O2448City Council Meeting 11 -26 -13 Santa Monica, California
ORDINANCE NUMBER 2448 (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, PALMETTO HOSPITALITY OF
SANTA MONICA ll, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND 501
COLORADO INVESTORS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
WHEREAS, on July 14, 2011, Palmetto Hospitality of Santa Monica II, LLC,
a California limited liability company, hereinafter "Developer," submitted an application
for a development agreement for a mixed -use limited service hotel project that also
includes separately leasable commercial space on portions of the ground; and
WHEREAS, a Draft Environmental Impact Report, dated December 13, 2012,
and a Final Environmental Impact Report, dated May 2013, have been prepared
analyzing the environmental effects of the development agreement; and
WHEREAS, on November 12, 201.3, the City Council adopted resolutions
certifying the Final Environmental Report and adopting a statement of overriding
considerations and mitigation monitoring plan; and
WHEREAS, the proposed Development Agreement is consistent with the
objectives, policies, general land uses and programs specified in the general plan and
any applicable specific plan, as described below and as detailed in the accompanying
City Council staff report prepared for this proposed project and exhibits thereto,
including but not limited to:
(a) The project is consistent with LUCE Policy D7.1 of the Downtown District,
in that the proposed project balances a broad mix of uses that creates dynamic activity
in both the daytime and evening hours including a 143 guest room hotel and ground
floor pedestrian- oriented and transit - oriented uses in the Downtown.
(b) The project is also consistent with LUCE Policy D1.4 of the Downtown
District, which encourages new hotels and other visitor - serving uses in the Downtown.
(c) LUCE Goal D8 of the Downtown District seeks to ensure that new
buildings in the Downtown District contribute to the pedestrian character of the
Downtown and are compatible in scale with existing buildings. Policies to implement
this goal include LUCE Policy D8.1 of the Downtown District, which seeks to locate
primary facades of buildings fronting the street at the property line or back side of the
sidewalk, to create a lively streetscape with places for people to socialize. Moreover,
LUCE Policy D8.6 of the Downtown District seeks to limit ground floor uses mostly to
active retail. LUCE Goal D9 of the Downtown District seeks to enhance the quality and
character of the streetscape and urban pattern in the Downtown. Policies to implement
this goal include LUCE Policy D9.1 of the Downtown District, which seeks to design
streets as integral parts of the urban open space in the Downtown by encouraging
strategies such as widening sidewalks in key locations. LUCE Policy D9.4 of the
Downtown District seeks to locate active retail space on a pedestrian street facing the
sidewalk at the ground floor. The ground floor design of the project provides a ground
2
floor setback of 20 feet along Colorado Avenue and 15 feet along 5th Street as
contemplated in the future Downtown Specific Plan, which effectively widens the
sidewalk for adequate pedestrian accessibility, and would allow for ground floor retail
space that would activate the street. Thus, proposed project is consistent with the
above referenced LUCE goals and policies for Downtown.
(d) Consistent with LUCE Policy D7.2 of the Downtown District, the project
encourages local- serving uses that are an integral part of complete neighborhoods and
support an overall trip reduction strategy. The proposed Transportation Demand
Management ( "TDM ") plan for the project seeks to reduce the overall parking demand
and vehicular trips within the area by providing bicycle facilities for hotel guests and
employees, and provisions for transit subsidies for hotel and commercial retail
employees.
(e) The proposed Development Agreement allows for the redevelopment of
existing, underutilize properties with a hotel project that is compliant with the new Land
Use and Circulation Element vision for the area.
(f) The Development Agreement is consistent with recognized urban design
principles that reflect the goals and policies of the City of Santa Monica which were
established through a long range planning process and are reflected in the recently
adopted update of the Land Use and Circulation Element of the City's General Plan.
(g) The proposed project would provide community benefits consistent with
Chapter 3.2 of the LUCE, including but not limited to, a Colorado Esplanade
contribution, a Transportation Impact Contribution, and a TDM plan.
191
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, Palmetto Hospitality of Santa Monica ll, LLC, a California limited liability
company, and 501 Colorado Investors LLC, a California limited liability company, is
hereby approved.
, SECTION 2. Each and every term and condition of the Development Agreement
approved in Section 1 of this Ordinance shall be and is made a part of the Santa Monica
Municipal Code and any appendices thereto. The City Council of the City of Santa
Monica finds that public necessity, public convenience, and general welfare require that
any provision of the Santa Monica Municipal Code or appendices thereto inconsistent
with the provisions of this Development Agreement, to the extent of such
inconsistencies and no further, be repealed or modified to that extent necessary to
make fully effective the provisions of this Development Agreement.
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.
0
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of any competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance, and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall be effective
30 days from its adoption.
APPROVED AS TO FORM:
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,
PALMETTO HOSPITALITY OF SANTA MONICA TI, LLC
AND
501 COLORADO INVESTORS LLC
NOVEMBER 26, 2013
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
TABLE OF CONTENTS
Recitals............................................................................................................
...............................
l
Article1
Definitions ................................................................................ ..............................3
Article 2
Description of the Project ....................................................... ...............................
6
2.1
General Description ................................................................. ..............................6
2.2
Principal Components of the Project ...................................... ...............................
6
2.3
No Obligation to Develop ....................................................... ...............................
6
2.4
Vested Rights ......:.................................................................... ..............................7
2.5
Permitted Uses ........................................................................ ...............................
9
2.6
Alcoholic Beverage Permits ................................................... .............................10
2.7
Significant Project Features and LUCE Community Benefits ............................10
2.8
Parking .................................................................................. ...............................
26
2.9
Design .................................................................................... .............................26
Article3
Construction .......................................................................... ...............................
27
3.1
Construction Mitigation Plan ................................................ ...............................
27
3.2
Construction Hours ............................................................... ...............................
27
3.3
Outside Building Permit Issuance Date ................................ ...............................
27
3.4
Construction Period ................................................................ .............................28
3.5
Tiebacks .................................................................................. .............................28
3.6
Construction Staging ............................................................. ...............................
28
3.7
Damage or Destruction ......................................................... ...............................
28
3.8
Completed and Final Landmarks Commission Review ........ ...............................
29
Article 4
Project Fees, Exactions, Mitigation Measures and Conditions ............................
29
4.1
Fees, Exactions, Mitigation Measures and Conditions ........... .............................29
501 ColoradoDAgmt.1001
LKLK
Final: November
26, 2013
i
4.2
Conditions on Modifications ................................................. ...............................
29
4.3
Implementation of Mitigation Measures and Conditions of Approval ...............
29
Article 5
Effect of Agreement on City Laws and Regulations ............ ...............................
30
5.1
Development Standards for the Property; Existing Regulations .........................
30
5.2
Permitted Subsequent Code Changes ................................... ...............................
31
5.3
Common Set of Existing Regulations ................................... ...............................
32
5.4
Conflicting Enactments ......................................................... ...............................
32
5.5
Timing of Development ........................................................ ...............................
33
Article 6
Architectural Review Board ................................................. ...............................
33
6.1
Architectural Review Board Approval ................................. ...............................
33
6.2
Expiration of ARB Approval ................................................ ...............................
33
Article 7
City Technical Permits .......................................................... ...............................
33
7.1
Definitions ............................................................................... .............................33
7.2
Diligent Action by City ......................................................... ...............................
34
7.3
Conditions for Diligent Action by the City ........................... ...............................
34
7.4
Duration of Technical City Permits ...................................... ...............................
35
Article 8
Amendment and Modification ................................................ .............................36
8.1
Amendment and Modification of Development Agreement ...............................
36
Article9
Term ........................................................................................ .............................36
9.1
Effective Date ....................................................................... ...............................
36
9.2
Term ........................................................................................ .............................36
Article 10
Periodic Review of Compliance ................................................. ...............................
36
10.1
City Review .......................................................................... ...............................
36
10.2
Evidence of Good Faith Compliance ...................................... .............................37
10.3
Information to be Provided to Developer ............................. ...............................
37
501 ColoradoDAgmt.10011.KLK
Final: November
26, 2013
ii
10.4
Notice of Breach; Cure Rights .............................................. ...............................
37
10.5
Failure of Periodic Review ................................................... ...............................
37
10.6
Termination of Development Agreement ............................. ...............................
37
10.7
City Cost Recovery ............................................................... ...............................
37
Article11
Default ..................................................................................... .............................38
11.1
Notice and Cure .................................................................... ...............................
38
11.2
Remedies for Monetary Defaul t .............................................. .............................38
11.3
Remedies for Non - Monetary Default ................................... ...............................
39
11.4
Modification or Termination Agreement by City ................. ...............................
41
11.5
Cessation of Rights and Obligations ....................................... .............................42
11.6
Completion of hnprovements ............................................... ...............................
42
Article12
Mortgagees .............................................................................. .............................42
12.1
Encumbrances on the Property ............................................. ...............................
42
Article 13
Transfers and Assignments ..................................................... .............................44
13.1
Transfers and Assignments ..................................................... .............................44
13.2
Release Upon Transfer .......................................................... ...............................
45
Article 14
Indemnity to City .................................................................... .............................45
14.1
Indemnity .............................................................................. ...............................
45
14.2
City's Right to Defense ........................................................... .............................46
Article 15
General Provisions .................................................................. .............................46
15.1
Notices .................................................................................. ...............................
46
15.2
Entire Agreement; Conflicts ................................................. ...............................
47
15.3
Binding Effect ....................................................................... ...............................
47
15.4
Agreement Not for Benefit of Third Parties ......................... ...............................
47
15.5
No Partnership or Joint Venture ............................................. .............................47
501 ColoradoDAgmt. 100 1 LKLK
Final: November 26, 2013
iii
15.6
Estoppel Certificates ............................................................. ...............................
47
15.7
Time ........................................................................................ .............................49
15.8
Excusable Delays .................................................................... .............................49
15.9
Governing Law ..................................................................... ...............................
50
15.10
Cooperation in Event of Legal Challenge to Agreement ...... ...............................
50
15.11
Attorneys' Fees ....................................................................... .............................50
15.12
Recordation ............................................................................. .............................51
15.13
No Waiver ............................................................................... .............................51
15.14
Construction of this Agreement ............................................ ...............................
51
15.15
Other Governmental Approvals ............................................ ...............................
51
15.16
Venue ..................................................................................... .............................52
15.17
Exhibits ................................................................................... .............................52
15.18
Counterpart Signatures ............................................................ .............................53
15.19
Certificate of Performance .................................................... ...............................
53
15.20
Interest of Developer and Property Owner ........................... ...............................
53
15.21
Operating Memoranda .......................................................... ...............................
53
15.22
Acknowledgments, Agreements and Assurance on the Part of Developer .........
54
15.23
Not a Public Dedication ........................................................ ...............................
54
15.24
Other Agreements ................................................................... .............................55
15.24
Severability and Termination ................................................ ...............................
55
501 ColoradoDAgmt.l00ll.KLK
Final: November 26, 2013
1AN
Exhibit "A"
Exhibit `B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F -1"
Exhibit "F -2"
Exhibit "G -1"
Exhibit "G -2"
Exhibit "H"
Exhibit "I"
Exhibit "J"
Exhibit "K"
Exhibit "L"
Legal Description
Project Plans
Permitted Fees and Exactions
Mitigation Measures and Conditions of Approval
SMMC Article 9 (Planning and Zoning)
Local Hiring Program for Construction
Local Hiring Program for Permanent Employment
Hotel Conditions to Dispense Alcohol from the Suite Shop
Hotel Conditions to Dispense Alcohol from Common Areas
Incidental Food Service Conditions to Dispense Alcohol
Parking and Deliveries Management Plan
[RESERVED]
Construction Mitigation Plan
Assignment and Assumption Agreement
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
vN
DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement "), dated 2013
( "Effective Date "), is entered into by and between PALMETTO HOSPITALITY OF
SANTA MONICA II, LLC, a California limited liability company ( "Developer "), 501
COLORADO INVESTORS LLC, a California limited liability company (the "Owner "),
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. Owner is the owner of approximately 22,500 square feet of land located in
the City of Santa Monica, State of California, commonly known as 501 Colorado
Avenue, as more particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference (the "Property "). The Property is currently developed with a
commercial building above subterranean parking.
C. Developer has an equitable interest in the Property. Developer has a
contractual right from Owner to develop and operate a hotel project on the Property
pursuant to a ground lease of the Property.
D. Developer has entered into a franchise agreement with Hilton Hotels &
Resorts to operate a Hampton Inn & Suites on the Property. That franchise agreement
expires on October 31, 2035.
E. The Property is located within the Downtown Core land use designation
under the City's recently adopted Land Use and Circulation Element of its General Plan
(the "LUCE "). The Property is located within the C3 -C Downtown Overlay District
under the City's Zoning Ordinance.
F. Developer desires to demolish the existing structures and construct a new
six -story building on the Property with a subterranean parking garage. The new building
will be used primarily as a moderately priced hotel, together with other separately
leasable commercial space on portions of the ground floor intended for commercial uses
as provided in this Agreement.
G. On July 14, 2011, Developer filed an application for a Development
Agreement, pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.48.020
(the "Development Application "). The Development Application was designated by the
City as Application No. DEV 11 -009. The Development Application is for a mixed -use,
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
limited- service hotel project that also includes separately leasable commercial space on
portions of the ground floor intended for retail or related commercial uses, and is more
fully described in this Agreement (the "Project ").
H. On April 26, 2011, the City Council adopted Interim Ordinance No. 2356
( "IZO "). The City Council has extended and/or modified the IZO on several occasions
thereafter. The IZO prohibits the issuance of permits for development projects which
would exceed 32 feet in height in the Downtown Core as delineated in the 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.
I. Following filing of the Development Application, the City prepared and
circulated for public review and continent a Draft Environmental Impact Report (the
"DEIR ") pursuant to the California Environmental Quality Act ( "CEQA") and
designated SCH No. 2012041084. Following close of the continent period, the City
prepared a Final Environmental Impact Report pursuant to CEQA (the "FEIR ").
J. The primary purpose of the Project is to establish a new limited - service,
mixed-use hotel project that also includes separately leasable commercial space on
portions of the ground floor intended for restaurant, retail or related comrercial uses.
Consistent with the LUCE, the Project is designed to be pedestrian- friendly and is located
one block away from the forthcoming Exposition Light Rail terminus station in the City's
Downtown. 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.
K. The City Council has determined that a development agreement is
appropriate for the proposed development of the Property. This Agreement will
(1) eliminate uncertainty in planning for the Project and result in the orderly
development of the Project, (2) assure installation of necessary improvements on the
Property, (3) provide for public infrastructure and services appropriate to development of
the Project, (4) preserve substantial City discretion in reviewing subsequent development
of the Property, (5) secure for the City improvements that benefit the public, and
(6) otherwise achieve the goals and purposes for which the Development Agreement
Statutes were enacted.
