
15.12 Recordation ............................................................................. .............................38
15.13 No Waiver ............................................................................... .............................38
15.14 Construction of this Agreement ............................................ ...............................
38
15.15 Other Governmental Approvals .............................................. .............................38
15.16 Venue ..................................................................................... .............................39
15.17 Exhibits ................................................................................. ...............................
40
15.18 Counterpart Signatures .......................................................... ...............................
40
15.19 Certificate of Performance ...................................................... .............................40
15.20 Interests of School ................................................................... .............................40
15.21 Operating Memoranda ............................................................ .............................40
15.22 Acknowledgments, Agreements and Assurance on the Part of School ...............41
15.23 Not a Public Dedication ........................................................ ...............................
41
15.24 Other Agreements ................................................................. ...............................
42
15.24 Severability and Termination .................................................. .............................42
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" Bike Path Easement Area
Exhibit "G" [Reserved]
Exhibit "H" Construction Mitigation Plan
Exhibit "I" Assignment and Assumption Agreement
Exhibit "J" Interim Modules Plan
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DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement "), dated 2013
( "Effective Date "), is entered into by and between THE CROSSROADS SCHOOL FOR
ARTS AND SCIENCES, a California nonprofit corporation ( "School "), 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. School has operated as a nonprofit private school since 1971. School's
campus for its upper and middle schools primarily consists of parcels located adjacent to
21st Court between I -10 Freeway and Olympic Boulevard.
C. School is the owner of approximately 12,641 square feet of land in the
City of Santa Monica, State of California, commonly known as 1731 -1733 Twentieth
Street, as more particularly described in Exhibit "A -1" (the "School Property "), and City
is the owner of approximately 772 square feet of land in the City of Santa Monica, State
of California, as more particularly described in Exhibit "A -2" (the "Remnant Parcel ")
(collectively, the "Property "). The conditions of approval to this Agreement provide
that no building, grading, or excavation permit may be approved for the Project until
School has obtained fee ownership of all of the Property, including the Remnant Parcel.
D. The City has included the Property within the Industrial Conservation land
use designation under the City's recently adopted Land Use and Circulation Element of
its General Plan (the "LUCE "). To aid in the redevelopment of the Property, the City
and School desire to enter into this Agreement to allow School to construct a new science
facility for the middle and upper schools.
E. On October 18, 2012, School 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 12 -013. The Development Application is for the
development of a science learning center to house specialty classrooms as part of its
existing school campus and is more fully described in this Agreement (the "Project ").
F. 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
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Page I
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.
G. School has paid all necessary costs and fees associated with the City's
processing of the Development Application and this Agreement.
H. The primary purpose of the Project is to combine and improve Crossroads'
science classrooms from its various upper and middle school buildings into a single
science facility. 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.
I. The City Council has determined that a development agreement is
appropriate for the proposed development of the Property. This Agreement will
(1) eliminate uncertainty in planning for the Project and result in the orderly
development of the Project, (2) assure installation of necessary improvements on the
Property, (3) provide for public infrastructure and services appropriate to development of
the Project, (4) preserve substantial City discretion in reviewing subsequent development
of the Property, (5) secure for the City improvements that benefit the public,
(6) otherwise achieve the goals and purposes for which the Development Agreement
Statutes were enacted, and (7) to allow School to proceed with its Tier 2 project prior to
the City's new zoning ordinance being adopted.
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 significant project features and community benefits, including
without limitation the following: a grant of an easement for future development and
public use of a portion of the Michigan Avenue Greenway bike path, enhanced
educational opportunities for students through development of a science center, a TDM
Plan, LEED Certification of at least Silver level (or, alternatively, achieving the
equivalency of a Gold level of points regardless of certification), outreach to the Pico
Neighborhood and prioritization for the Pico Neighborhood for School's summer
program, and photovoltaic panels.
K. The City Council has found that the provisions of this Development
Agreement are consistent with the relevant provisions of City's General Plan, including
the LUCE.
L. On October 30, 2012, School filed demolition permit applications for the
existing buildings located on the Property (12PC1339 and 12PC1340). On November 12,
2012, the City's Landmarks Commission reviewed the existing buildings located on the
Property and took no action to nominate or further evaluate any of the existing buildings.
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Page 2
M. On February 4, 2013, the City's Architectural Review Board conducted a
conceptual review of the Project and rendered comments that are reflected in the Project
Plans.
N. On May 1, 2013, the City's Planning Commission held a duly noticed
public hearing on the Development Application and this Agreement. The Commission
recommended that the City Council approve the Development Agreement.
O. On June 25, 2013, the City Council held a duly noticed public hearing on
the Development Application and this Agreement and at such hearing the City made the
necessary California Environmental Quality Act ( "CEOA ") findings that the Project
qualifies for an exemption from CEQA pursuant to California Code of Regulations, Title
14, Chapter 3, Section 15314 and introduced Ordinance No. for first reading,
approving this Agreement.
P. On , 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 School as of the Effective Date.
1.2 "ARB" means the City's Architectural Review Board.
1.3 "Building" means a tb ee -story structure with an accessible roof as shown
on the Project Plans (defined below).
1.4 "City Council' means the City Council of the City of Santa Monica, or its
designee.
1.5 "Discretionary Approvals" are actions which require the exercise of
judgment or a discretionary decision, and which contemplate and authorize the
imposition of revisions or additional conditions, by the City, including any board,
commission, or department of the City and any officer or employee of the City.
Discretionary Approvals do not include Ministerial Approvals.
1.6 "Effective Date" has the meaning set forth in Section 9.1 below.
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1.7 "Floor Area" has the meaning as defined in Section 9.04.02.030.315 of
the Zoning Ordinance, except that pursuant to Land Use and Circulation Element Policy
D27.4 rooftop areas for school activities shall not count in calculation Floor Area Ratio
(defined below).
1.8 "Floor Area Ratio" and FAR" means floor area ratio as defined in
Section 9.04.02.030.320 of the Zoning Ordinance.
1.9 "General Plan" or "City General Plan" means the General Plan of the
City of Santa Monica, and all elements thereof including the LUCE, as of the Effective
Date unless otherwise indicated in this Agreement.
1.10 "Including" means "including, but not limited to."
1.11 "Interim Modules Plan" means the plan for the Interim Modules that is
attached to this Agreement as Exhibit "J ".
1.12 "LEED a Rating System" means the Leadership in Energy and
Environmental Design (LEED®) Green Building Rating System for New Construction &
Major Renovations adopted by the U.S. Green Building Council.
1.13 "Legal Action" means any action in law or equity.
1.14 "Maximum Floor Area" means 30,179 square feet of Floor Area.
1.15 "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.
1.16 "Parties" mean both the City and School and "Party" means either the
City or School, as applicable.
1.17 "Pico Neighborhood" means the area in the City of Santa Monica
bounded by Santa Monica Boulevard from Lincoln Boulevard to 20th Street and
Colorado Boulevard from 20th Street to Centinela Avenue on the north, Pico Boulevard
on the south, Centinela Avenue and the City limits on the east and Lincoln Boulevard on
the west.