L. This Agreement is consistent with the public health, safety, and welfare
needs of the residents of the City and the surrounding region. The City has specifically
considered and approved the impact and benefits of the development of the Project on the
Property in accordance with this Agreement upon the welfare of the region. Consistent
with the LUCE, the Project will provide a number of significant project features and
community benefits as set forth in Section 2.7 of this Agreement.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
M. The City Council has found that the provisions of this Development
Agreement are consistent with the relevant provisions of the City's General Plan,
including the LUCE.
N. On March 4, 2013, the City's Architectural Review Board performed
conceptual review of the Project Plans and was generally favorable as to the design of the
Building with certain suggested refinements.
O. On October 16, 2013, after having held duly noticed public hearings on
the Development Application, the FIR and this Agreement, the City's Planning
Commission recommended that the City Council certify the FIR and further
recommended that the City Council deny approval of this Agreement until various
provisions of concern to the Planning Commission were addressed.
P. On November 12, 2013, the City Council held a duly noticed public
hearing on the Development Application, the FIR and this Agreement, and at such
hearing the City [describe CEQA action] and introduced Ordinance No. for first
reading, approving this Agreement.
Q. 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 Agreement expressly requires otherwise:
1.1 "Agreement" means this Development Agreement entered into between
the City and Developer as of the Effective Date.
1.2 "ARB" means the City's Architectural Review Board.
1.3 "Building" means the new six -story mixed -use hotel building with a two -
level subterranean parking garage proposed by Developer to be developed on the
Property. Building includes the Hotel and Leasable Space.
1.4 "Building Height" has the meaning as defined in Zoning Ordinance
Section 9.04.10.02.030, except that for the purposes of calculating this Project's Building
Height, the roof shall include the horizontal waterproofing membrane of the Project's
roof, but not any crickets, flashings, parapets, or other elements at the rooftop of the
Building that are installed atop, or as an extension of, the roof s waterproofing membrane
surface.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
1.5 "City Council" means the City Council of the City of Santa Monica, or its
designee.
1.6 "City Parties" means the City, its City Council, boards and commissions,
departments, officers, agents, employees, volunteers and other representatives.
1.7 "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,
cornmission, or department of the City and any officer or employee of the City.
Discretionary Approvals do not include Ministerial Approvals.
1.8 "Effective Date" has the meaning set forth in Section 9.1 below.
1.9 "Floor Area" has the meaning as defined in Section 9.04.02.030.315 of
the Zoning Ordinance; provided, however, that mechanical rooms located on roof areas
shall not count as floor area if used for solar - related equipment.
1.10 "Floor Area Ratio" and FAR" mean the Floor Area of the Project, as
calculated in accordance with Section 1.9 of this Agreement, divided by the area of the
Property; provided, however, that in accordance with the IZO, Subterranean Space
(regardless of its use) shall not be included in the calculation of the FAR and outdoor
dining areas shall not be included in the calculation of the FAR.
1.11 "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.
1.12 "Hotel" means a moderately priced hotel offering temporary lodging to
patrons for not more than thirty (30) consecutive days including, but not limited to, an
establishment held out to the public as a motor lodge, motel, apartment hotel, hostel, inn,
tourist court or other similar transient use. Hotel shall not include the Leasable Space
provided such Leasable Space is leased to and operated by a third party separate and
independent of the operator of the Hotel.
1.13 "Hotel Use" means those activities and services customarily associated
with a limited - service hotel which may include, without limitation, meeting and
breakfast/luncheon/dining rooms, cafe, Restaurant, lounge and associated support
facilities, fitness /exercise room and equipment for hotel guests only, business
convenience center, retail sundry shop, Incidental Food Service, swimming pool /sun
deck, jacuzzi, and valet or attendant parking services. Hotel Use shall not pertain to the
Leasable Space provided such Leasable Space is leased to and operated by a third party
separate and independent of the operator of the Hotel.
1.14 "Incidental Food Service" has the meaning given that term in Section
9.04.02.030.420 of the SMMC.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
1.14 "Including" means "including, but not limited to."
1.15 "Leasable Space" means the ground floor areas of the Building identified
as "Leasable Space" on the Project Plans.
1.16 "LEED® Rating System" means the Leadership in Energy and
Environmental Design (LEED (b) for New Construction & Major Renovations adopted by
the U.S. Green Building Council and implemented by the Green Building Certification
Institute in effect at the time of ARB submittal. In the event no such system exists at the
time Developer submits for ARB approval, an alternative green building rating system
may be selected by the Developer subject to approval by the City.
1.17 "Legal Action" means any action in law or equity.
1.18 "Maximum Floor Area" means 78,750 square feet of Floor Area.
1.19 "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.
1.20 "Parties" mean both the City and Developer and "Party" means either
the City or Developer, as applicable.
1.21 "Planning Director" means the Planning Director of the City of Santa
Monica, or his or her designee.
1.22 'Project" means all aspects of the proposed development of the Property
as more particularly described in this Agreement and on the Project Plans
1.23 "Project Plans" mean the plans for the Project that are attached to this
Agreement as Exhibit `B."
1.24 "Restaurant Uses" shall have the meaning given the term "Restaurant" as
defined in Section 9.04.02.030.730 of Existing Regulations.
1.25 "Subterranean Space" means all space in the Project below the ground
floor as shown on the Project Plans attached as Exhibit `B."
1.26 "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, as set forth in
its entirety within Exhibit "E" (Planning and Zoning).
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
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 of all existing structures on the Property.
(b) Construction of a mixed -use hotel development on the
Property in accordance with the Project Plans for:
(i) Hotel Use having up to 143 guest rooms and other
Hotel facilities, and
(ii) the Leasable Space with a minimum of 1,000 square
feet and maximum of 2,500 square feet of Floor Area on the ground floor intended for
retail, personal services or related commercial uses.
(e) Construction of a multi -level subterranean parking garage
and basement on the Property in accordance with the Project Plans with a minimum of
seventy -eight (78) striped parking spaces consisting of standard, compact and
handicapped spaces.
2.3 No Obligation to Develop.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require
Developer to proceed with the construction of the Project or any portion thereof.
(b) The decision to proceed or to forbear or delay in
proceeding with construction of the Project or any portion thereof shall be in Developer's
sole discretion.
(c) Failure by Developer to proceed with construction of the
Project or any portion thereof shall not give rise to any liability, claim for damages or
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
cause of action against Developer, except as may arise pursuant to a nuisance abatement
proceeding under SMMC Chapter 8.96, or any successor legislation.
2.3.2 Failure by Developer to proceed with construction of the Project or
any portion thereof shall not result in any loss or diminution of development rights,
except upon expiration of Developer's vested rights pursuant to this Agreement, or the
termination of this Agreement.
2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary,
if Developer proceeds with the construction of the Project, except as otherwise expressly
limited in this Agreement, Developer shall be required to implement all mitigation
measures and conditions of approval required under this Agreement in accordance with
Exhibit "D ". If Developer has proceeded with the construction of the Project, the
mitigation measures and conditions of approval in Exhibit "D" shall survive termination
of this Agreement (except as otherwise expressly limited in this Agreement), and notice
of the mitigation measures and conditions shall be recorded separately from and
concurrently with this Agreement.
2.4 Vested Rights.
2.4.1 Approval of Project Plans. The City hereby approves the Project
Plans. The City shall maintain a complete copy of the Project Plans, stamped
"Approved" by the City, in the Office of the City Clerk, and Developer shall maintain a
complete copy of the Project Plans, stamped "Approved" by the City, in its offices or at
the Project site. The Project Plans to be maintained by the City and Developer shall be in
a half -size set. Further detailed plans for the construction of the Building and
improvements, including, without limitation, structural plans and working drawings shall
be prepared by Developer subsequent to the Effective Date based upon the Project Plans.
2.4.2 Minor Modifications to Project. Developer with the approval of
the Planning Director, may make minor changes to the Project or Project Plans ( "Minor
Modifications ") without amending this Agreement; provided that the Planning Director
makes the following specific findings that the Minor Modifications: (i) are consistent
with the Project's approvals as approved by the City Council; (ii) are consistent with the
provisions, purposes and goals of this Agreement; (iii) are not detrimental to the public
health, safety, convenience or general welfare; and (iv) will not significantly and
adversely affect the public benefits associated with the Project. The Planning Director
shall notify the Planning Commission in writing of any Minor Modifications approved
pursuant to this Section 2.4.2. Any proposed change which the Planning Director denies
as not qualifying for a Minor Modification based on the above findings must be
processed as a Major Modification.
2.4.3 Modifications Requiring Amendment to this Agreement.
Developer shall not make any "Major Modifications" (defined below) to the Project
without first amending this Agreement to permit such Major Modifications. A "Major
Modification" means the following:
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
(a) Reduction of any minimum ground floor setback of the
Project, as depicted on the Project Plans, if by such reduction the applicable setback
would be less than is permitted in the applicable zoning district under the Zoning
Ordinance in effect on the date such modification is applied for;
(b) Any change in use not consistent with the permitted uses
defined in Section 2.5 below;
(c) Any one time increase in the number of hotel guest rooms
specified in Section 2.2(b) by more than one (1) guest room, or any reduction in the
number of hotel guest rooms specified in Section 2.2(b) by more than 4 guest rooms;
(d) Any decrease in the number of parking spaces shown on
the Project Plans by more than 8 marked parking spaces;
(e) Any material change in the curb cuts shown on the Project
Plans;
(f) Any variation in the design, massing or building
configuration, including but not limited to, Floor Area and Building Height, that renders
such aspects out of substantial compliance with the Project Plans after ARB Approval;
and
(g) Any change that would substantially reduce or alter the
community benefits or significant project features as set forth in Section 2.7.
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 his or her approval of a request for such
Minor Modification. The City may impose fees, exactions, conditions, and mitigation
measures in connection with its approval of a Minor or Major Modification, subject to
any applicable law. Notwithstanding anything to the contrary herein or in the Existing
Regulations, if the Planning Director approves a Minor Modification or if the City
approves a Major Modification (and the corresponding amendment to this Agreement for
such Major Modification), as the case may be, Developer shall not be required to obtain
any other Discretionary Approvals for such modification, except for ARB approval, in
the case of certain Major Modifications.
2.4.5 Right to Develop. Subject to the provisions of Section 3.3 below,
during the Term (as defined in Section 9.2 below) of this Development Agreement,
Developer shall have the vested rights (the "Vested Rights ") to (a) develop and construct
the Project in accordance with the following: (i).the Project Plans (as the same may be
modified from time to time in accordance with this Agreement); (ii) any Minor
Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications
501Coloradol)Agmt.1001 LKLK
Final: November 26, 2013
which are approved pursuant to Section 2.4.3; and (iv) the requirements and obligations
of Developer related to the improvements which are specifically set forth in this
Agreement, and (b) use and occupy the Project for the permitted uses set forth in
Section 2.5. Except for any required approvals from the ARB pursuant to Section 6.1 of
this Agreement, the City shall have no further discretion over the elements of the Project
which have been delineated in the Project Plans (as the same may be modified from time
to time in accordance with this Agreement).
2.5 Permitted Uses. The City approves the following perritted uses for the
Project:
2.5.1 Permitted Uses. Pursuant to this Agreement, Permitted Uses in the
Project shall be as specified below:
(a) At the ground floor, the following are Permitted Uses:
(i) Within the Hotel: all Hotel Uses are permitted.
(ii) Within the Leasable Space on the ground floor: At
the ground floor, the following are Permitted Uses: Hotel Use, Incidental Food Service,
cafes, retail shops and personal services, neighborhood- serving uses, and transit and
pedestrian- oriented uses. Other uses may be approved by the Planning Director, in
accordance with Section 2.4.2 of this Agreement, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, banks and auto repair shall not
be permitted.
(iii) Alley Deliveries: In addition to the locations
specified on the Project Plans for off- street loading, the western half of Fifth Court alley
along the shared eastern boundary of the Property may be used for deliveries and loading
to and from the Project between the hours of 10:00 a.m. and 2:00 p.m daily.
(iv) Above the ground floor: the following is a
Permitted Use: Any and all Hotel Uses.
(v) = brthe Subterranean Space:- Parking including valet
parking, car share parking, and Shared Parking in accordance with Section 2.7.2(i) below;
Hotel Uses including an employee lounge, shower and lockers; bicycle storage /parking;
mechanical and electrical equipment; storage space; and any other uses that are
designated as Permitted Uses for the Zoning District in which the Property is located
provided that either (xx) the Planning Director has determined, in writing, that there is
adequate parking based on a parking demand study or (yy) a parking in -lieu fee has been
paid to the City for such additional use beyond those uses contemplated in this
Agreement and the Project Plans.
2.5.2 Conditionally Permitted Uses. "Conditionally Permitted Uses"
include (a) all uses that are identified as Conditionally Permitted Uses in the SMMC in
effect at the time the use is sought to be established, with the exception of any uses that
5 01 Co Lora doDAgmt.1001 L KLK
Final: November 26, 2013
W
are defined as Permitted Uses herein, and (b) any uses requiring a Conditional Use Permit
in Section 2.6.3. Conditionally Permitted Uses may commence operating at the Project
upon issuance of a Conditional Use Permit ( "CUP ") in accordance with the procedures
established in the SMMC and the issuance of a business license.
2.6 Alcoholic Beverage Permits.
2.6.1 Hotel. The Hotel operator may sell and/or furnish alcoholic
beverages ( "Alcoholic Beverages ") to Hotel guests within Hotel common areas
(including the ground floor lobby, pantry, breakfast dining area, multi- function meeting
space, lounge, and the second floor terrace, spa, and deck areas) without obtaining a
conditional use permit pursuant to SMMC Section 9.04.10.18 so long as the operator
agrees in writing to comply with the terms and conditions in Exhibit "G -2 ".
Additionally, the Hotel operator may sell Alcoholic Beverages to Hotel guests from the
suite shop without obtaining a conditional use permit pursuant to SMMC Section
9.04.10.18 so long as the operator agrees in writing to comply with the terms and
conditions in Exhibit "G -1 ". Notwithstanding the foregoing, the operator may apply for
a conditional use permit pursuant to SMMC Section 9.04.10.18 in order to sell or furnish
alcoholic beverages for consumption on terms other than those in Exhibits "G -1" or "G-
2". This Section 2.6.1 shall survive the expiration of the Term of this Agreement and
shall remain binding on Developer, its successors and assigns, and shall continue in effect
for the life of the Project. Notice of the terms and conditions in Exhibits "G -1" and "G-
2" shall be recorded separately from and concurrently with this Agreement.
2.6.2 Incidental Food Service. Whether as part of the Hotel operations
or not, an Incidental Food Service operator may dispense for sale or other consideration,
Alcoholic Beverages for on -site consumption in all or any portion of the Project Plans
marked as "Leasable Space' so long as the operator agrees in writing to comply with the
terms and conditions in Exhibit "H ". The permitted service area may include any
outdoor seating where meal service is available. Developer shall cause all Incidental
Food Service operator leases or transfers of ownership to contain a clause that requires
the new operator to comply with the terms and conditions in Exhibit "H" in the event that
Alcoholic Beverages are intended to be dispensed for on -site consumption.