1.18 "Pico Neighborhood Association" means that certain California
nonprofit corporation named Pico Neighborhood Association.
1.19 "Planning Director" means the Planning Director of the City of Santa
Monica, or his or her designee.
1.20 "Project Plans" mean the plans for the Project that are attached to this
Agreement as Exhibit `B."
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1.21 "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
within Exhibit `B" (Planning and Zoning).
ARTICLE 2
DESCRIPTION OF THE PROJECT
2.1 General Description. The Project includes all aspects of the proposed
development of the Property as more particularly described in this Agreement and on the
Project Plans. If there is a conflict or inconsistency between the text of this Agreement
and the Project Plans, the Project Plans will prevail; 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) Demolition and removal of the two existing school buildings, including
five classrooms, and surface parking, (b) installation of interim replacement classroom
modules ( "Interim Modules ") consistent with the Interim Modules Plan and the
Conditions of Approval specified in Exhibit "D ", and (c) construction of a new three -
story structure with an accessible roof, which will contain 12 specialty classrooms and
related facilities as shown on the Project Plans.
2.3 No Obligation to Develop.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require
School 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 School's
sole discretion.
(c) Failure by School to proceed with construction of the
Projector any portion thereof shall not give rise to any liability, claim for damages or
cause of action against School, except as may arise pursuant to a nuisance abatement
proceeding under SMMC Chapter 8.96, or any successor legislation.
2.3.2 Failure by School to proceed with construction of the Project or
any portion thereof shall not result in any loss or diminution of development rights,
except upon expiration of School's vested rights pursuant to this Agreement, or the
termination of this Agreement.
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2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary,
School shall implement all conditions of approval required under this Agreement in
accordance with Exhibit "D" as and when reasonably required by the City of Santa Monica
for the appropriate stage of the Project.
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 School shall maintain a
complete copy of the Project Plans, stamped "Approved" by the City, in its offices or at
the Project site. The Project Plans to be maintained by the City and School 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 School subsequent to the Effective Date based upon the Project Plans.
2.4.2 Minor Modifications to Project. School 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. School
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) Reduction of any setback of the Interim Modules, as
depicted on the Interim Modules Plan, 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;
(c) Any change in use not consistent with the permitted uses
defined in Section 2.5 below;
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(d) Any material change in the number or location of curb cuts
shown on the Project Plans;
(e) 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
(f) Any change that would substantially reduce or alter the
community benefits or significant project features as set forth in Section 2.6.
If a proposed modification does not exceed the Major Modification
thresholds established above, then the proposed modification may be reviewed in
accordance with Section 2.4.2.
2.4.4 City Consent to Modification. The Planning Director shall not
unreasonably withhold, condition, or delay its approval of a request for such Minor
Modification. The City may impose fees, exactions, and conditions in connection with
its approval of a Minor or Major Modification, subject to any applicable law.
Notwithstanding anything to the contrary herein or in the Existing Regulations, if the
Planning Director approves a Minor Modification or if the City approves a Major
Modification (and the corresponding amendment to this Agreement for such Major
Modification), as the case may be, School 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 Section 9.2 below) of this Development Agreement,
School 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 2.5.3; and (iv) the requirements and obligations
of School 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, including on the rooftop: private elementary and secondary school and related
uses, including for classrooms, educational laboratories, educational workshops, storage,
faculty offices and preparation space.
2.6 Siynificant Project Features and LUCE Community Benefits. This
Agreement provides assurances that the significant project features and LUCE
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Page 7
community benefits identified below in this Section 2.6 will be achieved and developed
in accordance with the terms of this Agreement.
2.6.1 Significant Project Features. Set forth in this Section 2.6.1 are the
project features that will be provided to the City, including without limitation: (a)
construction j obs; (b) provision of on -site public art, cultural facilities or payment of a
cultural arts development contribution pursuant to SMMC Section 9.04.10.20; (c)
installation of standard water and wastewater reduction fixtures within the Project as
legally applicable; and (d) various standard public improvements and fees.
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) Educational Facility. The Project is an educational facility
that will provide enhanced educational opportunities for students which is identified as
one of the community benefit priorities of the LUCE (LUCE p. 3.2 -3).
(b) Bicycle Path. As its principal community benefit for the
Project, School agrees to execute an easement agreement (`Bike Path Easement
Agreement ") granting to the City a ten (10) foot wide surface easement across the
southerly portion of the Property as depicted on Exhibit "F" ( "Bike Path Easement
Area ") for purposes of establishing a public bike path ( "Public Bike Path ") in
furtherance of the City's Bike Action Plan, contingent on the following:
The Bike Path Easement Agreement would expressly be subject to any
preexisting easements over and across this same 10 foot wide strip of land
(collectively the "Utility Easements ").
ii. City shall have sole responsibility for designing, constructing and maintaining
the Public Bike Path on all or any part of the Bike Path Easement Agreement
area, including the relocation of any utility poles or placement underground of
any utility lines.
iii. The City's designated staff shall meet with School representatives or
administrators to share information regarding the City's preliminary design of,
timing for and future construction of the Public Bike Path. Such meeting shall
be in addition to any publicly noticed meeting about the design of the Public
Bike Path. Notwithstanding this Section 2.6.2(b)(iii), City shall retain its full
discretionary authority in designing, constructing and maintaining the Public
Bike Path and the Bike Path Easement Agreement area.
iv. City acknowledges that School desires to construct a new perimeter fence or
wall that extends from the eastern edge of the Science Building on School's
Property across 20th Court alley. School acknowledges that to obtain the
required approvals to construct a fence or wall on a public street, the City
must first go through a street vacation process. Pursuant to this subsection iv,
School may, and if it chooses to do so, shall be responsible for constructing
and maintaining a perimeter fence or wall from the eastern edge of the
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Science Building on the School Property to the eastern edge of the School
Property, outside the Bike Path Easement Area, at its own cost. City agrees
that such perimeter fence or wall shall be allowed to be 8 feet in height. The
Planning Director or his or her designee shall approve the precise location of
this fence or wall, the approval of which shall not be unreasonably withheld.
Except with respect to the height of the fence or wall, City's Architectural
Review Board shall retain its customary review authority, if any, over the
design of the fence or wall. The authority to construct a new perimeter fence
provided by this subsection is limited to the southern perimeter of the School
Property as set forth above, and does not authorize any construction by School
across 201h Court alley.