Notwithstanding the foregpirig„tbe nperator of any such Incidental I p 4 Service may
apply for a conditional use permit pursuant to SMMC Section 9.04.10.18 in order to sell
or furnish alcoholic beverages for consumption on -site on terms other than those in
Exhibit H. This Section 2.6.2 shall survive the expiration of the Term of this Agreement
and shall remain binding on Developer, its successors and assigns, and shall continue in
effect for the life of the Project.
2.6.3 Conditional Use Permit. A conditional use permit pursuant to
SMMC Section 9.04.10.18 shall be required for any proposed use in the Building that
(a) includes the service or sale of alcoholic beverages and (b) does not comply with the
conditions set forth in Sections 2.6.1 or 2.6.2. Notwithstanding the foregoing, no
conditional use permit shall be required for catered events for which the necessary
permits then required for such events have been obtained. This Section 2.6.3 shall survive
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
10
the expiration of the Term of this Agreement and shall remain binding on Developer, its
successors and assigns, and shall continue in effect for the life of the Project.
2.7 Significant Project Features and LUCE Community Benefits. The
significant project features and LUCE community benefits identified below in this
Section 2.7 shall be achieved and developed in accordance with the terns of this
Agreement.
2.7.1 Simificant Project Features. Set forth below in this Section 2.7.1
are project features that will be provided to the City:
(a) tax revenues, including transient occupancy tax, sales tax,
property tax, business license tax, parking tax, and utility user's tax;
(b) a desirable mix of uses within a new Building to be
constructed in the Downtown immediately across the street from the Exposition Light
Rail terminus station;
(c) enhanced architecture -- including the qualities of the
Building massing, materials, finishes and colors -- at an important gateway location to the
City's Downtown from the Fifth Street I -10 Freeway off -ramp and immediately across
the street from the Exposition Light Rail terminus station. The architectural design of
this Hampton Inn & Suites Hotel has been tailored specifically for Santa Monica and is
greatly enhanced in comparison with other Hampton Inn & Suites facilities. Moreover,
also consistent with the LUCE, this Project is paired with a concurrent hotel project
across the street at 1550 Fifth Street at this gateway location.
(d) providing new employment opportunities in the Hotel and
Leasable Space;
(e) providing the City with fee revenue for child care facilities;
(f) providing the City with fee revenue for cultural arts;
-- -(g) providing -the Santa-Monica-Malibu Unified School District
with fee revenue for capital improvements;
(h) installation of standard water and wastewater reduction
fixtures within the Project as legally applicable;
(i) construction jobs;
6) various standard public improvements and fees; and
- - (k) trip reduction measures as required by SMMC Chapter
9.16.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
11
(1) Hotel Living Wage.
(i) Purpose. The purpose of this subsection (1) is to
ensure that Hotel workers receive fair and reasonable compensation as a significant
Project benefit. This Hotel's living wage obligations shall be generally comparable to
those provisions that may be imposed on other hotels seeking approval of development
agreements in Santa Monica, while taking into account the average daily room rates of
those other hotels in comparison to this Hotel's average daily room rate.
(ii) All Hotel Workers Covered. To the extent they are
working at the Property, all workers performing Hotel Use services, whether as
employees of the Hotel or as employees of a contractor providing Hotel Use services
within the Hotel, shall be covered by this subsection (1); provided, however, that
notwithstanding the foregoing, the employees of any third party contractors providing the
following services at the Hotel shall not be considered a Hotel Use service covered by
this subsection (1):
1. Parking attendants /valets
Bicycle attendants
Bicycle maintenance
4. Security officers
Equipment or facility maintenance
(iii) Living Wage Amount. Workers covered by this
subsection (1) shall be paid at least the minimum hourly wage rate specified herein as a
Hotel Living Wage. This requirement shall not apply to workers who do not spend the
majority of their hours of employment during a normal work week on the Property. The
initial amount of the Hotel Living Wage required by this Section shall be $15.37 per
hour, without any deduction on account of any gratuity or any part thereof given to or left
for a Hotel worker by a Hotel patron. Any tips received by Hotel workers covered by this
subsection (1) shall be the sole-property of-the worker or workers to whom it was paid,
given or left for.
(iv) CPI Adjustment. The Hotel Living Wage minimum
hourly rate required by this subsection (1) shall be adjusted annually in accordance with
SMMC section 4.65.010.
(v) Collective Bargaining Exception. The provisions of
this subsection (1) may be waived, in full or in part, in a bona fide collective bargaining
agreement, but only if and to the extent the waiver is explicitly set forth in such
agreement in clear and unambiguous terms. Unilateral implementation of terms and
conditions of employment by either party to a collective bargaining relationship shall not
constitute, or be permitted as, a waiver of all of any part of the provisions of this
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
12
subsection (1) . This provision shall not negate the confidential nature of any such
collective bargaining agreement, and City hereby agrees to maintain the confidentiality of
such collective bargaining agreement, including all of its terms except only that City can
disclose the extent to which such an agreement contains an explicit waiver of any of the
terms or provisions of this Development Agreement.
(vi) Expiration. If not terminated any earlier, this
subsection (1) shall automatically expire and be of no further force or effect upon
expiration of this Agreement.
(vii) Termination Rights. In the event the City adopts a
Living Wage Ordinance of general application to hotels located within the City, including
the Hotel within this Project, then the provisions of this subsection (1) shall automatically
be of no further force and effect.
(viii) Leasable Space. So long as the Leasable Space is
leased and operated by a third party not related to Developer or the Hotel operator, the
workers in the Leasable Space shall not be governed by the Living Wage provisions
specified this subsection (1).
2.7.2 LUCE Community Benefits. Set forth below in this Section 2.7.2
are the community benefits that will be provided by the Project.
(a) Community Physical Improvements. Developer shall
incorporate, construct, operate and maintain enhanced elements of the Building's design,
including an Enhanced Walkway Area as shown on the Project Plans. Developer shall
make the Enhanced Walkway accessible to the public at all times, except that Developer
may limit public access to such Enhanced Walkway between the hours of 2:00 am
through 5:00 am. The public use of the Enhanced Walkway shall be: (i) consistent with
the terms and conditions of this Agreement; (ii) solely for pedestrian access to and
passive use of the Enhanced Walkway by the public, including walking, strolling, and
similar activity; and (iii) compatible with Developer's development, use and enjoyment
of the Project. No use other than pedestrian access to and passive use of the Enhanced
Walkway by the public shall be permitted on the Enhanced Walkway. Notwithstanding
the above, Developer may Iimit public access to the Enhanced Walkway Area during
other hours, but only if the Enhanced Walkway area is utilized for outdoor dining.
In the event any portion of the Hotel and /or Leasable Space
is occupied by any Incidental Food Service use, Developer and/or the Incidental Food
Service Operator shall ensure that tables and chairs are provided in the Enhanced
Walkway as shown on the Project Plans, or as otherwise may be approved by the
Planning Director, to accommodate not less than six (6) and not more than twelve (12)
patrons during the Incidental Food Service's hours of service. Any request for additional
exterior seating shall be subject to Planning Director approval as provided in Condition
10 of Exhibit H.
501 Col oradoDAgmt.10011.KLK
Final: November 26, 2013
13
In the event the Hotel and/or Leasable Space is not
occupied by an Incidental Food Service use, Developer and /or Leasable Space
Operator(s) shall nonetheless ensure that outdoor seating is provided in the Enhanced
Walkway as shown on the Project Plans, or as otherwise may be approved by the
Planning Director, to accommodate not less than nine (9) persons, or as otherwise may be
approved by the Planning Director based on the actual tenant and use of the Leasable
Space.
The Enhanced Walkway shall remain the private property
of Developer with members of the public having only a license to occupy and use the
Enhanced Walkway in a manner consistent with this Article 2. Nothing in this
Agreement shall give members of the public the right, without the prior written consent
of Developer, which consent may be conditioned or withheld by Developer in
Developer's sole discretion, to engage in any other activity on the Enhanced Walkway,
including, without limitation any of the following: (i) cooking, dispensing or preparing
food; (ii) selling any item or engaging in the solicitation of money, signatures, or other
goods or services; (iii) sleeping or staying overnight; (iv) using sound amplifying
equipment; or (v) engaging in any illegal, dangerous, intimidating or other activity that
Developer reasonably deems to be inconsistent with other uses in the Project or with the
use of the Enhanced Walkway_by other members of the public for the permitted purposes,
such as excessive noise or boisterous activity, bicycle or skateboard riding skating or
similar activity, being intoxicated, having offensive bodily hygiene, having shopping
carts or other wheeled conveyances (except for wheelchairs and baby strollers /carriages),
and Developer shall retain the right to cause persons engaging in such conduct to be
removed from the Project. If any such persons refuse to leave the Project, they maybe
deemed by Developer to be trespassing in accordance with applicable law concerning the
removal of trespassers from private property. Developer shall be entitled to establish and
post rules and regulations for use of the Enhanced Walkway-consistent with the
foregoing. Nothing in this Agreement or in the Project Plans shall be deemed to mean
that the Enhanced Walkway is a public park or is subject to legal requirements applicable
to a public park or other public space.
(b) Local Hiring. A local hiring program shall be implemented
within the Project in accordance with Exhibits "F -1" and "F -21'. In connection with the
local luring program, each time a new Hotel or Incidental Food Service opens within the
Project, Developer or the operator of any new Hotel or Incidental Food Service in the
Project shall conduct at least one on -site job fair targeted towards recruitment of local
resident candidates for on -site Hotel or Incidental Food Service jobs at least fourteen (14)
days before recruitment is opened up to general circulation for the initial hiring by the
new Hotel or Incidental Food Service. This on -site job fair shall be promoted locally in
the same manner as is specified in Exhibit "F -2 ". Furthermore, at least sixty (60) days
before recruitment is opened up to general circulation for the initial hiring by the new
Hotel or Incidental Food Service, Developer or the operator of any new Hotel or
Incidental Food Service in the Project shall prepare and submit to the City's Planning
Director for review and approval a written local hiring program consistent with the
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
14
obligations under this Agreement. The approved local hiring plan may be amended from
time to time thereafter, subject to the Planning Director's review and approval.
(c) Transportation Demand Management. Developer shall
adopt and implement the following Transportation Demand Management Plan ( "TDM
Plan "):
(i) AVR Standards. Developer shall achieve an
average vehicle ridership ( "AVR ") of 2.0 commencing from one year after the City's
issuance of a final certificate of occupancy for the Building; provided, however, that if
the Exposition Light Rail Line is not then fully operational, then the AVR target shall be
1.75 until the Fourth Street Station for the Exposition Light Rail Line is fully operational.
SMMC Chapter 9.16 shall govern how the AVR is calculated, except that
notwithstanding SMMC Section 9.16.070(d)(4)((B), a Zero Emission Vehicle ( "ZEV ")
shall be counted as a vehicle for purposes of calculating the AVR Developer will
determine its AVR through employee surveys for one consecutive week each calendar
year beginning the first year the hotel opens for business. Developer shall submit such
baseline survey to the City at the time of submittal of its annual compliance report for this
Agreement. The City shall monitor the TDM Plan performance as part of the City's
Periodic Review for the Project. If during any annual evaluation of the Project's
employee trip reduction plan, the AVR requirement has not been achieved for the Project,
then Developer shall propose modifications to the TDM Plan that Developer considers
likely to achieve the AVR requirement by the date of the next annual evaluation of the
Project's employee trip reduction plan. In addition, the City's Planning Director may
recommend feasible modifications to the TDM Plan, including, without limitation, that
Developer shall make available to all of its employees on a continuing basis a Metro EZ
public transit pass (or equivalent multi- agency monthly transit pass) at a subsidized rate
of no less than 50% of the cost of the transit pass. Failure to achieve the AVR standards
as provided in this Section will not constitute a Default within the meaning of the
Agreement so long as Developer is in compliance with the TDM Plan.
For purposes of determining AVR, the survey must
be conducted and AVR calculated in accordance with SMMC 9.16.070(d)(2)(1) except to
the extent modified by this Agreement below:
The survey must be taken over five consecutive days
during which the majority of employees are scheduled to
arrive at or leave the worksite. The days chosen cannot
contain a holiday and cannot occur during `Rideshare
Week' or other `event' weeks (i.e., Bicycle Week, Walk to
Work Week, Transit Week, etc.). This survey must have a
minimum response rate of seventy -five percent of
employees who report to or leave work between six a.m.
and ten a.m., inclusive, and seventy -five percent of
employees who report to or leave work between three p.m.
and seven p.m., inclusive. Employers that achieve a ninety
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
15
percent or better survey response rate for the a.m. or p.m.
window may count the `no- survey responses' as `other'
when calculating their AVR ...
The procedure for calculating AVR at a worksite shall be as
follows:
(A) The AVR calculation shall be based on data
obtained from an employee survey as defined in [SMMC
Section 9.16.070(d)(2)].
(B) AVR shall be calculated by dividing the
number of employees who report to or leave the worksite
by the number of vehicles arriving at or leaving the
worksite during the peak periods. All employees who
report to or leave the worksite that are not accounted for by
the employee survey shall be calculated as one employee
per vehicle arriving at or leaving the worksite. Employees
walking, bicycling, telecommuting, using public transit, or
on their day off under a recognized compressed work week
schedule shall be counted as employees arriving at or
leaving the worksite without vehicles. Motorcycles shall be
counted as vehicles.
(C) A child or student may be calculated in the
AVR as an additional passenger in the carpool /vanpool if
the child or student travels in the car /van to a worksite or
school /childcare facility for the majority (at least fifty -one
percent) of the total commute.
(D) If two or more employees from different
employers commute in the same vehicle, each employer
must account for a proportional share of the vehicle ' `
consistent with the number of employees that employer has
in the vehicle.
(E) Any employee dropped off at a worksite
shall count as arriving in a carpool only if the driver of the
carpool is continuing on to his/her worksite.
(F) Any employee telecommuting at home, off -
site, or at a telecommuting center for a full work day,
eliminating the trip to work or reducing the total travel
distance by at least fifty -one percent shall be calculated as
if the employee arrived at the worksite in no vehicle.
501 ColoradoDAgint.1001 LKLK
Final: November 26, 2013
10
Furthermore, the definition of AVR contained in SMMC Section 9.16.030, as written on
the Effective Date, shall govern how AVR is calculated. That definition reads as follows:
"The total number of employees who report to or leave the
worksite or another j ob- related activity during the peak
periods divided by the number of vehicles driven by these
employees over that five -day period. The AVR calculation
requires that the five -day period must represent the five
days during which the majority of employees are scheduled
to arrive at the worksite. The hours and days chosen must
be consecutive. The averaging period cannot contain a
holiday and shall represent a normal situation so that a
projection of the average vehicle ridership during the year
is obtained."