V. Notwithstanding anything to the contrary in this Development Agreement, the
Bike Path Easement Agreement shall provide that, commencing upon passage
of the 60°i day after the School's receipt of the City's Notice of Intent to
Proceed, the City shall defend, indemnify and hold harmless the School, its
board and individual board members, officers, agents, employees, volunteers
and other representatives (collectively "School Indemnified Parties ") from
and against any and all losses, liabilities, damages, costs, expenses, 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 from the
following: (1) the willful misconduct or active negligence of the City or its
City Council, boards and commissions, officers, agents, employees,
contractors, subcontractors, volunteers or other persons acting on its behalf
(collectively referred to as the "City Parties ") which occurs after the 60`h day
after the School's receipt of the City's Notice of Intent to Proceed and during
the term of the Bike Path Easement Agreement relating directly to the Public
Bike Path or the City's Bike Path Easement; and (2) the condition of the
Public Bike Path or the Bike Path Easement; except to the extent any such
Damages are caused by the active negligence or willful misconduct of any
School Indemnified Parties and/or any students of the School. For purposes
of enforcing any rights under this subsection (v), the term "condition" shall
include the design, use, and operation of the Public Bike Path.
vi. The Bike Path Easement Agreement shall provide that the City shall thereafter
assume full responsibility for evaluating and addressing any impacts of the
City's improvements to the Public Bike Path upon the existing drainage
culvert located on the alley and Interstate 10 Freeway side of the Bike Path
Easement Area.
vii. The School shall have the right to use the Public Bike Path for emergency
pedestrian access, if reasonably necessary to ensure public safety of the
School's students, teachers, administration and staff.
viii. If the City has failed to complete its construction of that portion of the Public
Bike Path located within the Bike Path Easement Area by December 31, 2033,
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then the Bike Path Easement Agreement shall automatically expire and be of
no further force or effect, and the City shall promptly execute all documents
reasonably necessary to confirm that School, or its successor in interest, is no
longer bound by the Bike Path Easement Agreement.
ix. In order to protect the southerly side of School's Science Building and
perimeter fence or wall from graffiti and vandalism, School shall be allowed
to plant pocket vines up to six inches into the Bike Path Easement Agreement
area from School's Science Building and the barrier fence or wall. The City's
Architectural Review Board shall retain its normal review authority over such
landscaping.
Until the City provides written notice to the School that the City is ready to proceed with
the commencement of construction of the proposed bike path ( "Notice of Intent to
Proceed "), the School shall retain and have the exclusive control and sole responsibility
for maintenance of the Bike Path Easement Area, excluding 20`x' Court Alley, (subject to
the existing Utility Easements) as part of its campus. In the event that the School installs
any fixtures and improvements within the Bike Path Easement Area after obtaining any
required approvals, including the establishment of a perimeter fence at or near the
southernmost edge of the Bike Path Easement Area, the School shall have the duty, at the
School's cost and expense, to remove such fixtures and improvements and restore the
surface of the Bike Path Easement Area to its condition immediately before the
installation of such fixtures and improvements no later than 60 days after the School's
receipt of the City's Notice of Intent to Proceed.
(c) Photovoltaic Panels. Photovoltaic panels shall be installed
in accordance with the Project Plans.
(d) Photovoltaic Panel-Ready Roo The western portion of
the roof, as shown on the Project Plans, shall be designed and constructed to
accommodate the School's potential future installation of photovoltaic panels at that
location, if and to the extent that the School may at some point in the future elect to
proceed to install such photovoltaic panels. This obligation includes anticipating the
capacity for such installation and installing the conduit that would service any future
photovoltaic panels at that location.
(e) Pico Neighborhood Outreach and Prioritization for Summer
Program. Commencing in the Spring of 2014 and continuing on an annual basis
thereafter, School shall perform the following targeted community outreach for school
aged children and their parents residing within the Pico Neighborhood:
(1) School shall include residents of the Pico
Neighborhood in an annual admissions night which shall be held prior to fall applications
(for regular school year admissions) being accepted. School shall provide outreach and
notification of the event to the then current chair of the Pico Neighborhood Association
and the Pico Boulevard Branch Public Library at Virginia Avenue Park. At this event,
School's admissions staff shall explain School's application process, supply information
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regarding the process for applying for financial aid for the School's tuition, and be
available to answer questions.
(2) Annually prior to commencement of enrollment for the
School's annual Summer at Crossroads program, School shall (i) continue to host an
event about School's Summer at Crossroads program and (ii) shall provide outreach and
notification of the event, the summer programs being offered, and the availability of
financial aid to the then current chair of the Pico Neighborhood Association and the Pico
Boulevard Branch Public Library at Virginia Avenue Park.
(3) For School's summer program, School shall prioritize
residents of the Pico Neighborhood along with School's existing students for both
enrollment and financial aid.
(f) LEEDO Requirement. School has retained the services of
a LEED Accredited Professional to consult with School regarding incorporation of
sustainable design features for the Project and shall refine the Project's design with the
good faith goal of attaining the number of points that would be commensurate with
achieving LEEDO credits equivalent to a "Gold" certification under the LEEDO Rating
System. If the Project achieves the number of points that would be commensurate with
achieving LEEDO Gold certification, School shall not be required to submit the project
to the Green Building Certification Institute to achieve LEEDO certification. If despite
School's good faith effort, the Project does not achieve the number of points that would
be commensurate with achieving LEEDO credits equivalent to a "Gold" certification
under the LEEDO Rating System, School shall alternatively be required to obtain
LEEDO Silver certification for the Project. School shall confirm to the City that the
design for the Project has achieved either (i) number of points that would be
commensurate with achieving LEEDO Gold certification or (ii) LEEDO Silver
certification (either of which shall be deemed to constitute the " LEEDO Requirement ")
in accordance with the following requirements of this Section 2.6.2(6.
(1) ' Consistent with Article 6 of this Agreement, School has
submitted a preliminary checklist of anticipated LEEDO credits (that was be prepared by
the LEEDO accredited professional) for review by the City of Santa Monica Green
Building Program Advisor ( "Advisor').
(2) As part of School's set of plans and documents
submitted to the City with School's plan check application for the Project's building
permit, School shall also submit the LEEDO credits identified in clause (1) above
(prepared by the LEEDO accredited professional) for review by the Advisor to
demonstrate that the Project is likely to achieve the LEEDO Requirement.
(3) If, in order to meet the LEEDO Requirement, School
elects to pursue achievement of the number of points that would be commensurate with
achieving LEEDO Gold certification instead of pursuing LEEDO Silver certification (or
a higher level of LEEDO certification), the following provisions shall apply:
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a) Prior to issuance of a final Certificate of Occupancy
for the Project, the City's Green Building Program Advisor shall verify and approve
(which approval shall not be unreasonably withheld, conditioned or delayed) that the
LEEDS credits identified in clause (1) above (prepared by the LEEDS accredited
professional) demonstrate that the Project is likely to achieve the LEEDS Requirement.
School shall meet with the Advisor at least 30 days prior to submitting the final LEEDS
credits for the Advisor's approval, and during such meeting School shall review the
LEEDS progress with the Advisor.
b) Notwithstanding the foregoing, if the Advisor has
not yet approved the LEEDS credits that demonstrate that the constructed Project has
achieved the LEEDS Requirement, the City shall nonetheless issue a temporary
Certificate of Occupancy for the Project (assuming that the Project is otherwise entitled
to receive a temporary Certificate of Occupancy). The temporary Certificate of
Occupancy shall be converted to a final Certificate of Occupancy once the Advisor
determines that the LEEDS credits for the Project demonstrate that the constructed
Project has achieved the LEEDS Requirement.