(ii) TDM Plan Program Elements. The specific
program elements of the TDM program for the Project are as follows:
2.7.2.1 Transportation Demand
ManagenzentAssociation. Developer, the Hotel operator and Building tenants shall be
required to participate in the establishment of a geographic -based Transportation Demand
Management Association (TMA) that may be defined by the City. TMAs provide
employees, businesses and visitors of an area with resources to increase the amount of
trips taken by transit, walking, bicycling, and ridesharing. If the City adopts a
requirement that a TMA be formed for this geographic area, Developer shall attend
organizational meetings and provide traffic demand data to the TMA. Developer shall
require in all leases and hotel operating agreements it executes as landlord for space
within the Project that building tenants be required to participate as members in the TMA
and that all subleases contain this same provision. The Developer and/or Hotel operator,
and all tenants of the Leasable Space, shall actively participate in the on -going activities
of any such TMA. Developer may elect to provide some or all of the services required by
this Section 2.7.2(c) through the TMA, in consultation with the City's Transportation
Demand Program manager.
2.7.2.2 Employee Transportation
Coordinator. An Employee Transportation Coordinator (ETC) shall be designated for
this Project by Developer. The ETC shall manage all aspects of this TDM program and
participate in the local TMA that may be established by the City, City- sponsored
workshops and information roundtables. The ETC shall be responsible for actively
encouraging and making available informational materials on options for alternative
transportation modes and opportunities. The ETC shall contact each employee at the
point of hire and at least once per year thereafter with an offer of personalized commute
assistance, including, but not limited to: (a) making available to each new employee a
Metro EZ public transit pass (or equivalent multi - agency monthly transit pass) valid
every day for the first three months of the new employee's employment (offered during
the first three months of employment only) to establish on -going ridership habits (see
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
17
subsection 2.7.2.15. 1), (b) providing guidance on routes to use, (c) providing information
concerning light rail transit, (d) providing information about carpool and vanpool
formation, (e) providing information concerning bus routes, and (f) facilitating a
discussion of any other transit- related benefits that may be available. The ETC shall also
promote non -drive -alone options to employees by providing onsite information, including
a newsletter, at least two events per year (e.g., Rideshare Week and Bike Week) and
occasional marketing activities such as contests and raffles. The ETC shall coordinate
with nearby employers to facilitate more effective carpool /vanpool matching, events and
promotions. In addition, transit fare media will be made available for purchase through
the ETC to employees and visitors during typical business hours. Employee
Transportation Coordinator services may be provided through the TMA contemplated in
subsection 2.7.2.1, above.
The ETC and/or other
designated/trained Hotel employee shall be available to assist Hotel guests with
(a) providing guidance on routes to use, (b) providing information related to light rail
transit, (c) providing information related to bus routes, and (d) facilitating a discussion of
any other transit - related benefits that may be available.
2.7.2.3 Transportation Information Center.
Developer shall ensure that the Hotel operator promotes and makes information available
on -site for hotel employees and hotel guests, and that commercial tenants of the Leasable
Space promote and provide their employees with information about local public transit
services (including bus lines, light rail lines, bus fare programs, ride share programs and
shuttles) and bicycle facilities (including routes, rental and sales locations, on -site bicycle
racks and showers.) Developer shall ensure that the Hotel operator offers (e.g., at check -
in) each hotel party with a map, schedule and fare information for utilizing the transit
system in Santa Monica and the surrounding area. Developer shall further ensure that the
Hotel operator also makes information available to hotel guests about transit and light rail
opportunities, carshare, rideshare, shopping locally, and bike and walking routes, by
posting such information (a) on the Hotel's website, (b) in a conspicuous place in the
lobby, (c) on a computer terminal or other form of electronic media in the Hotel lobby,
and (d) through either printed materials or electronic messages provided in each guest
room. Developer shall further ensure the Hotel operator also makes walking and biking _
maps available for employees and visitors, which shall include but not be limited to
information about convenient public transit stops, local services, and restaurants within
walking distance of the Project. Developer shall make information available to
employees and commercial tenants and employees of the hotel operator regarding local
rental housing agencies. Such transportation information shall be provided on -site,
regardless of whether also provided on a website.
2.7.2.4 Secure Bicycle Parking for
Employees /Hotel Guests. Developer shall provide secure long -term bicycle storage for
employees and for hotel guests in a secure convenient location approved by the Planning
Director. This shall have a capacity for a minimum of thirty -three (33) bicycles. For the
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
18
purpose of this requirement, secure bicycle parking shall mean bicycle lockers, an
attended cage, or a secure parking area.
2.7.2.5 Visitor Bicycle Parking. Developer
shall provide short -term bicycle parking for twelve (12) bicycles for guests of the Project.
This guest bike parking shall be located in various areas on the ground floor of the
Project and may be relocated from time to time as long as the parking remains on the
ground floor.
2.7.2.6 Bicycle Rentals by Hotel Guests.
The Hotel operator shall either provide or may contract with a local bicycle rental
business to make no less than ten (10) bicycles available on -site for rental by hotel guests,
whereas additional bicycles shall be provided as needed based on guest demand;
provided, however, that in the event any portion of the Leasable Space is rented to a
bicycle rental business, then the Hotel operator's obligation to also make bicycles
available to Hotel guests shall be deemed satisfied so long as the on -site bicycle rental
business continues to operate in the Leasable Space and offers no less than ten (10)
bicycles for rental. On -site bike rentals shall be promoted consistent with (a), (b) and (c)
of subsection 2.7.2.3. Additionally, Developer shall ensure the Hotel operator makes
information available to Hotel guests on bicycle rental locations within the Downtown.
2.7.2.7 Parking and Deliveries. Parking and
deliveries shall be managed as described in the Parking and Deliveries Management Plan
attached hereto as Exhibit " I ". This Parking and Deliveries Management Plan may be
amended from time to time as needed by the Planning Director, pursuant to specific
project conditions of approval in Exhibit "D ".
2.7.2.8 Carpool Program. Developer shall
provide preferential parking within the Project's parking garage for Project employees
who commute to work in employer- registered carpools. An employee who drives to work
with at least one other employee in the Project or adjacent facilities may register as a
carpool entitled to.preferential parking within the meaning of this provision.
2.7.2.9 Rideshare Matching Service.
Developer shall initiate a referral to all Project employees about a rideshare matching
service at least once per year to assist employees in finding carpool /vanpool opportunities
(i.e., through a service such as RideMatch (www.ridematch.info)) and /or require the
Hotel operator and Project tenants to participate in Metro's CommuteSmart.info website.
Rideshare matching services may be provided through the TMA contemplated in
subsection 2.7.2.1, above.
2.7.2.10 Parking Pricing. Hourly parking
pricing shall be market -based and adjusted periodically in an effort to ensure parking
availability for Hotel guests and employees, commercial tenants and their employees and
visitors during peak parking hours. If and when Developer makes any unused on -site
commercial parking available for daily, weekly, or monthly lease to third parties in the
501 ColoradoDAgmt.1001 I .KLK
Final: November 26, 2013
19
surrounding area in need of parking in accordance with Section 2.7.2(i), Developer shall
charge market rates.
2.7.2.11 Carshare Service. Developer shall,
in the subterranean parking garage, offer for rent parking to a car sharing service for a
minimum of two (2) cars and a maximum of five (5) cats, if such a service is available
from a third party provider on commercially reasonable terms including the rental rate to
be paid to Developer for use of the parking space(s). Required parking spaces may be
used for carshare vehicles. If utilized, Developer shall propose a signage system to notify
people of the location and availability of the carshare vehicles; the City Transportation
Manager shall consider such request and may authorize the posting of signs within the
public right -of -way to guide pedestrian and vehicular traffic to the carshare parking
location. The location of parking for any carshare vehicles shall be determined by the
Planning Director in consultation with the Developer, at such time as the carshare service
provider has been selected.
2.7.2.12 Rental Car Availability. Developer
shall ensure the Hotel operator makes information available to Hotel guests on rental car
agency locations within the City. Such car rental agency information shall be made
available to hotel guests upon request.
2.7.2.13 Unbundled Parking. Developer shall
lease its parking to commercial tenants separately from the commercial space. If
commercial tenants desire to lease parking, parking shall either be leased pursuant to a
separate agreement or shown as a separate line item in the lease. Such parking shall
typically be leased on a month -to -month basis at market rates established by Developer
from time -to -time. Developer may, subject to the Planning Director's approval,
reconfigure the parking spaces and operations from time -to -time in order to facilitate
unbundling of parking. Developer shall require in all tenant leases it executes as landlord
that tenants not pay for or reimburse their employees for parking within the Project,
provided, however, that Developer shall have no obligation to actively monitor for
violations absent reasonable cause for doing so.
2.7.2.14 TDMPlmi for Lessees. Developer
shall require to any leases "it executes as landlord (or management, operating or similar
agreement) that the Hotel and any Leasable Space operators must implement the TDM
Plan with respect to the areas of the Property leased by Developer to the Hotel and any
Leasable Space operators, including the annual survey described in Section 2.7.2(c)(i)
above and the requirement to participate in the TMA in Section 2.7.2(c)(ii)(2.7.2.1)
above. Developer understands, acknowledges and agrees that nothing herein shall be
deemed to alleviate, modify, reduce, eliminate, terminate, or alter Developer's obligation
to meet the AVR standards required in this Agreement for the entire Project.
501 Coloradol)Agmt.10011.KLK
Final: November 26, 2013
2.7.2.15 Transit Subsidies_for Hotel /Leasable
Space Operator Employees.
2.7.2.15.1 Developer Hotel
Employees. Developer shall make available to all of its Hotel employees a Metro EZ
public transit pass (or equivalent multi- agency monthly transit pass) valid every day for
the first three months of the new employee's employment (offered during the first three
months of employment only) to establish on -going ridership habits.
2.7.2.15.2 Leasable Space
Operator Employees. All Leasable Space Operators (if separate from the Developer's
hotel operations) employing fifty (50) or more employees shall make available to their
respective employees on an on -going basis a 50% monthly subsidy for a Metro EZ public
transit pass (or equivalent multi- agency monthly transit pass). All Leasable Space
Operators (if operated by a third party separate from the Developer's Hotel operations)
employing less than fifty (50) employees shall make available to their respective
employees on an on -going basis a Metro EZ public transit pass (or equivalent multi -
agency monthly transit pass) valid every day for the first three (3) months of employment
(offered during the first three (3) months of employment only) to establish on -going
ridership habits.
2.7.2.16 On -Site Shon,er and Locker
Facilities. A minimum of two (2) showers and a locker facility shall be provided for
Project employees who bicycle or use another active means, powered by human
propulsion, of getting to work or who exercise during the work day.
2.7.2.17 Guaranteed Return Trip. Developer
shall require in all leases it executes as landlord for space within the Project that tenants
provide employees who vanpool or cut-pool with a return trip to the point of commute
origin at no additional cost to the employee, when a Personal Emergency Situation, such
as personal or family illness or injury, requires it. The employee guaranteed return trip
--maybe. provided through.the TMA contemplated in Section 2.7.2(c)(ii)(2.7.2.1) above.
The ETC may register with Metro's Guaranteed Ride Home program for such commuters
which shall be deemed satisfaction in full of this obligation.
(iii) Changes to TDMProgram. Subject to approval by
the City's Planning Director, the Developer may modify this TDM program provided the
TDM program, as modified, can be demonstrated as equal or superior in its effectiveness
at mitigating the traffic - generating effects of this Project. Any of the modifications to the
TDM program proposed by Developer (or proposed by the Planning Director and agreed
to by the Developer) to help the Project achieve the applicable AVR standard shall be
subject to the reasonable approval by the City's Planning Director as a Minor
Modification.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
21
(iv) Annual Report. As part of the annual compliance
review described in Article 10 below, Developer shall report to the City on the status of
the TDM program implementation, usage and results.
(v) New TDM Ordinance. If the City adopts a new
ordinance of general application that updates or replaces Chapter 9.16 of the SMMC and
that applies to the geographic area in which the Property is located ( "New TDM
Ordinance "), then, subject to the Planning Director's approval in his or her sole and
absolute discretion, Developer may elect to comply with the New TDM Ordinance in lieu
of complying with the TDM Plan outlined in this Agreement.
(d) Sustainable Design Features. Developer shall design the
Building so that, at a minimum, the Building shall achieve LEEDS "Gold" certification
by the Green Building Certification Institute under the LEEDS Rating System (the
"Sustainable Design Status "). Developer shall confirm to the City that the design for
the Building has achieved the Sustainable Design Status in accordance with the following
requirements:
(i) Prior to the submission of plans and documents to
the City for Architectural Review Board review for the Building, the Developer shall
submit for review by the City a preliminary checklist of anticipated LEEDS credits along
with a narrative describing the project's sustainable features to demonstrate that the
Building is likely to achieve the Sustainable Design Status.
(ii) Prior to submittal of the plan check application for
the Building, Developer shall:
(1) Submit for review by the City an updated
checklist of anticipated LEEDS credits along with a narrative describing the project's
sustainable features to demonstrate that the Building is likely to achieve the Sustainable
Design Status.
(2) Retain the services of a third party,
independent individual designated to organize, lead, and review the completion of the
process of verifying and documenting that a building and all of its systems and
assemblies are planned, designed, installed, and tested to meet the Building's
requirements (the "Commissioning Authority ").
(3) Submit a Commissioning Plan which
includes the elements specified in California Code of Regulations Title 24, Part 11,
Section 5.410.2.3.
(iii) Prior to issuance of a final Certificate of Occupancy
for the Building (but not a prerequisite to issuance of a temporary Certificate of
Occupancy to allow the Building to open for business), the City shall verify (which
verification shall not be unreasonably withheld, conditioned or delayed) that the
Developer has submitted an application to the Green Building Certification Institute for
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
22
LEED® "Gold" certification. Provided such application has been received by the Green
Building Certification Institute and is being processed, the Final Certificate of Occupancy
for the Building shall not be withheld or delayed based on the failure to receive
certification of the Sustainable Design Status.
(iv) After the City's issuance of a final Certificate of
Occupancy for the Building and after Developer has opened the Building or any portions
thereof to the public, Developer shall be obligated to diligently pursue a determination
from the Green Building Certification Institute on such application.
(v) If the Building is ultimately denied certification for
the Sustainable Design Status by the Green Building Certification Institute and the
Developer has exhausted all administrative remedies and appeals of that denial, then the
Developer shall be subject to a fine in the amount of four dollars per square foot of Floor
Area. This fine may be waived if the City at its sole discretion determines that the
Developer made a good faith effort to achieve and meet the intent of the Sustainable
Design Status. Alternatively, the fine may be waived if the Developer commits to
pursuing all necessary steps for the Building to achieve certification to the "Gold" level
under the LEED ® Existing Buildings Operations and Maintenance (LEED EBOM)
rating system no later than 3 years after the Certificate of Occupancy was issued for the
Project. If the Developer fails to obtain this certification within this time period, the fine
shall be reimposed and immediately payable to City.