(4) If School elects to pursue LEEDS Silver
certification (or a higher level of LEEDS certification) to meet the LEEDS Requirement,
but the Project is denied certification for LEEDS Silver certification by the Green
Building Certification Institute and School is unwilling or unable to appeal the denial of
certification, then the School shall ensure that the Project achieves certification to at least
the Silver level under the LEED Existing Buildings Operations & Maintenance (LEED
EBOM) rating system that is current at the time that the Certificate of Occupancy was
issued for the Project. School shall ensure that the Project achieves the Silver level (or a
higher level) LEED EBOM certification by no later than the third annual Periodic
Review (as defined in Section 10.1) after issuance of the Certificate of Occupancy for the
Project. The process provided in this Section provides a vehicle for assuring the LEEDS
Requirement is satisfied without delaying issuance of the final Certificate of Occupancy
for this Project.
(g) TDM. School shall maintain and implement the following
Transportation Demand Management Plan ( "TDM Plan "):
(1) Maintain Employee Transportation Coordinator: An
Employee Transportation Coordinator ( "Coordinator ") shall continue to be designated as
required by the City of Santa Monica's Transportation Management Division in
accordance with SMMC Section 9.16. The Coordinator shall continue to manage all
aspects of this Transportation Demand Management TDM Plan.
(2) Compliance with SMMC Section 9.16, Performance
Targets and Monitoring. School shall comply with the SMMC Section 9.16. School shall
prepare and file Employee Trip Reduction Plans for its sites (or a multi -site plan), that
meet or exceed City requirements. School shall continue to implement the strategies
outlined in the Employee Trip Reduction Plan filed by School for the year July 1, 2012 to
June 30, 2013 except to the extent the City's Transportation Demand Program Manager
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approves modifications to such strategies in School's future Employee Trip Reduction
Plans.
(3) School shall achieve an average vehicle ridership
( "AVR ") goal of (a) 1.6 for both a.m. and p.m. peak periods until the second year after
opening of the Exposition light rail stations at Olympic Boulevard /26th Street and
Colorado Avenue /17th Street and (b) 1.75 for both a.m. and p.m. peak periods by the third
year after opening of the light rail stations at Olympic Boulevard/26th Street and Colorado
Avenue /17t Street. For proposes of determining AVR, the survey shall be conducted in
accordance with SMMC 9.16.070(d)(2)(I) except that notwithstanding Section
9.16.070(d)(4)(G), zero emission automobiles shall be included in the calculation of
vehicles arriving at the worksite. The AVR goal applies to employees only. Failure to
achieve the performance target herein shall not constitute a Default as defined in this
Agreement. Should School not achieve the target AVR in any year, School shall revise its
TDM strategies for the upcoming School year subject to the approval of the Planning
Director, to achieve the performance target herein while not substantially increasing the
cost of the TDM Program. Such revisions to the TDM Plan shall constitute Minor
Modifications pursuant to DA Section 2.4.2 and shall not require an amendment to this
Agreement. If the City adopts a new or revised ordinance that establishes an AVR goal
that is higher than the AVR goals set forth in this Section and which applies to private
schools with a comparable number of employees, such higher AVR goal shall apply to
School.
(4) Charge for Parking: School shall charge its employees
that drive to work in a single- occupancy vehicle on a regular basis for parking on
School's campus. Such charge for parking shall be no less than the monthly parking rate
in the City- operated beach parking lots.
(5) Financial Incentives for Arriving to School through
means other than Single- Occupancy Vehicle: School shall provide financial incentives to
its employees that walk, bike, take public transportation, carpool (with increased
incentives for more persons in the carpool) or otherwise arrive at School through means
other than a single- occupancy vehicle.
(6) Maintain Transportation Information Center: School
shall maintain on -site, in a conspicuous location or locations, information for its
employees and students about local public transit services (including bus lines, bus fare
programs, light rail lines, ride share programs and shuttles) and bicycle facilities
(including routes, rental and sales locations, and on -site bike racks). School shall also
continue to provide walking and biking maps for its employees and students.
(7) School shall promote ridesharing through newsletters or
other communications to School's employees, parents, students and visitors.
(8) Public Transit Subsidy In Lieu of Parking:
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a) School shall offer all its newly -hired employees
who do not purchase monthly automobile parking a free public transit pass valid every
day for at least the first month of their employment.
b) School shall also offer all its employees that
utilize public transit to commute to and from School, at least 50% reimbursement for the
cost of purchasing a public transit pass used for commuting to and from School.
(9) Maintain Guaranteed Return Trip: School shall
continue to provide van pool, car pool, and transit reliant employees with a return trip (or
to the point of commute origin), when a Personal Emergency Situation, or unplanned
business - related activity requires it, for a maximum of four trips per year per employee.
(10) Programs Aimed at Upper and Middle School Students
and Parents:
a) The Transportation Coordinator shall be
designated to assist students and parents with planning alternative means of
transportation to school, including ridesbaring, bicycling, walking or taking transit.
b) "Safe routes to school" bicycle and pedestrian
training programs conducted annually for students and parents, in accordance with the
SRTS Guide at www.saferoutesinfo.org, including:
• Development or adaptation of SRTS curricula
for middle and upper school students to
address basic pedestrian and bike safety skills,
• Identifying pedestrian and bike routes to /from
School's campus and student homes,
• Safety programs,
• Education and encouragement programs,
• Events, and
• Bike, bus, and walk "buddies" matching.
c) Celebrate "bike to school" day /week and other
events to encourage ridesharing.
d) Transit and walking /biking information in
registration packets.
e) Promote cat-pooling, biking, walking, and transit
use via newsletters and at parent meetings.
I) Alert visitors to transit, biking, etc. options
whenever parking information is provided in event flyers, advertisements, etc.
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g) Provide information about bus service and
rideshare opportunities in the school bulletin and special announcements; feature the
benefits of walking and bicycling in publications.
h) Encourage and support carpooling to events,
school, and services, by providing on -line and/or personalized matching services.
i) Offer personalized trip planning assistance for
students during registration process and as requested.
j) The School shall establish a method of collecting
baseline /current data about how middle and upper school students generally travel to and
from School (i.e. by single- occupancy vehicle, carpool, walking, biking, public transit, or
other mode of transportation), shall collect such data, and shall report such data to the
City annually.
(11) Student Parking: School shall charge students that
drive to School in a single- occupancy vehicle on a regular basis for parking on School's
campus.
(12) Bicycle Parking: School shall provide a minimum of
50 bicycle parking spaces for employees, students, and visitors. School shall increase
bicycle parking spaces on an as needed basis to meet peak bicycle parking demand for
employees, students, and visitors.
(13) Carpool Parking: School shall provide preferential
parking for employees who commute to work in employer registered carpools. Such
parking shall be either free or at a reduced rate compared with the parking charge for
employees that commute to and from School in a single- occupancy vehicle. An
employee who drives to work with at least one other employee at least four (4) days per
week may register as a carpool entitled preferential parking.
(14) Transportation Management Association: School shall
be required to participate in the formation of a geographic -based Transportation Demand
Management Association that may be defined by the City. If the City adopts a
requirement that a Transportation Management Association be formed for this geographic
area, School shall participate in organizational meetings and provide traffic demand data
to the City and to the Transportation Management Association.