(e) Renewable Energy. In order to maximize renewable
energy opportunities for this Project, solar energy systems, including photovoltaic panels,
solar thermal/hot water systems, and/or other types of commercially available solar
energy systems, shall be installed on the Building's roof in areas appropriate for solar
placement to achieve reasonable maximum coverage of the roof area, as confirmed by the
City's Planning Director working in consultation with the City's Office of Sustainability.
Areas of the roof available and appropriate for solar systems placement shall exclude any
areas necessary or required for rooftop equipment, and any roof areas necessary for
building or equipment maintenance, Fire Department access, and/or other applicable
code, legally- mandated or otherwise necessary access and/or clearances. The type or
types of such renewable energy systems to be installed on the Building's roof shall be as
recommended by a professional engineer trained in solar system design and installation
on similar types of commercial buildings in downtown urban environments. The
professional engineer shall consult with the City's Office of Sustainability during the
process of evaluating and selecting the type or types of renewable energy systems for this
Building. Any such solar system installations shall not be counted in the determination
of the maximum height of the Building.
(f) Water Conservation. Prior to issuance of building permit
for the Project, the Developer shall demonstrate that the Project shall achieve a minimum
30% potable water reduction of the hotel's total water use as reasonably determined by
the City's Office of Sustainability and the Environment. During the plan check process,
Developer shall coordinate with the City's Office of Sustainability and the Environment
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
23
to evaluate appropriate measures to be implemented in achieving the requirement,
including but not limited to, gallons per flush for toilets, gallons per minute for
showerheads, water factor for clothes washers, commercial dishwasher requirements, and
cooling tower requirements.
(g) Funding For Community Benefits. Developer shall provide
a monetary contribution for the following community benefits:
i. Esplanade Contribution. Developer shall coordinate
with the City's Public Works Department to design and construct the Enhanced Walkway
consistent with the Esplanade design. Furthermore, as a condition to the City's issuance
of the building permit for the Project, Developer shall pay to the City the sum of two
hundred and ninety -four thousand dollars ($294,000) to be used by the City for the
Colorado Esplanade public improvement project.
ii. Transportation Infrastructure Contribution.
Developer shall pay to the City, prior to obtaining a building permit for the Project, the
sum of sixty -nine thousand, three hundred and forty -three dollars ($69,343) to be used by
the City for transportation infrastructure improvements.
iii. Parks and Recreation/Open Space Contribution.
Developer shall pay to the City, prior to obtaining a building permit for the Project, the
sum of one hundred and ninety -six thousand, six hundred fifty -seven dollars ($196,657)
to be used by the City for public parks and recreation improvements.
iv. Historic Preservation Contribution. Prior to
obtaining a building permit for the Project, Developer shall create a separate, interest -
bearing trust fund and make a contribution in the amount of twenty -five thousand dollars
($25,000). The monies available in this fund shall be used exclusively for historic
preservation programs for the Downtown area in the City. These monies shall be applied
for and distributed in accordance with a process, to be established by the Planning
Director, whereby those entities that are exclusively devoted to historic preservation may
make an application to receive distribution of some or all of the trust funds.
V. HTA Contribution. Developer shall contribute to
the Hospitality Training Academy (bqp: / /www.uniteherel l.or /g hospitality-training-
academy), or a functionally equivalent organization as may be determined by the City
Manager, the sum of fifty thousand dollars ($50,000) to be used specifically for job
training and recruitment opportunities for disadvantaged youths targeted from the Pico .
Neighborhood. "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. The first $25,000 shall be paid upon commencement of the Project's
construction; the second $25,000 shall be paid not later than ninety (90) days prior to the
Hotel's opening. The Developer shall notify the City immediately after'first and second
payments are provided.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
24
(h) EV Conduit. Developer shall in the subterranean parking
garage provide both: (a) an electric vehicle charging station providing a 208/240 V.40
amp, grounded AC outlet in one parking space and (b) panel capacity and conduit stubs
for future installation of electrical outlets designed to allow the simultaneous charging of
a minimum number of 208/240 V 40amp, grounded AC outlets equal to at least 7 more of
the parking spaces. Until the Planning Director makes a determination, based on
demonstrated demand by drivers of such vehicles at the Project, that some or all of the 8
parking spaces be restricted for electric or other alternative fueled vehicle use, the spaces
may be utilized without regard to vehicle type at the Developer's sole and absolute
discretion.
(i) Shared Parking. In furtherance of the LUCE's shared
parking policies and consistent with providing sufficient on -site parking for the Project's
users (whether with or without implementation of stacked parking) , Developer may
make any unused on -site parking available for monthly lease at market rates to third
parties in the surrounding area in need of parking, including area residents, businesses,
and employees, ( "Shared Parking ") if (i) Developer obtains a written report by a traffic
and parking engineering firm that demonstrates that the proposed additional parking
spaces to be leased to third parties are not needed to meet the Project's peak parking
demand, (ii) Developer submits such report to the City for review and approval, and
(iii) the Planning Director approves the additional parking spaces for Shared Parking.
Alternatively, Developer may make parking spaces available for Shared Parking in
accordance with any SMMC procedure authorizing shared parking then in effect. In
order to facilitate annual compliance monitoring of shared parking and trip reduction
targets, Developer shall install ticketing equipment for on -site parking that is able to
discern between on -site and off -site users in the event Developer seeks and obtains
approval for Shared Parking.
0) Internship Program. On an ongoing basis, the Hotel shall
make at least one paid (unless taken for school credit) internship available per school
session to a student who is a Santa Monica resident between ages 18 -24 and /or attends a
high school in Santa Monica or Santa Monica College. The Hotel will inform the schools
and the Hospitality Training Academy that such internship shall be targeted towards
"opportunity youths" within Santa Monica, as may be .defined from time to time by the -
City Manager for purposes of implementing this internship program. Subject to the
requirements specified in this subsection (k), the Hotel retains full discretion to select the
student for the internship.
(k) "I Am Santa Monica" Workshop. Developer _shall ensure
that the Hotel operator and commercial tenants of the Leasable Space send
representatives of their businesses to the "I Am Santa Monica" Workshop
(http: / /www.santamonica.com/iam/) or any analogous program for businesses and their
employees.
(1) Community Meeting Space. To the extent such meeting
space is provided at the Hotel and subject to availability, Developer shall make the
50lColoradoDAgmt.1001 LKLK
Final: November 26, 2013
25
Hotel's meeting rooms available to non - profits or other community organizations on a
reduced cost basis at least twelve (12) times per year for up to five hours per meeting.
The reduced cost shall be based on fees that are required for similar City -owned facilities.
Notwithstanding the foregoing, standard set up fees and standard food and beverage rates
will apply. Prior to issuance of the Hotel's final Certificate of Occupancy, but not as a
requirement to open the Hotel for business, written rental facility guidelines as to
community availability of the meeting room shall be prepared by the Hotel operator and
submitted to the Planning Director for review and approval. Such rental facility
guidelines regarding community availability may be amended from time to time
thereafter, subject to the Planning Director's review and approval.
(m) Artistic Exhibition Program. Developer and/or the Hotel
Operator shall develop and implement an Artistic Exhibition Program for the purpose of
showcasing different forms of all in periodic exhibitions at the Hotel, including art
sourced from professional galleries, local artists, and Santa Monica students. The
purpose of such exhibitions shall be to establish and build a connection between the
Hotel, visitors /guests and the local Santa Monica artistic community. Said Artistic
Exhibition Program shall endeavor to host events at the Hotel a minimum of twice each
year and showcase various forms of art (including but not limited to paintings, drawings,
sculptures, photography, digital media, film, music, literature, theater, dance, performing
arts and/or other recognized forms of art).
2.8 Parking. The number of marked parking spaces (including all standard -
sized, compact and handicapped spaces) provided in the Project shall be at least seventy -
eight (78), and may include up to forty percent (40 %) compact parking spaces. This
Agreement and the Project Plans set forth the exclusive off - street parking requirements
for the Project and supersede all other minimum space parking requirements under the
Existing Regulations, including without limitation Part 9.04.10.08 of the Zoning
Ordinance. In addition to the marked parking spaces, the opportunity for supplementing
the parking capacity of the garage exists by parking vehicles in the aisles if the parking
garage is staffed with attendant or valet parking. Provided that and to the extent that the
Developer supplies the quantity of parking required under this Agreement meaning a
minimum of eighty -six (86) parking spaces through stacked parking consistent with the
peak parking demand for the site, Developer shall have.no_ obligation .to pay any parking
in -lieu fees to the City.
2.9 Design.
(a) Setbacks. Developer 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, and in no event in excess of 84 feet when calculated in
accordance with the Zoning Ordinance as modified by Section 1.4 of this Agreement. In
501 ColoradoDAgmt. 100 1 LYLK
Final: November 26, 2013
the event that any inconsistencies exist between the Zoning Ordinance and the Building
Height allowed by this Agreement, then the Building Height allowed by this Agreement
shall prevail.
(c) Stepbacks. Developer shall maintain the stepbacks for the Project
as set forth on the Project Plans. In the event that any inconsistencies exist between the
Zoning Ordinance and the stepbacks required by this Agreement, then the stepbacks
established by this Agreement.shall prevail.
(d) Permitted Projections. Projections shall be permitted as reflected
on the Project Plans. In the event that any inconsistencies exist between the Zoning
Ordinance and the projections permitted by this Agreement, then the projections
permitted by this Agreement shall prevail.
(e) Signage. The location, size, materials, and color of any signage
shall be reviewed by the ARB (or the Planning Commission on appeal) in accordance
with the procedures set forth in Section 6.1 of this Agreement. All signs on the Property
shall be subject to Chapter 9.52 of the SMMC (Santa Monica Sign Code) in effect as of
the Effective Date, a copy of which is contained within Exhibit "E ". Directional signs for
vehicles shall be located at approaches to driveways as required by the City's Strategic
Transportation Planning Division.
Project Plans.
(f) Balconies. Balconies shall be provided in accordance with the
ARTICLE 3
CONSTRUCTION
3.1 Construction Mitigation Plan. During the construction phase of the
Project, Developer shall comply with the Construction Mitigation Plan attached as
Exhibit "K" hereto.
3.2 Construction Hours. Developer shall be permitted to perform construction
between the hours of 8 :00 a.m. to 6:00 p.m: Mond- ay-t-litough 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 (3 0) decibels beyond the Property line may also be performed
between the hours of 7:00 a.m. to 8:00 a.m. and 6:00 p.m. to 7:00 p.m. Monday through
Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding
the foregoing, pursuant to SMMC Section 4.12.110(e), Developer has the right to seek a
permit from the City authorizing construction activity during the times otherwise
prohibited by this Section. The Parties acknowledge and agree that, among other things,
afterhours construction permits can be granted for concrete pours.
3.3 Outside Building Permit Issuance Date. If Developer has not been issued
a building permit for the Project by the "Outside Building Permit Issuance Date" (defined
below), then on the day after the Outside Building Permit Issuance Date, without any
501ColoradoDAgmt.10017 .KLK
Final: November 26, 2013
27
further action by either Party, this Agreement shall automatically terminate and be of no
further force or effect. For purposes of clarity, if Developer has not been issued a
building permit for the Project by the Outside Building Permit Issuance Date, the City
shall not be required to pursue its remedies under Section 11.4 of this Agreement, and
this Agreement shall, instead, automatically terminate. "Outside Building Permit
Issuance Date" means the date that is the last day of the thirty -sixth (36th) full calendar
month after the Effective Date; provided that the Outside Building Permit Issuance Date
maybe 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 two (2) months of the submittal by Developer to the ARB of the Project
design for any reason other than the ARB's proper exercise of discretion to approve or
disapprove the Project design, then the Outside Building Permit Issuance Date shall be
extended one month for each additional month greater than two that the final ARB
approval is delayed. At any time after the last day of the thirty -sixth (36th) full calendar
month after the Effective Date (the "Extension Notice Date "), Developer may deliver
written notice to the Planning Director, requesting an extension of the Outside Building
Permit Issuance Date for an additional twelve (12) months. The Outside Building Permit
Issuance Date may be administratively extended not more than two (2) times for an
additional twelve (12) months per extension. The Planning Director may grant such
extension if Developer can demonstrate substantial progress has been made towards
obtaining a building permit and show reasonable cause why Developer will not be able to
obtain the building permit for the Project by the initial Outside Building Permit Issuance
Date and can demonstrate that: (a) the condition of the Property will not adversely affect
public health or safety and (b) the continued delay will not create any unreasonable visual
or physical detriment to the neighborhood.
3.4 Construction Period. Construction of the Project shall be subject to the
provisions of SMMC Section 8.08.070.
3.5 Tiebacks. Excepting any utility conflicts (which Developer may elect to
remedy), Developer shall be allowed to install tiebacks, subject to standard terms and
conditions as determined by the City's Director of Public Works or designee, for Fifth
Street, Colorado Avenue and Fifth Court.- Developer shall compensate the City for such
tiebacks in accordance with -the City.'.' -.s tieback ,- fees.then in effect.. All tiebacks-on City
property shall be de- tensioned and cut down five feet below grade prior to issuance of
Certificate of Occupancy.
3.6 Construction Staging. Developer may use the Fifth Street frontage and a
portion of Fifth Court alley for construction staging based on City's customary costs and
procedures or permits then in effect. Developer may also use the Colorado Avenue
frontage for construction staging provided that such usage, including any reasonable and
feasible mitigation measures, does not materially interfere with the construction of the
Exposition Light Rail.
3.7 Damage or Destruction. If the Project, or any part thereof, is damaged or
destroyed during the term of this Agreement, Developer shall be entitled to reconstruct
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
PM
the Project in accordance with this Agreement if: (a) Developer obtains a building permit
for this reconstruction prior to the expiration of this Agreement and (b) the Project is
found to be consistent with the City's General Plan, and any applicable Specific Plan.
3.8 Demolition of Existing Improvements. Per the EIR and because of the
date of their construction in 1983, the City acknowledges and agrees that demolition of
the existing building(s) located on the Property shall be exempt from any Landmarks
Commission review up through the Outside Building Permit Issuance Date, including any
extensions thereof.
ARTICLE 4
PROJECT FEES, EXACTIONS, MITIGATION MEASURES
AND CONDITIONS
4.1 Fees, Exactions, Mitigation Measures and Conditions. Except as
expressly set forth in Section 2.7.2 (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, mitigation measures,
conditions, and standards of construction set forth in this Agreement, including Exhibits
"C" "D" and "I" attached hereto, and no others. If any of the mitigation measures or
conditions set forth on Exhibit "D" is satisfied by others, Developer shall be deemed to
have satisfied such measures or conditions.
4.2 Conditions on Modifications. The City may impose fees, exactions,
mitigation measures and conditions in connection with its approval of Minor or Major
Modifications, provided that all fees, exactions, mitigation measures and conditions shall
be in accordance with any applicable law.
43 Implementation of Mitigation Measures and Conditions of Approval.
4.3.1 Compliance with Mitigation Measures and Conditions of
Approval. Developer shall be responsible for implementing the mitigation measures set
forth in Section A of Exhibit "D" attached hereto, and Developer shall be responsible to
adhere to the eondittons o17 a N val set forth in Section B of iExhibit' "D "'in accordance
with the timelines established in Exhibit "D ".
4.3.2 Survival of Mitigation Measures and Conditions of Approval. If
Developer proceeds with the construction of the Project, except as otherwise expressly
limited in this Agreement, the obligations and requirements imposed by the mitigation
measures and conditions of approval set forth in the attached Exhibit "D" shall survive
the expiration of the Term of this Agreement and shall remain binding on Developer, its
successors and assigns, and shall continue in effect for the life of the Project. Notice of
the mitigation measures and conditions of approval shall be recorded by the City
separately and concurrently with this Agreement.
501ColoradoDAgmt.1001 LYLK
Final: November 26, 2013
29
ARTICLE 5
EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS
5.1 Development Standards for the Property; Existing Regulations. The
following development standards and restrictions set forth in this Section 5.1 govern the
use and development of the Project and shall constitute the Existing Regulations, except
as otherwise expressly required by this Agreement.
5. 1.1 Defined Terms. The following terms shall have the meanings set
forth below:
(a) "Existing Regulations" collectively means all of the
following which are in force and effect as of the Effective Date: (i) the General Plan
(including, without limitation, the LUCE); (ii) the 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,
apecral assessment or tax.
5.1.2 Existing Regulations Govern the Project. Except as provided in
Section 5.2, development of the Buildings and improvements that will comprise the
Project, including without limitation, the development standards for the demolition,
grading,, design, development, construction, occupancy or use of such Buildings and
improvements, and any exactions therefor, shall be governed by the Existing Regulations.
The City agrees that this Agreement is consistent with the General Plan, including the
LUCE, as more fully described in the Recitals. Any provisions of the Existing
Regulations inconsistent with the provisions of this Agreement, to the extent of such
inconsistencies and not further, are hereby deemed modified to that extent necessary to
effectuate the provisions of this Agreement. The Project shall be exempt from: (a) all
Discretionary Approvals or review by the City or any agency or body thereof, other than
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
30
the matters of architectural review by the ARB as specified in Section 6.1 and review of
modifications to the Project as expressly set forth in Sections 2.4.2 and 2.4.3; (b) the
application of any subsequent local development or building moratoria, development or
building rationing systems or other restrictions on development which would adversely
affect the rate, timing, or phasing of construction of the Project, and (c) Subsequent Code
Changes which are inconsistent with this Agreement.
5.2 Permitted Subsequent Code Changes.
5.2.1 Applicable Subsequent Code Changes. Notwithstanding the terms
of Section 5. 1, this Agreement shall not prevent the City from applying to the Project the
following Subsequent Code Changes set forth below in this Section 5.2.1.
(a) Processing fees and charges imposed by the City to cover
the estimated actual costs to City of processing applications for development approvals
including: (i) all application, permit, and processing fees incurred for the processing of
this Agreement, any administrative approval of a Minor Modification, or any amendment
of this Agreement in connection with a Major Modification; (ii) all building plan check
and building inspection fees for work on the Property in effect at the time an application
for a grading permit or building permit is applied for; and (iii) the public works plan
check fee and public works inspection fee for public improvements constructed and
installed by Developer and (iv) fees for monitoring compliance with any development
approvals, or any environmental impact mitigation measures; provided that such fees and
charges are uniformly imposed by the City at similar stages of project development on all
similar applications and for all similar monitoring.
(b) General or special taxes, including, but not limited to,
property taxes, sales taxes, parcel taxes, transient occupancy taxes, business taxes, which
may be applied to the Property or to businesses occupying the Property; provided that (i)
the tax is of general applicability City -wide and does not burden the Property
disproportionately to other similar developments within the City; and (ii) the tax is not a
- levy, assessment, fee or tax imposed for the purpose of funding public or private
improvements on other property located within the Downtown Core (as defined in the
City's General Plan as of the Effective Date).
(c) Procedural regulations relating to hearing bodies, petitions,
applications, notices, documentation of findings, records, manner in which hearings are
conducted, reports, recommendations, initiation of appeals, and any other matters of
procedure; provided such regulations are uniformly imposed by the City on all matters,
do not result in any unreasonable decision - making delays and do not affect the
substantive findings by the City in approving this Agreement or as otherwise established
in this Agreement.
(d) Regulations governing construction standards and
specifications which are of general application that establish standards for the
construction and installation of structures and associated improvements, including,
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
31
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 other City regulations to which Developer has
consented in writing.
(f) Collection of such fees or exactions as are imposed and set
by governmental entities not controlled by City but which are required to be collected by
City.
(g) Regulations which do not impair the rights and approvals
granted to Developer under this Agreement. For the purposes of this Section 5.2.1(g),
regulations which impair Developer's rights or approvals include, but are not limited to,
regulations which (i) materially increase the cost of the Project (except as provided in
Section 5.2.1(a), (b), and (d) above), or (ii) which would materially delay development of
the Project or that would cause a material change in the uses of the Project as provided in
this Agreement.
5.2.2 New Rules and Regulations. This Agreement shall not be
construed to prevent the City from applying new rules, regulations and policies in those
circumstances specified in Government Code Section 65866.
5.2.3 State or Federal Laws. In the event that state or federal laws or
regulations, enacted after the Effective Date, prevent or preclude compliance with one or
more of the provisions of this Agreement, such provisions of this Agreement shall be
modified or suspended as may be necessary to comply with such state or federal laws or
regulations; provided that this Agreement shall remain in full force and effect to the
extent it is not inconsistent with such laws or regulations and to the extent such laws or
regulations do not render such remaining provisions impractical to enforce.
5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City
and Developer shall use reasonable efforts to identify, assemble and copy three identical
sets of the Existing Regulations, to be retained by the City and Developer, so that if it
becomes necessary in the future to refer to any of the Existing Regulations, there will be
a common set of the Existing Regulations available to all Parties.
5.4 Conflicting Enactments. Except as provided in Section 5.2 above, any
Subsequent Code Change which would conflict in any way with or be more restrictive
than the Existing Regulations shall not be applied by the City to any part of the Property.
Developer may, in its sole discretion, give the City written notice of its election to have
any Subsequent Code Change applied to such portion of the Property as it may have an
interest in, in which case such Subsequent Code Change shall be deemed to be an
Existing Regulation insofar as that portion of the Property is concerned. If there is any
50l ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
32
conflict or inconsistency between the terms and conditions of this Agreement and the
Existing Regulations, the terms and conditions of this Agreement shall control
5.5 Timing of Development. The California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in
that case to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over the parties' agreement. It is the
intent of Developer and the City to cure that deficiency by expressly acknowledging and
providing that any Subsequent Code Change that purports to limit over time the rate or
timing of development or to alter the sequencing of development phases (whether
adopted or imposed by the City Council or through the initiative or referendum process)
shall not apply to the Property or the Project and shall not prevail over this Agreement.
In particular, but without limiting any of the foregoing, no numerical restriction shall be
placed by the City on the amount of total square feet or the number of buildings,
structures, residential units that can be built each year on the Property except as expressly
provided in this Agreement.
ARTICLE 6
ARCHITECTURAL REVIEW BOARD
6.1 Architectural Review Board Approval. The Project shall be subject to
review and approval or conditional approval by the ARB in accordance with design
review procedures in effect under the Existing Regulations. Consistent with Existing
Regulations, the ARB cannot require modifications to the building design which negates
the fundamental development standards established by this Agreement. For example, the
ARB cannot require reduction in the overall height of the building, reduction in the
number of stories in the building, reduction in the number of hotel guest rooms, or
reduction in Floor Area greater than two percent (2 %). Decisions of the ARB shall be
appealable to the Planning Commission in accordance with the Existing Regulations.
6.2 Expiration of ARB Approval. Notwithstanding any provision of the
Existing Regulations, no ARB approval granted with respect to the Project shall expire
_ prior to expiration of the Outside Building Permit Issuance Date, including any
extensions thereof.
ARTICLE 7
CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
7.1.1 "Technical City Permits" means any Ministerial Approvals,
consents or permits from the City or any office, board, commission, department, division
or agency of the City, which are necessary for the actual construction of the Project or
501 ColmadoDAgmt.l001 LKLK
Final: November 26, 2013
33
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) tieback 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 Developer for any Technical City Permits. _-
7.2 Diligent Action by City.
7.2.1 Upon satisfaction of the conditions set forth in Section 7.3, the
City shall accept the Technical Permit Applications filed by Developer with the City and
shall diligently proceed to process such Technical Permit Applications to completion.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the
City shall diligently issue the Technical City Permits which are the subject of the
Technical Permit Applications.
7.3 Conditions for Diligent Action by the City.
7.3.1 Acceptance and Processing of Technical Permit Applications. The
obligation of the City to accept and diligently process the Technical Permit Applications
which are filed by Developer, and then issue the Technical City Permits, is subject to the
satisfaction of the following conditions:
(a) Developer shall have completed and filed any such
Technical Permit Applications which are required under the administrative procedures
and policies of the City which are in effect on the date when the Technical Permit
Application is filed; provided that such procedures and policies are uniformly in force
and effect throughout the City;
(b) Developer shall have paid all processing and permit fees
established by the City in connection with.the filing and processing of any Technical _
- Permit Application which are in effect on the date when the Technical Permit Application
is filed; provided that such fees are uniformly in force and effect throughout the City; and
(c) If required for the particular Technical Permit Application,
Developer shall have obtained the approval of the ARB referred to in Section 6. 1.1
above.
7.3.2 Issuance of a Technical City Permit. The obligation of the City to.
issue a Technical City Permit which is the subject of a Technical Permit Application filed
by Developer is subject to the satisfaction of the following conditions (and only such
conditions and no others):
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
34
(a) Developer shall have complied with all of its obligations
under this Agreement which are required to be performed prior to or concurrent with the
issuance of the Technical City Permits for the proposed Buildings;
(b) Developer shall have received any permits or approvals
from other governmental agencies which are required by law to be issued prior to or
concurrent with the issuance of the Technical City Permits for the proposed Buildings;
(c) The proposed Buildings conform to the development
standards for such Buildings established in this Agreement. In the event that a proposed
Building is not in conformance with the development standards, Developer shall have the
right to seek any relief from such standards under the procedures then available in the
City; and
(d) The proposed Buildings conform to the Administrative and
Technical Construction Codes of the City (Article VIII, Chapter I of the Santa Monica
Municipal Code) (the "Technical Codes ") in effect on the date that the Technical Permit
Application is filed.
7.3.3 New Technical Requirements. From time to time, the City's
Technical Codes are amended to meet new technical requirements related to techniques
of building and construction. If the sole means of achieving compliance for the Project
with such revisions to the Technical Codes made after the Effective Date ( "New
Technical Requirements ") would require an increase from the allowable Building
Height established in this Agreement for the Project, then the Planning Director is hereby
authorized to grant Developer limited relief from the allowable Building Height without
amending this Agreement if the requested relief is in compliance with the City's General
Plan. Any such approval shall be granted only after the Planning Director's receipt of a
written request for such relief fi•om Developer. Developer is required to supply the
Planning Director with written documentation of the fact that compliance with the New
Technical Requirements cannot be achieved by some other method. Any such relief shall
only be granted to the extent necessary in the Planning Director's determination for
Developer to comply with the New Technical Requirements.
7.4 Duration of Technical City`P'erimifs. The duratio' a''Technlcal City
Permits issued by the City, and any extensions of the time period during which such
Technical City Permits remain valid, shall be established in accordance with the
Technical Codes in effect at the time that the Technical City Permits are issued. Subject
to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall
not preclude or impair Developer from subsequently filing another Technical Permit
Application for the same matter during the Term of this Agreement, which shall be
processed by the City in accordance with the provisions of this ARTICLE 7.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains
building permits for the Project and, at any time after the Outside Construction Start
Date, such building permits expire or are revoked pursuant to the applicable terms of the
SMMC (as the same may be amended from time to time), then Developer may not
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
35
subsequently apply for new building permits for the Project without first obtaining the
prior written consent of the Planning Director, which may be granted or withheld in the
Planning Director's sole discretion.
ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. Subject to the
notice and hearing requirements of the applicable Development Agreement Statutes, this
Agreement may be modified or amended from time to time only with the written consent
of Developer and the City or their successors and assigns in accordance with the
provisions of the SMMC and Section 65868 of the California Government Code.
ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the
Parties hereunder shall be effective as of the date upon which the ordinance approving
this Agreement becomes effective (the "Effective Date "). The Parties shall execute this
Agreement within ten (10) working days of the Effective Date.
9.2 Term.
9.2.1 Term of Agreement. The term of this Agreement shall commence
on the Effective Date and shall end on October 31, 2035 (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 Much (each, a "Periodic Review "), in
accordance with this Article 10 in order to determine whether or not Developer is out -of-
compliance with any specific term or provision of this Agreement.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
36
10.2 Evidence of Good Faith Compliance. On or before October 1st of each
year, Developer shall deliver to the City a written report demonstrating that Developer
has been in good faith compliance with this Agreement during the twelve (12) month
period prior to the anniversary of the Effective Date. The written report shall be provided
in the form established by the City. For purposes of this Agreement, the phrase "good
faith compliance" shall mean the following: (a) compliance by Developer with the
requirements of the Existing Regulations, except as otherwise modified by this
Agreement; and (b) compliance by Developer with the terms and conditions of this
Agreement, subject to the existence of any specified Excusable Delays (as defined in
Section 15.8 below) which prevented or delayed the timely performance by Developer of
any of its obligations under this Agreement.
10.3 Information to be Provided to Developer. Prior to any public hearing
concerning the Periodic Review of this Agreement, the City shall deliver to both
Developer and Owner a copy of all staff reports prepared in connection with a Periodic
Review, written comments from the public and, to the extent practical, all related exhibits
concerning such Periodic Review. If the City delivers to Developer a Notice of Breach
pursuant to Section 11.1 below, the City shall concurrently deliver to Developer and
Owner copies of all staff reports prepared in connection with such Notice of Breach, all
written comments from the public, and all related exhibits concerning such Notice of
Breach.
10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City
reasonably concludes on the basis of substantial evidence that Developer has not
demonstrated that it is in good faith compliance with this Agreement, then the City may
issue and deliver to Developer and Owner a written Notice of Breach pursuant to Section
11.1 below, and Developer and Owner shall have the opportunity to cure the default
identified in the Notice of Breach during the cure periods and in the manner provided by
Section 11.2 and Section 11.3, as applicable.