(15) Changes to TDM Program. Subject to approval by the
City's Planning Director, School may modify this TDM program, including a reduction
of the number of required bicycle racks (provided such racks are not needed to
accommodate School's demonstrated actual peak bicycle parking demand), provided the
TDM program, as modified, can be demonstrated as equal or superior in its effectiveness
in trip reduction for this Project. Any such modifications shall be considered Minor
Modifications pursuant to Section 2.4.2 of this Agreement.
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2.7 Parking.
(a) Prior to development of this Project, School has been required to
provide 229 parking spaces pursuant to Administrative Approval No. 97 -056. City and
School agree that upon completion of this Project, 235 parking spaces shall be required.
(b) On at least an annual basis, School shall notify all its employees,
students and parents in writing not to park on the residential streets in the vicinity of
School. School shall provide a copy of such notice to City as and when distributed. All
new employees will be provided the same admonition during their orientation.
2.8 Design.
(a) Setbacks. School shall maintain the setbacks for the Project as shown
on the Project Plans. In the event that any inconsistencies exist between the Zoning
Ordinance and the setbacks established by this Agreement, then the setbacks required by
this Agreement shall prevail.
(b) Building Height. The maximum height of the building shall be as set
forth on the Project Plans. In the event that any inconsistencies exist between the
Zoning Ordinance and the building height allowed by this Agreement, then the building
height allowed by this Agreement shall prevail.
(c) Stepbacks. School shall maintain the stepbacks for the Project, if any,
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.
(d) Permitted Projections. Projections shall be permitted as reflected on
the Project Plans. In the event that any inconsistencies exist between the Zoning
Ordinance and the projections permitted by this Agreement, then the projections
permitted by this Agreement shall prevail. Notwithstanding the foregoing, if School
elects to satisfy its Private Developer Cultural Art Requirement (SMMC part 9.04.10.20)
through on -site installation of art, School shall have the right to propose on -site
installation of art on the roof of the Building, provided that the maximum height of any
such art may not exceed 45 feet above the Property's average natural grade unless (and
only to the extent that), prior to that time, the City has adopted a new Zoning Ordinance
and any such new Zoning Ordinance allows the height of on -site art to be treated as a
permitted projection above 45 feet. Nothing in this Agreement, including this Section
2.8(d), shall prevent School from requesting and City from allowing additional height
for art on the roof of the Building.
(e) Signage. The location, size, materials, and color of any signage shall
be reviewed by the ARB (or the Planning Commission on appeal) in accordance with the
procedures set forth in Section 6.1 of this Agreement. All signs on the Property shall be
subject to Chapter 9.52 of the SMMC (Santa Monica Sign Code) in effect as of the
Effective Date, a copy of which is set forth in its entirety in Exhibit "E". Directional
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signs for vehicles shall be located at approaches to driveways as required by the City's
Strategic Transportation Planning Division.
ARTICLE 3
CONSTRUCTION
3.1 Construction Mitigation Plan. During the construction phase of the
Project, School shall comply with the Construction Mitigation Plan attached as Exhibit
"H" hereto.
3.2 Construction Hours. School 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), School has the right to seek a
permit from the City authorizing construction activity during the times otherwise
prohibited by this Section. The Parties acknowledge and agree that, among other things,
afterhours construction permits can be granted for excavation, shoring, and concrete
pours.
3.3 Outside Building Permit Issuance Date. If School 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 School has not been issued a building
permit for the Project by the Outside Building Permit Issuance Date, the City shall not be
required to pursue its remedies under Section 11.4 of this Agreement, and this Agreement
shall, instead, automatically terminate. "Outside Building Permit Issuance Date"
means the date that is the last day of the seventy- second (72nd) fall 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 School 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 seventy- second (72nd) full calendar month after the Effective
Date (the "Extension Notice Date "), School may deliver written notice to the Planning
Director, requesting an extension of the Outside Building Permit Issuance Date for an
additional twelve (12) months. The Outside Building Permit Issuance Date may be
administratively extended not more than three (3) times for an additional twelve (12)
months per extension. The Planning Director may grant such extension if School can
demonstrate substantial progress has been made towards obtaining a building permit and
show reasonable cause why School will not be able to obtain the building permit for the
Project by the initial Outside Building Permit Issuance Date and can demonstrate that:
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(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, School shall be entitled to reconstruct the
Project in accordance with this Agreement if. (a) School 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.
3.6 Possession of Property. No building permit, grading permit, or excavation
permit may be approved until the School has demonstrated to the satisfaction of the City
Attorney's Office that School has obtained fee ownership and possession of all of the
Property required for development of the Project.
3.7 Completed and Final Landmarks Commission Review of Property.
Demolition of the existing buildings located on the Property shall be exempt from any
fruther Landmarks Commission review up through the Outside Building Permit Issuance
Date.
ARTICLE 4
PROTECT 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.
4.2 Conditions on Modifications. The City may impose fees, exactions, and
conditions in connection with its approval of Minor or Major Modifications, provided
that all fees, exactions, and conditions shall be in accordance with any applicable law.
4.3 Implementation of Conditions of Approval.
4.3.1 Compliance with Conditions of Approval. School 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 School 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
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attached Exhibit "D" shall survive the expiration of the Term of this Agreement and shall
remain binding on School, its successors and assigns, and shall continue in effect for the
life of the Project.
ARTICLE 5
EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS
5.1 Development Standards for the Property; Existing Regulations. The
following development standards and restrictions set forth in this Section 5.1 govern the
use and development of the Project and shall constitute the Existing Regulations, except
as otherwise expressly required by this Agreement.
5.1.1 Defined Ternis. The following ternis shall have the meanings set
forth below:
(a) "Existing Regulations" collectively means all of the
following which are in force and effect as of the Effective Date: (i) the General Plan
(including, without limitation, the LUCE); (ii) the Zoning Ordinance except as modified
herein; (iii) the IZO; (iv) any and all ordinances, rules, regulations, standards,
specifications and official policies of the City governing, regulating or affecting the
demolition, grading, design, development, building, construction, occupancy or use of
buildings and improvements or any exactions therefore, except as amended by this
Agreement; and (v) the development standards and procedures in Article 2 of this
Agreement.
(b) "Subsequent Code Changes" collectively means all of the
following which are adopted or approved subsequent to the Effective Date, whether such
adoption or approval is by the City Council, any department, division, office, board,
commission or other agency of the City, by the people of the City through charter
amendment, referendum, initiative or other ballot measure, or by any other method or
procedure: (i) any amendments, revisions, additions or deletions to the Existing
Regulations; or (ii) new codes, ordinances, rules, regulations standards, specifications
and official policies of the City governing or affecting the grading, design, development,
construction, occupancy or use of buildings or improvements or any exactions therefor.
"Subsequent Code Changes" includes, without limitation, any amendments, revisions or
additions to the Existing Regulations imposing or requiring the payment of any fee,
special assessment or tax.
5.1.2 Existing Regulations Govern the Project. Except as provided in
Section 5.2, development of the Building and improvements that will comprise the
Project, including without limitation, the development standards for the demolition,
grading, design, development, construction, occupancy or use of such Building and
improvements, and any exactions therefor, shall be governed by the Existing Regulations.
The City agrees that this Agreement is consistent with the General Plan, including the
LUCE, as more fully described in the Recitals. Any provisions of the Existing
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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 School and (iv) fees for monitoring compliance with any development
approvals; provided that such fees and charges are uniformly imposed by the City at
similar stages of project development on all similar applications and for all similar
monitoring.
(b) General or special taxes, including, but not limited to,
property taxes, sales taxes, parcel taxes, transient occupancy taxes, business taxes, which
may be applied to the Property or to businesses occupying the Property; provided that (i)
the tax is of general applicability City- wide and does not burden the Property
disproportionately to other similar developments within the City; and (ii) the tax is not a
levy, assessment, fee or tax imposed for the purpose of funding public or private
improvements on other property located within the Industrial Conservation District (as
defined in the City's General Plan as of the Effective Date).
(c) Procedural regulations relating to hearing bodies, petitions,
applications, notices, documentation of findings, records, manner in which hearings are
conducted, reports, recommendations, initiation of appeals, and any other matters of
procedure; provided such regulations are uniformly imposed by the City on all matters,
do not result in any unreasonable decision - making delays and do not affect the
substantive findings by the City in approving this Agreement or as otherwise established
in this Agreement.
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(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 School has consented in
writing.
(f) Collection of such fees or exactions as are imposed and set
by governmental entities not controlled by City but which are required to be collected by
City.
(g) Regulations which do not impair the rights and approvals
granted to School under this Agreement. For the purposes of this Section 5.2.1(g),
regulations which impair School'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 rerriahring provisions impractical to enforce.
5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City
and School shall use reasonable efforts to identify, assemble and copy three identical sets
of the Existing Regulations, to be retained by the City and School, 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.
School 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
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interest in, in which case such Subsequent Code Change shall be deemed to be an
Existing Regulation insofar as that portion of the Property is concerned. If there is any
conflict or inconsistency between the terms and conditions of this Agreement and the
Existing Regulations, the terms and conditions of this Agreement shall control.
5.5 Timing of Development. The California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Ca1.3d 465 (1984), that failure of the parties in
that case to provide for the riming of development resulted in a later adopted initiative
restricting the timing of development to prevail over the parties' agreement. It is the
intent of School 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 either
by floor or in aggregate from the building. Decisions of the ARB are appealable to the
Planning Commission in accordance with the Existing Regulations.
6.2 Concurrent Processing. School may concurrently process plan check
(SMMC § 8.08.060) with ARB design review (SMMC ch. 9.32); provided, however, that
School hereby agrees to accept the risk of plan check revisions if necessitated by the
outcome of the ARB design review.
ARTICLE 7
CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terns 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
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or agency of the City, which are necessary for the actual construction of the Project or
any portion thereof in accordance with the Project Site Plan and this Agreement.
Technical City Permits include, without limitation (a) building permits, (b) related
mechanical, electrical, plumbing and other technical permits, (c) demolition, excavation
and grading permits, (d) encroachment permits, (e) tiebacks and shoring permits, and (f)
temporary and final certificates of occupancy.
7.1.2 "Technical Permit Applications" means any applications
required to be filed by School 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 School 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.
7.3.1. Acceptance and Processing of Technical Permit Applications. The
obligation of the City to accept and diligently process the Technical Permit Applications
which are filed by School, and then issue the Technical City Permits, is subject to the
satisfaction of the following conditions:
(a) School 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) School 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,
School shall have obtained the approval of the ARB referred to in Section 6.1.1 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 School is subject to the satisfaction of the following conditions (and only such
conditions and no others):
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(a) School shall have complied with all of its obligations under
this Agreement which are required to be performed prior to or concurrent with the
issuance of the Technical City Permits for the proposed Building;
(b) School shall have received any permits or approvals from
other governmental agencies which are required by law to be issued prior to or concurrent
with the issuance of the Technical City Permits for the proposed Building;
(c) The proposed Building conforms to the development
standards for such Building established in this Agreement. In the event that a proposed
Building is not in conformance with the development standards, School shall have the
right to seek any relief from such standards under the procedures then available in the
City; and
(d) The proposed Building conforms to the Administrative and
Technical Construction Codes of the City (Article VIII, Chapter I 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 School 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 School. School 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 School 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 School 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 School obtains building
permits for the Project and, at any time after the Outside Construction Start Date, such
building permits expire or are revoked pursuant to the applicable terms of the SMMC (as
the same may be amended from time to time), then School may not subsequently apply
for new building permits for the Project without first obtaining the prior written consent
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of the Planning Director, which may be granted or withheld in the Planning Director's
sole discretion.
7.5 [Reserved]
ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. 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 School and the City or their successors and assigns in accordance with the provisions
of the SMMC and Section 65868 of the California Government Code.
ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the
Parties hereunder shall be effective as of the date upon which the ordinance approving
this Agreement becomes effective (the "Effective Date "). The Parties shall execute this
Agreement within ten (10) working days of the Effective Date.
9.2 Term.
9.2.1 Term of Agreement. The term of this Agreement shall commence
on the Effective Date and shall continue for twenty (20) years thereafter (the "Term "),
unless the Term is otherwise terminated pursuant to Section 11.4, after the satisfaction of
all applicable public hearing and related procedural requirements or pursuant to Section
3.3.
9.2.2 Termination Certificate. Upon termination of this Agreement, the
Parties hereto shall execute an appropriate certificate of termination in recordable form (a
"Termination Certificate "), which shall be recorded in the official records of Los
Angeles County.
9.2.3 Effect of Termination. Except as expressly provided herein (e.g.,
Section 4.3.2), none of the parties' respective rights and obligations under this Agreement
shall survive the Term.
ARTICLE 10
PERIODIC REVIEW OF COMPLIANCE
10.1 City Review. The City shall review compliance with this Development
Agreement once each year, on or before each anniversary of the Effective Date (each, a
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"Periodic Review "), in accordance with this Article 10 in order to determine whether or
not School is out -of- compliance with any specific term or provision of this Agreement.
10.2 Evidence of Good Faith Compliance. At least sixty (60) days prior to the
applicable anniversary date, School shall deliver to the City a written report
demonstrating that School 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 School with the requirements of the Existing Regulations, except as otherwise
modified by this Agreement; and (b) compliance by School 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 School of
any of its obligations under this Agreement.
10.3 Information to be Provided to School. Prior to any public hearing
concerning the Periodic Review of this Agreement, the City shall deliver to School 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 School a Notice of Breach pursuant to
Section 11.1 below, the City shall concurrently deliver to School 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 School has not
demonstrated that it is in good faith compliance with this Agreement, then the City may
issue and deliver to School a written Notice of Breach pursuant to Section 11.1 below,
and School 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 School 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 School 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,
School shall reimburse the City for its actual and reasonable costs incurred in connection
with such review.