10.5 Failure of Periodic- Review. The City's failure to review at least annually
compliance by Developer with the terms and conditions of this Agreement shall not
constitute or be asserted by any Party as a breach by any other Party of this Agreement.
10.6 Termination of Development Agreement. If Developer or Owner fails to
timely cure any item(s) of non - compliance set forth in a Notice of Breach, then the City
shall have the right but not the obligation to initiate proceedings for the purpose of
terminating this Agreement pursuant to Section 11.4 below.
10.7 City Cost Recovery. Following completion of each Periodic Review,
Developer shall reimburse the City for its actual and reasonable costs incurred in
connection with such review provided that City has provided Developer with an invoice.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
37
ARTICLE 11
DEFAULT
11.1 Notice and Cure.
11.1.1 Breach. If any Party fails to substantially to perform any term,
covenant or condition of this Agreement which is required on its part to be performed (a
"Breach"), the non - defaulting Party shall have those rights and remedies provided in this
Agreement; provided that such non - defaulting Party has first sent a written notice of
Breach (a "Notice of Breach "), in the manner required by Section 15. 1, specifying the
precise nature of the alleged Breach (including references to pertinent Sections of this
Agreement and the Existing Regulations or Subsequent Code Changes alleged to have
been breached), and the manner in which the alleged Breach may satisfactorily be cured.
If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice
of Breach to Owner and to any Secured Lender of Developer which has delivered a
Request for Notice to the City in accordance with Article 12. The City shall accept
performance by Owner of any covenant, condition, or agreement on Developer's part to
be performed hereunder with the same force and effect as though performed by
Developer.
11.1.2 Monetary Breach. In the case of a monetary Breach by Developer,
Developer shall promptly commence to cure the identified Breach and shall complete the
cure of such Breach within thirty (30) business days after receipt by Developer of the
Notice of Breach; provided that if such monetary Breach is the result of an Excusable
Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer
shall deliver to the City reasonable evidence of the Excusable Delay.
11.1.3 Non- Monetary Breach. In the case of a non - monetary Breach by
any Party, the alleged defaulting Party shall promptly commence to cure the identified
Breach and shall diligently prosecute such cure to completion; provided that the
defaulting Party :shall complete such cure within thirty (30) days after.. receipt of the
Notice of Breach or provide evidence of Excusable Delay that prevents or delays the
completion of such cure. The thirty (30) day cure period for a non- monetaiy Breach shall
be extended as is reasonably necessary to remedy such Breach; provided that the alleged
defaulting Party commences such cure promptly after receiving the Notice of Breach and
continuously and diligently pursues such remedy at all times until such Breach is cured.
11.1.4 Excusable Delay. Notwithstanding anything to the contrary
contained in this Agreement, the City's exercise of any of its rights or remedies under this
Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8
below.
11.2 Remedies for Monetary Default. If there is a Breach by Developer in the
performance of any of its monetary obligations under this Agreement which remains
uncured (a) thirty (30) business days after receipt by Developer and Owner of a Notice of
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
KH
Breach from the City and (b) after expiration of Secured Lender's Cure Period under
Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the
City in accordance with Section 12. 1), then an "Event of Monetary Default" shall have
occurred by Developer and the City shall have available any right or remedy provided in
this Agreement, at law or in equity. All of said remedies shall be cumulative and not
exclusive of one another, and the exercise of any one or more of said remedies shall not
constitute a waiver or election in respect to any other available remedy.
11.3 Remedies for Non - Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from
the other Party regarding a non - monetary Breach, and the non - monetary Breach remains
uncured: (a) after expiration of all applicable notice and cure periods, and (b) in the case
of a Breach by Developer, after the expiration of Secured Lender's Cure Period under
Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the
City in accordance with Section 12. 1), then an "Event of Non - Monetary Default" shall
have occurred and the non - defaulting Party shall have available any right or remedy
provided in this Agreement, or provided at law or in equity except as prohibited by this
Agreement. All of said remedies shall be cumulative and not exclusive of one another,
and the exercise of any one or more of said remedies shall not constitute a waiver or
election in respect to any other available remedy.
11.3.2 Specific Performance. The City, Owner and Developer
acknowledge that monetary damages and remedies at law generally are inadequate and
that specific performance is an appropriate remedy for the enforcement of this
Agreement. Therefore, unless otherwise expressly provided herein, the remedy of
specific performance shall be available to the non - defaulting party if the other Party
causes an Event of Non - Monetary Default to occur.
11.3.3 Writ of Mandate. The City, Owner and Developer hereby stipulate
that Developer shall be entitled to obtain relief in the form of a writ of mandate in
accordance with Code -of Civil Procedure Section- 108S.or Section 1094.5, as appropriate,
to remedy any Event of Non- Monetary Default by the City of its obligations and duties
under this Agreement. Nothing in this Section - 11 -3.3; however, is intended to alter the
evidentiary standard or the standard of review applicable to any action of or approval by,
the City pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by
Developer and Owner that the City would not have entered into this Agreement if the
City were to be liable in damages under or with respect to this Agreement or the
application thereof. Consequently, and except for the payment of attorneys' fees and
court costs, the City shall not be liable in damages to Developer or Owner, and Developer
and Owner covenant on behalf of themselves and their successors in interest not to sue
for or claim any damages:
(a) for any default under this Agreement;
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
39
(b) for the regulatory taking, impairment or restriction of any
right or interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
The City, Owner and Developer agree that the provisions of this Section 11.3.4 do not
apply for damages which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or
provided under this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any
dispute, controversy, or issue regarding the application, interpretation, or effect of the
provisions of this Agreement or the application of any City rules, regulations, or official
policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be
entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the
same may be an-tended from time to time and shall follow the notice procedures of
Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these
remedies are applied.
11.3.6 No Damages Against Developer /Owner. It is acknowledged by the
City that neither Developer nor Owner would have entered into this Agreement if they
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, neither
Developer nor Owner shall be liable in damages to the City for any nonmonetary default,
and the City covenants on behalf of itself not to sue for or claim any damages:
(a) for any non. monetary default hereunder; or
(b) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
The City, Owner and Developer agree that the provisions of this Section 11.3.6 do not
apply for damages which:
(a) are for a monetary default; or
(b) do not arise out of or which are not connected with any
dispute, controversy or issue regarding the application, interpretation, or effect of the
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
40
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, Owner or Developer may have at law or
equity after the occurrence of any Event of Non - Monetary Default.
11.4 Modification or Termination of Agreement by City.
11.4.1 Default by Developer. If Developer causes either an Event of
Monetary Default or an Event of Non - Monetary Default, then the City may commence
proceedings to modify or terminate this Agreement pursuant to this Section 11.4.
11.4.2 Procedure for Modification or Termination. The procedures for
modification or termination of this Agreement by the City for the grounds set forth in
Section 11.4.1 are as follows:
(a) The City shall provide a written notice to Developer and
Owner (and to any Secured Lender of Developer which has delivered a Request for
Notice to the City in accordance of Section 12.1) of its intention to modify or terminate
this Agreement unless Developer or Owner (or the Secured Lender) cures or corrects the
acts or omissions that constitute the basis of such determinations by the City (a "Hearing
Notice "). The Hearing Notice shall be delivered by the City to Developer and Owner in
accordance with Section 15.1 and shall contain the time and place of a public hearing to
be held by the City Council on the determination of the City to proceed with modification
or termination of this Agreement. The public hearing shall not be held earlier than:
(i) thirty -one (3 1) days after delivery of the Hearing Notice to Developer and Owner or
(ii) if a Secured Lender has delivered a Request for Notice in accordance with Section
12. 1, the day following the expiration of the "Secured Lender Cure Period" (as defined in
Section 12.1).
(b) If, following the conclusion of the public hearing, the City
Council: (i) determines that an Event of Non- Monetary Default has occurred or the
Developer has not been in good faith compliance with this Agreement pursuant to
Section 10.1, as applicable and (ii) further determines that neither Developer or Owner
(or the Secured Lender, if applicable) has 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
neither Developer or Owner (or the Secured Lender) has in good faith commenced to
cure or correct such acts or omissions prior to the. public hearing or is not diligently and
continuously proceeding therewith to completion, then upon making such conclusions,
the City Council may modify or terminate this Agreement. The City cannot unilaterally
modify the provisions of this Agreement pursuant to this Section 11.4. Any such
modification requires the written consent of Developer and Owner. If the City Council
does not terminate this Agreement, but proposes a modification to this Agreement as a
501ColoradoDAgmt.1001 LYLK
Final: November 26, 2013
41
result of the public hearing and Developer and Owner do not (within five (5) days of
receipt) execute and deliver to the City the form of modification of this Agreement
submitted to Developer by the City, then the City Council may elect to terminate this
Agreement at any time after the sixth day after Developer's and Owner's receipt of such
proposed modification.
11.5 Cessation of Rights and Obligations. If this Agreement is terminated by
the City pursuant to and in accordance with Section 11.4, the rights, duties and
obligations of the Parties under this Agreement shall cease as of the date of such
termination, except only for those rights and obligations that expressly survive the
termination of this Agreement. In such event, any and all benefits, including money
received by the City prior to the date of termination, shall be retained by the City.
11.6 Completion of Improvements. Notwithstanding the provisions of
Sections 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Developer
has performed substantial work and incurred substantial liabilities in good faith reliance
upon a building permit issued by the City, then Developer shall have acquired a vested
right to complete construction of the Buildings in accordance with the terms of the
building permit and occupy or use each such Building upon completion for the uses
permitted for that Building as provided in this Agreement. Any Building completed or
occupied pursuant to this Section 11.6 shall be considered legal non - conforming subject
to all City ordinances standards and policies as they then exist governing legal non-
conforming buildings and uses unless the Building otherwise complies with the property
development standards for the district in which it is located and the use is otherwise
permitted or conditionally permitted in the district.
ARTICLE 12
MORTGAGEES
12.1 Encumbrances on the Property. This Agreement shall not prevent or limit
Developer or Owner (in their 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 or the Developer's ground lease (a "Mortgage "). Each mortgagee of a
mortgage or a beneficiary of a deed of trust (each, a "Secured Lender ") on the Property
or on Developer's ground lease shall be entitled to the rights and privileges set forth in
this Article 12. Any Secured Lender may require from the City certain interpretations of
this Agreement. The City shall from time to time, upon request made by Developer or
Owner, meet with Developer /Owner 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
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
42
any Event of Monetary Default nor any Event of Non - Monetary Default shall defeat,
render invalid, diminish, or impair the lien of any Mortgage made in good faith and for
value.
12.1.2 Priority of Agreement. This Agreement shall be superior and
senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or
interest in or with respect to the Property or any portion thereof by a Secured Lender or
its successor in interest (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination or otherwise) shall be subject to all of the terms and
conditions of this Agreement.
12.1.3 Right of Secured Lender to Cure Default.
(a) A Secured Lender may give notice to the City, specifying
the name and address of such Secured Lender and attaching thereto a hue and complete
copy of the Mortgage held by such Secured Lender, specifying the portion of the
Property that is encumbered by the Secured Lender's lien (a "Request for Notice "). If
the Request for Notice has been given, at the same time the City sends to Developer and
Owner any Notice of Breach or Hearing Notice under this Agreement, then if such Notice
of Breach or Hearing Notice affects the portion of the Property encumbered by the
Secured Lender's lien, the City shall send to such Secured Lender a copy of each such
Notice of Breach and each such Hearing Notice from the City to Developer and Owner.
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 Breach or Hearing Notice, such Secured Lender shall thereafter have a period of time
(in addition to any notice and/or cure period afforded to Developer under this Agreement)
equal to: (a) ten (10) business days in the case of any Event of Monetary Default and
(b) thirty (30) days in the case of any Event of Non - Monetary Default, during which
period the Secured Lender may provide a remedy or cure of the applicable Event of
Monetary Default or may provide a remedy or cure of the applicable Event of Non -
Monetary Default; provided that if the cure of the Event of Non - Monetary Default cannot
reasonably be completed within thirty days, Secured Lender may, within such 30 -day
period, commence to cure the same and thereafter diligently prosecute such cure to
completion (a "Secured Lender's Cure Period "). If Developer has caused an Event of
Monetary Default or an Event of Non - Monetary Default, then each Secured Lender shall
have the right to remedy such Event of Monetary Default or an Event of Non - Monetary
Default, as applicable, or to cause the same to be remedied prior to the conclusion of the
Secured Lender's Cure Period and otherwise as herein provided. The City shall accept
performance by any Secured Lender of any covenant, condition, or agreement on
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
43
Developer's part to be performed hereunder with the same force and effect as though
performed by Developer.
(c) The period of time given to the Secured Lender to cure any
Event of Monetary Default or an Event of Non - Monetary Default by Developer which
reasonably requires that said Secured Lender be in possession of the Property to do so,
shall be deemed extended to include the period of time reasonably required by said
Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver
or otherwise) promptly and with due diligence; provided that during such period all other
obligations of Developer under this Agreement, including, without limitation, payment of
all amounts due, are being duly and promptly performed.
12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under
this Agreement to perform the obligations of Developer's or the affirmative covenants of
Developer's hereunder or to guarantee such performance unless and until such time as a
Secured Lender takes possession or becomes the owner of the estate covered by its
Mortgage. If the Secured Lender takes possession or becomes the owner of any portion
of the Property, then from and after that date, the Secured Lender shall be obligated to
comply with all provisions of this Agreement; provided that the Secured Lender shall not
be responsible to the City for any unpaid monetary obligations of Developer that accrued
prior to the date the Secured Lender became the fee owner of the Property or the tenant of
Developer's ground lease.
(b) Nothing in Section 12.1.4(a) is intended, nor should be
construed or applied, to limit or restrict in any way the City's authority to terminate this
Agreement, as against any Secured Lender as well as against Developer and Owner 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 Property Interests. This Agreement shall not
be severable from the Property and any transfer of the Property or any portion thereof,
including but not limited to Developer's ground lease, shall automatically operate to
transfer the benefits and burdens of this Agreement with respect to the transferred
Property or transferred portions, as applicable.
13.1.2 Transfer Rights. Developer may freely sell, transfer, exchange,
hypothecate, encumber or otherwise dispose of its interest in the Property, including its
ground lease, without the consent of the City. Developer shall, however, give written
notice to the other Parties, in accordance with Section 15. 1, of any such transfer of a
501 ColoradoDAgmt.l 0011.KLK
Final: November 26, 2013
44
Property interest, disclosing in such notice (a) the identity of the transferee of the
Developer's interest in Property (the "Developer's Transferee "), (b) the nature of the
Property interest that has been transferred, and (c) the address of the Developer's
Transferee as applicable. Similarly, Owner may freely sell, transfer, exchange,
hypothecate, encumber or otherwise dispose of its interest in the Property, including its
fee interest, without the consent of the City. Owner shall, however, give written notice to
the other Parties, in accordance with Section 15. 1, of any such transfer of a Property
interest, disclosing in such notice (a) the identity of the transferee of the Property
( "Property Transferee "), (b) the nature of the Property interest that has been transferred,
and (c) the address of the Property Transferee as applicable.