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ARTICLE 11
DEFAULT
11.1 Notice and Cure.
11.1.1 Breach. If either Party fails to substantially to perform any term,
covenant or condition of this Agreement which is required on its part to be performed (a
"Breach "), the non - defaulting Party shall have those rights and remedies provided in this
Agreement; provided that such non - defaulting Party has first sent a written notice of
Breach (a "Notice of Breach "), in the manner required by Section 15. 1, specifying the
precise nature of the alleged Breach (including references to pertinent Sections of this
Agreement and the Existing Regulations or Subsequent Code Changes alleged to have
been breached), and the manner in which the alleged Breach may satisfactorily be cured.
If the City alleges a Breach by School, the City shall also deliver a copy of the Notice of
Breach to any Secured Lender of School 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 School,
School shall promptly commence to cure the identified Breach and shall complete the
cure of such Breach within thirty (30) business days after receipt by School 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, School 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 (30) days after receipt of the
Notice of Breach or provide evidence of Excusable Delay that prevents or delays the
completion of such cure. The thirty (3 0) 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 School in the
performance of any of its monetary obligations under this Agreement which remains
uncured (a) thirty (30) business days after receipt by School 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 School 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 School
and the City shall have available any right or remedy provided in this Agreement, at law
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or in equity. All of said remedies shall be cumulative and not exclusive of one another,
and the exercise of any one or more of said remedies shall not constitute a waiver or
election in respect to any other available remedy.
11.3 Remedies for Non - Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of Breach
from the other Party regarding a non - monetary Breach, and the non - monetary Breach
remains uncured: (a) after expiration of all applicable notice and cure periods, and (b) in
the case of a Breach by School, after the expiration of Secured Lender's Cure Period
under Section 12.1 (if a Secured Lender of School 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 School 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 School hereby stipulate that
School 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
School 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 School and School 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.
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The City and School agree that the provisions of this Section 11.3.4 do not apply for
damages which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or
provided under this Agreement or pursuant to this Agreement;.or
(c) do not arise out of or which are not connected to any
dispute, controversy, or issue regarding the application, interpretation, or effect of the
provisions of this Agreement or the application of any City rules, regulations, or official
policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be
entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the
same may be amended from time to time and shall follow the notice procedures of
Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these
remedies are applied.
11.3.6 No Damages Against School. It is acknowledged by the City
that School would not have entered into this Agreement if School 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, School 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;
(c) the application or interpretation or effect of the provisions
of this Agreement.
The City and School 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 School 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 School. If School 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 School (and to
any Secured Lender of School 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
School (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 School 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 School or (ii) if a Secured Lender has delivered a Request for Notice in
accordance with Section 12. 1, the day following the expiration of the "Secured Lender
Cure Period" (as defined in Section 12.1).
(b) If, following the conclusion of the public hearing, the City
Council: (i) determines that an Event of Non - Monetary Default has occurred or the
School has not been in good faith compliance with this Agreement pursuant to Section
10. 1, as applicable and (ii) further determines that School (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 School (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 School. If the City Council does not terminate this Agreement, but
proposes a modification to this Agreement as a result of the public hearing and School
does not (within five (5) days of receipt) execute and deliver to the City the form of
modification of this Agreement submitted to School by the City, then the City Council
may elect to terminate this Agreement at any time after the sixth day after School's
receipt of such proposed modification.
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11.5 Cessation of Rights and Obligations. If this Agreement is terminated by
the City pursuant to and in accordance with Section 11.4, the rights, duties and
obligations of the Parties under this Agreement shall cease as of the date of such
termination, except only for those rights and obligations that expressly survive the
termination of this Agreement. In such event, any and all benefits, including money
received by the City prior to the date of termination, shall be retained by the City.
11.6 Completion of Improvements. Notwithstanding the provisions of
Sections 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, School has
performed substantial work and incurred substantial liabilities in good faith reliance upon
a building permit issued by the City, then School shall have acquired a vested right to
complete construction of the Building in accordance with the terns 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
School (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 School, meet with School 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
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foreclosure, lease termination or otherwise) shall be subject to all of the terms and
conditions of this Agreement.
12.1.3 Right of Secured Lender to Cure Default.
(a) A Secured Lender may give notice to the City, specifying
the name and address of such Secured Lender and attaching thereto a true and complete
copy of the Mortgage held by such Secured Lender, specifying the portion of the
Property that is encumbered by the Secured Lender's lien (a "Request for Notice "). If
the Request for Notice has been given, at the same time the City sends to School 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 School. 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 School 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 "). I£ School 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
School's part to be performed hereunder with the same force and effect as though
performed by School.
(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 School 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
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obligations of school under this Agreement, including, without limitation, payment of all
amounts due, are being duly and promptly performed.
12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under
this Agreement to perform the obligations of School's or the affirmative covenants of
School'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 School 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 School 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 School'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. School may freely sell, transfer, exchange,
hypothecate, encumber or otherwise dispose of its interest in the Property, without the
consent of the City. School 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 School to the Property, School shall be
released from its obligations under this Agreement to the extent of such sale, transfer or
exchange with respect to the Property if : (a) School 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 School under this Agreement with respect to the Property in the form
of Exhibit "I" attached hereto (the "Assumption Agreement "). Upon such transfer of
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the Property and the express assumption of School's obligations under this Agreement by
the transferee, the City agrees to look solely to the transferee for compliance with the
provisions of this Agreement. Any such transferee shall be entitled to the benefits of this
Agreement as "School" 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. School 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 School or those of its officers, board members, agents, employees,
volunteers, contractors, subcontractors or other persons acting on its behalf (collectively
referred to as the "School Parties ") which occurs during the Term and relates to this
Agreement; (2) for any act or omission related to the operations of School Parties,
including but not limited to the maintenance and operation of areas on the Property
accessible to the public. School's obligation to defend, indemnify and hold harmless
applies to all actions and omissions of School Parties as described above caused or
alleged to have been caused in connection with the Project or Agreement, except to the
extent any Damages are caused by the active negligence or willful misconduct of any
City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to
have been suffered by the City Indemnified Parties regardless of whether or not the City
prepared, supplied or approved plans or specifications or both for the Project.
14.2 City's Right to Defense. The City shall have the right to approve legal
counsel retained by School to defend any claim, action or proceeding which School 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 School in defense of any such action, or if the City is
reasonably dissatisfied with legal counsel retained by School, the City shall have the right
(a) at School's costs and expense, to have the City Attorney undertake and continue the
City's defense, or (b) with School's approval, which shall not be reasonably withheld or
delayed, to select separate outside legal counsel to undertake and continue the City's
defense.
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ARTICLE 15
GENERAL PROVISIONS
15.1 Notices. Formal notices, demands and communications between the
Parties shall be deemed sufficiently given if delivered to the principal offices of the City
or School, 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 School:
Crossroads School for Arts and Sciences
1714 21s` Street
Santa Monica, CA. 90404
Attn: Director of Finance and Operations
Fax: 310.828.5636
With a Copes:
Harding, Larmore, Kutcher & Kozal
1250 Sixth Street, Suite 200
Santa Monica, California 90401
Attn: Christopher M. Harding
Fax: (310) 392 -3537
Notice given in any other manner shall be effective when received by the addressee. Any
Party may change the addresses for delivery of notices to such Party by delivering notice
to the other Parry 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
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mentioned herein or incidental hereto, and supersedes all negotiations or previous
agreements between the Parties or their predecessors in interest with respect to all or any
part of the subject matter hereof. Should any or all of the provisions of this Agreement
be found to be in conflict with any other provision or provisions found in the Existing
Regulations, then the provisions of this Agreement shall prevail.
15.3 Binding Effect. The Parties intend that the provisions of this Agreement
shall constitute covenants which shall run with the land comprising the Property during
the Term for the benefit thereof and that the burdens and benefits thereof shall bind and
inure to the benefit of all successors -in- interest to the Parties hereto. Every Party who
now or hereafter owns or acquires any right, title, or interest in or to any portion of the
Project during the 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 School 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 School 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
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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 School under this Agreement. The City acknowledges
that an Estoppel Certificate may be relied upon by any Property Transferee, Secured
Lender or other party.
15.7 Time. Time is of the essence for each provision of this Agreement of
which time is an element.
15.8 Excusable Delays.
15.8.1 In addition to any specific provisions of this Agreement, non-
performance by School 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 School (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 School, 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 School deems necessary or desirable for the implementation of the
Project;
(d) The institution of a referendum pursuant to Govetxrment
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 School to secure
financing be an Excusable Delay to the obligations of School.
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15.8.3 In order for an extension of time to be granted for any
Excusable Delay, School must deliver to the City written notice of the commencement of
the Excusable Delay within sixty (60) days after the date on which School becomes
aware of the existence of the Excusable Delay. The extension of time for an Excusable
Delay shall be for the actual period of the delay.
15.8.4 Nothing contained in this Section 15.8 is intended to modify
the terms of either Section 5.1.2 or Section 5.5 of this Agreement.
15.9 Governing Law. This Agreement shall be governed exclusively by the
provisions hereof and by the laws of the State of California.
15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any
court action or other proceeding commenced that includes any challenge to the validity,
enforceability or any term or provision of this Agreement, then School 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 School. The City
shall cooperate with School in any such defense as School 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 School 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 School.
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.
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15.14 Construction of this Agreement. The Parties agree that each Party and its
legal counsel have reviewed and revised this Agreement and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting Party shall not apply
in the interpretation of this Agreement or any amendments or exhibits thereto.
15.15 Other Governmental Approvals. School 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 School 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 ackrrowledgment or affidavit, if
required, any and all documents and writings, which may be necessary or proper to
achieve the purposes and objectives of this Agreement.
15.15.2 Processing. Upon satisfactory completion by School 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 School 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 Cityprovided that the development of the Project or the
Property is in accordance with such approval. Any disapproval by the City shall state in
writing the reasons for such disapproval and the suggested actions to be taken in order for
approval to be granted.
15.15.4 Processing During Third Party Litigation. If any third party
lawsuit is filed against the City or School 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 School of the initial petition or complaint challenging this
Agreement or the Project, the School may apply to the Planning Director for a tolling of
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the applicable deadlines for School to otherwise comply with this Agreement. Within 40
days after receiving such an application, the Planning Director shall either toll the time
period for up to five years during the pendency of the litigation or deny the requested
tolling.
15.15.5 State, Federal or Case Law. Where any state, federal or case
law allows the City to exercise any discretion or take any act with respect to that law, the
City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise
its discretion in such a way as to be consistent with, and carry out the terms of, this
Agreement and (ii) take such other actions as may be necessary to carry out in good faith
the terms of this Agreement.
15.16 Venue. Any legal action or proceeding among the Parties arising out of
this Agreement shall be instituted in the Superior Court of the County of Los Angeles,
State of California, in any other appropriate court in that County, or in the Federal
District Court in the Central District of California.
15.17 Exhibits. The following exhibits which are part of this Agreement are
attached hereto and each of which is incorporated herein by this reference as though set
forth in full:
Exhibit "A"
Legal Description of the Property
Exhibit `B"
Project Plans
Exhibit "C"
Permitted Fees and Exactions
Exhibit "D"
Conditions of Approval
Exhibit "E"
SMMC Article 9 (Planning and Zoning)
Exhibit "F"
Bike Path Easement Area
Exhibit "G"
[Reserved]
Exhibit "H"
Construction Mitigation Plan
Exhibit "I"
Assignment and Assumption Agreement
Exhibit Ili"
Interim Modules Plan
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 School, upon School's request, with a statement
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( "Certificate of Performance ") evidencing said completion, termination or revocation
and the release of School from further obligations hereunder, except for any further
obligations which survive such completion, termination or revocation. The Certificate of
Performance shall be signed by the appropriate agents of School 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 School. School represents to the City that, as of the Effective
Date, it has a legal or equitable interest in the 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 School. 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 School. If and when, from time to
time, during the term of this Agreement, the City and School agree that such
clarifications are necessary or appropriate, they shall effectuate such clarification through
operating memoranda approved in writing by the City and School, which, after execution,
shall be attached hereto and become part of this Agreement and the same may be further
clarified from time to time as necessary with future written approval by the City and
School. 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, School, 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 School.
15.22.1 School's Faithful Performance. The Parties acknowledge and
agree that School'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 School'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. School 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 School on the Property.
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15.22.2 Obligations to be Non - Recourse. As a material element.of this
Agreement, and in partial consideration for School's execution of this Agreement, the
Parties each understand and agree that the City's remedies for breach of the obligations of
School under this Agreement shall be limited as described in Sections 11.2 through 11.4
above.
15.23 Not a Public Dedication. Nothing in this Agreement shall be deemed to be
a gift or dedication of the Property, or of the Project, or any portion thereof, to the general
public, for the general public, or for any public use or purpose whatsoever, it being the
intention and understanding of the Parties that this Agreement be strictly limited to and
for the purposes herein expressed for the development of the Project as private property.
School 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 School 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 School 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.
SCHOOL:
THE CROSSROADS SCHOOL FOR ARTS AND
SCIENCES, a California nonprofit corporation
By: DRAFT
Name:
22000/Does /Crossroads DA 06.14.13
Page 42
Title
3J Y 11'1
CITY OF SANTA MONICA,
a municipal corporation
By: DRAFT
Name:
Title:
/ArWIDIb11
By:
DRAFT
Name:
City Clerk
APPROVED AS TO FORM:
By:
DRAFT
Name:
City Attorney
22000/Docs /Crossroads DA 06.14.13
Page 43
Approved and adopted this 9th day of July, 2013.
Pam 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. 2430 (CCS) had its introduction on June 25, 2013,
and was adopted at the Santa Monica City Council meeting held on July 9, 2013,
by the following vote:
Ayes: Councilmembers: Vazquez, Winterer
Mayor Pro Tern O'Day, Mayor O'Connor
Noes: Councilmembers: None
Absent: Councilmembers: Davis, Holbrook, McKeown,
A summary of Ordinance No. 2430 (CCS) was duly published pursuant to
California Government Code Section 40806.
ATTEST:
Sarah P. Gorman, City Clerk