13.2 Release Upon Transfer. Upon the sale, transfer, exchange or
hypothecation of the rights and interests of Developer to the Property, Developer shall be
released from its obligations under this Agreement to the extent of such sale, transfer or
exchange with respect to the Property if: (a) Developer has provided written notice of
such transfer to City; and (b) Developer's Transferee executes and delivers to City a
written agreement in which Developer's Transferee expressly and unconditionally
assumes all of the obligations of Developer under this Agreement with respect to
Developer's Property interest in the form of Exhibit "L" attached hereto (the
"Assumption Agreement "). Upon such transfer of Developer's Property interest and the
express assumption of Developer's obligations under this Agreement by Developer's
Transferee, the City agrees to look solely to Developer's Transferee for compliance with
the provisions of this Agreement. Any such Developer's Transferee shall be entitled to
the benefits of this Agreement as "Developer" hereunder and shall be subject to the
obligations of this Agreement. Failure to deliver a written Assumption Agreement
hereunder shall not affect the transfer of the benefits and burdens as provided in
Section 13. 1, provided that the transferor shall not be released from its obligations
hereunder unless and until the executed Assumption Agreement is delivered to the City.
ARTICLE 14
INDEMNITY TO CITY
14.1 Indemnity. Developer agrees to and shall defend, indemnify and hold
harmless the City, its City Council, boards and commissions, officers, agents, employees,
volunteers and other representatives (collectively referred to as "City Indemnified
Parties ") from and against any and all loss, liability, damages, cost, expense, claims,
demands, suits, attorney's fees and judgments (collectively referred to as "Damages "),
including but not limited to claims for damage for personal injury (including death) and
claims for property damage arising directly or indirectly from the following: (1) for any
act or omission of Developer or those of its officers, board members, agents, employees,
volunteers, contractors, subcontractors or other persons acting on its behalf (collectively
referred to as the "Developer Parties ") which occurs during the Term and relates to this
Agreement; (2) for any act or omission related to the operations of Developer Parties,
including but not limited to the maintenance and operation of areas on the Property
accessible to the public. Developer's obligation to defend, indemnify and hold harmless
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
45
applies to all actions and omissions of Developer Parties as described above caused or
alleged to have been caused in connection with the Project or Agreement, except to the
extent any Damages are caused by the active negligence or willful misconduct of any
City Indemnified Parties. This Section 14. 1.1 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 se. The City shall have the right to approve legal
counsel retained by Developer to defend any claim, action or proceeding which
Developer is obligated to defend pursuant to Section 14.1.1, which approval shall not be
unreasonably withheld, conditioned or delayed. If any conflict of interest results during
the mutual representation of the City and Developer in defense of any such action, or if
the City is reasonably dissatisfied with legal counsel retained by Developer, the City shall
have the right (a) at Developer's costs and expense, to have the City Attorney undertake
and continue the City's defense, or (b) with Developer's approval, which shall not be
reasonably withheld or delayed, to select separate outside legal counsel to undertake and
continue the City's defense.
ARTICLE 15
GENERAL PROVISIONS
15.1 Notices. Formal notices, demands and communications between the
Parties shall be deemed sufficiently given if delivered to the principal offices of the City
or Developer, as applicable, by (i) personal service, or (ii) express mail, Federal Express,
or other similar overnight mail or courier service, regularly providing proof of delivery,
or (iii) registered or certified mail, postage prepaid, return receipt requested, or
(iv) facsimile (provided that any notice delivered by facsimile is followed by a separate
notice sent within twenty -four (24) hours after the transmission by facsimile delivered in
one of the other manners specified above). Such notice shall be addressed as follows:
To City:
City of Santa Monica
1685 Main Street, Room 204
Santa Monica, CA 90401
Attention: City Manager
Fax: (310) 917 -6640
With a copy to:
City of Santa Monica
1685 Main Street, Room 212
Santa Monica, CA 90401
Attn: Planning and Community Development Director
Fax: (310) 458 -3380
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
46
To Developer:
Palmetto Hospitality of Santa Monica II, LLC
100 Dunbar Street, Suite 402
Spartanburg, SC 29306
Attn: General Manager
Fax: (864) 596 -8934
With copies to:
Hampton Inn Suites
501 Colorado Avenue
Santa Monica, California 90401
Attn: General Manager
and to:
Harding Larmore Kutcher & Kozal, LLP
1250 Sixth Street, Suite 200
Santa Monica, California 90401
Attn: Kenneth L. Kutcher
Fax: (310) 392 -3537
To Owner:
501 COLORADO INVESTORS LLC
V. Levy Affiliated
201 Wilshire Blvd, Second Floor
Santa Monica, CA 90401
Attn: Jonathan Kohn, Director of Leasing
Fax: 310.393.7245
Notice given in any other manner shall be effective when received by the addressee. Any
Party may change the addresses for delivery of notices to such Party by delivering notice
to the other Party in accordance with this provision.
15.2 Entire Agreement; Conflicts. This Agreement represents the entire
agreement of the Parties. This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotiations or previous
agreements between the Parties or their predecessors in interest with respect to all or any
part of the subject matter hereof. Should any or all of the provisions of this Agreement
be found to be in conflict with any other provision or provisions found in the Existing
Regulations, then the provisions of this Agreement shall prevail. Should any of the
Conditions of Approval set forth in Section B of Exhibit "D" attached hereto conflict
with any of the Mitigation Measures set forth in Section A of Exhibit "D" attached
hereto, the more stringent or exacting requirement shall control.
501 ColoradoDAgmt.1001 I .KLK
Final: November 26, 2013
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 Tenn is and shall be conclusively deemed to have consented and
agreed to every provision contained herein, to the extent relevant to said right, title or
interest, whether or not any reference to this Agreement is contained in the instrument by
which such person acquired an interest in the Project.
15.4 Agreement Not for Benefit of Third Parties. This Agreement is made and
entered into for the sole protection and benefit of Developer and the City and their
respective successors and assigns. No other person shall have any right of action based
upon any provision of this Agreement.
15.5 No Partnership or Joint Venture. Nothing in this Agreement shall be
deemed to create a partnership or joint venture between the City and Developer or to
render either Party liable in any manner for the debts or obligations of the other.
15.6 Estoppel Certificates. Either Party may, at any time, and from time to
time, deliver written notice to the other Party requesting such Party to certify in writing
(each, an "Estoppel Certificate "): (a) that this Agreement is in full force and effect,
(b) that this Agreement has not been amended or modified either orally or in writing, or if
so amended, identifying the amendments, (c) whether or not, to the knowledge of the
responding Party, the requesting Party is in Breach or claimed Breach in the performance
of its obligations under this Agreement, and, if so, describing the nature and amount of
any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the
responding Party, any event has occurred or failed to occur which, with the passage of
time or the giving of notice, or both, would constitute an Event of Monetary Default or an
Event of Non- Monetary Default and, if so, specifying each such event. A Party receiving
a request for an Estoppel Certificate shall execute and return such Certificate within thirty
(30) days following the receipt of the request therefor. If the party receiving the request
hereunder does not execute and return the certificate in such 30 -day period and if
circumstances are such thatthe Party requesting the notice requires such notice as a
matter of reasonable business necessity, the Party requesting the notice may seek a
second request which conspicuously states "FAILURE TO EXECUTE THE
REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE
DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE
DEVELOPMENT AGREEMENT" and which sets forth the business necessity for a
timely response to the estoppel request. If the Party receiving the second request fails to
execute the Estoppel Certificate within such 15 -day period, it shall be conclusively
deemed that the Agreement is in full force and effect and has not been amended or
modified orally or in writing, and that there are no uncured defaults under this Agreement
or any events which, with passage of time of giving of notice, of both, would constitute a
default under the Agreement. The City Manager shall have the right to execute any
Estoppel Certificate requested by Developer or Owner under this Agreement. The City
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
E,
acknowledges that an Estoppel Certificate may be relied upon by any Developer's
Transferee, Property Transferee, Secured Lender or other party.
15.7 Tune. Time is of the essence for each provision of this Agreement of
which time is an element.
15.8 Excusable Delays.
15.85 In addition to any specific provisions of this Agreement, non-
performance by Developer of its obligations under this Agreement shall be excused when
it has been prevented or delayed in such performance by reason of any act, event or
condition beyond the reasonable control of Developer (collectively, "Excusable Delays ")
for any of the following reasons:
(a) War, insurrection, walk -outs, riots, acts of terrorism,
floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused
performances;
(b) Governmental restrictions or moratoria imposed by the City
or by other governmental entities or the enactment of conflicting State or Federal laws or
regulations;
(c) The imposition of injunctive relief, restraining orders,
restrictions or moratoria by judicial decisions or by litigation, contesting the validity, or
seeking the enforcement or clarification of, this Agreement or the Environmental Impact
Report ( "EIR ") related to the Project -- or the project concurrently approved by the City
for the project site at 1550 Fifth Street, Santa Monica, California -- whether instituted by
Developer, the City or any other person or entity, or the filing of a lawsuit by any Party
arising out of this Agreement, the FIR, the corresponding Mitigation Monitoring
Program, the Project's Statement of Overriding Considerations, or any permit or approval
Developer deems necessary or desirable for the implementation of the Project;
(d) The institution' of a referendum pursuant to Government
Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter,
modify'or amend the ordinance adopted by the City Council approving and implementing
this Agreement or the development agreement concurrently approved by the City as to
the project at 1550 Fifth Street, Santa Monica, California;
(e) Inability to secure necessary labor, materials or tools, due
to strikes, lockouts, or similar labor disputes;
(f) Any inability of the Developer to proceed with construction
of the Project due to remediation activities related to soil or ground water contamination
if they must be completed prior to commencement of construction, not to exceed twelve
(12) months;
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
49
(g) Any inability of the Developer to proceed with construction
due to construction of the Exposition Light Rail line or station or the City's Colorado
Esplanade Project, not to exceed twelve (12) months; and
(h) Failure of the City to timely perform its obligations
hereunder, including its obligations under Section 7.2 above.
15.8.2 Under no circumstances shall the inability of Developer to secure
financing be an Excusable Delay to the obligations of Developer except to the extent the
inability to secure financing is directly associated with war, insurrection, walk -outs, riots,
acts of terrorism, floods, earthquakes, fires, casualties, acts of God, or similar grounds
beyond the control of Developer.
15.8.3 In order for an extension of time to be granted for any Excusable
Delay, Developer must deliver to the City written notice of the commencement of the
Excusable Delay within sixty (60) days after the date on which Developer becomes aware
of the existence of the Excusable Delay. The extension of time for an Excusable Delay
shall be for the actual period of the delay.
15.8.4 Nothing contained in this Section 15.8 is intended to modify the
terms of either Section 5.1.2 or Section 5.5 of this Agreement.
15.9 Governing. This Agreement shall be governed exclusively by the
provisions hereof and by the laws of the State of California.
15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any
court action or other proceeding commenced that includes any challenge to the validity,
enforceability or any term or provision of this Agreement, then Developer shall
indemnify, hold harmless, pay all costs actually incurred, and provide defense in said
action or proceeding, with counsel reasonably satisfactory to both the City and
Developer. The City shall cooperate with Developer in any such defense as Developer
may reasonably request.
15.11 Attorneys' Fees., -r If, any Party commences any action for the interpretation,
enforcement; termination; cancellation or rescission of this Agreement or for specific
performance for the Breach of this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include
attorneys' fees on any appeal as well as any attorneys' fees incurred in any post judgment
proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid
whether or not such action is prosecuted to judgment. In any case where this Agreement
provides that the City or Developer is entitled to recover attorneys' fees from the other,
the Party so entitled to recover shall be entitled to an amount equal to the fair market
value of services provided by attorneys employed by it as well as any attorneys' fees
actually paid by it to third Parties. The fair market value of the legal services for public
attorneys shall be determined by utilizing the prevailing billing rates of comparable
private attorneys.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
50
15.12 Recordation. The Parties shall cause this Agreement to be recorded
against title to the Property in the Official Records of the County of Los Angeles. The
cost, if any, of recording this Agreement shall be borne by Developer.
15.13 No Waiver. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized representative of the Party
against whom enforcement of a waiver is sought and referring expressly to this Section
15.13. No delay or omission by either Party in exercising any right or power accruing
upon non - compliance or failure to perform by the other Party under any of the provisions
of this Agreement shall impair any such right or power or be construed to be a waiver
thereof, except as expressly provided herein. No waiver by either Party of any of the
covenants or conditions to be performed by the other Party shall be construed or deemed
a waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof of this Agreement.
15.14 Construction of this Agreement. The Parties agree that each Party and its
legal counsel have reviewed and revised this Agreement and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting Party shall not apply
in the interpretation of this Agreement or any amendments or exhibits thereto.
15.15 Other Governmental Approvals. Developer may apply for such other
permits and approvals as may be required for development of the Project in accordance
with this Agreement from other governmental or quasi - governmental agencies having
jurisdiction over the Property. The City shall reasonably cooperate with Developer in its
endeavors to obtain such permits and approvals.
15.15.1 Further Assurances; Covenant to Sign Documents. Each
Party shall take all actions and do all things, and execute, with acknowledgment or
affidavit, if required, any and all documents and writings, which may be necessary or
proper to achieve the purposes and objectives of this Agreement.
15.15.2 Processing. Upon satisfactory completion by Developer of
all required preliminary actions and payments of appropriate processing fees, if any, the
City shall, subject -to all legal requirements, promptly initiate, diligently process, and
complete at the 'earliest possible time all required steps, and expeditiously act upon any
approvals and permits necessary for the development by Developer of the Project in
accordance with this Agreement, including, but not limited to, the following:
(a) the processing of applications for and issuing of all
Discretionary Approvals requiring the exercise of judgment and deliberation by City;
(b) the holding of any required public hearings; and
(c) the processing of applications for and issuing of all City
Technical Permits requiring the determination of conformance with the Existing
Regulations.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
51
15.15.3 No Revocation. The City shall not revoke or subsequently
disapprove any approval or future approval for the development of the Project or the
Property once issued by the City provided that the development of the Project or the
Property is in accordance with such approval. Any disapproval by the City shall state in
writing the reasons for such disapproval and the suggested actions to be taken in order for
approval to be granted.
15.15.4 Processing During Third Party Lifi ation. If any third party
lawsuit is filed against the City or Developer relating to this Agreement or to other
development issues affecting the Property, the City shall not delay or stop the
development, processing or construction of the Property, or issuance of the City
Technical Permits, unless the third party obtains a court order preventing the activity.
Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8(c),
after service on the City or Developer of the initial petition or complaint challenging this
Agreement or the Project, the Developer may apply to the Planning Director for a tolling
of the applicable deadlines for Developer to otherwise comply with this Agreement.
Within 40 days after receiving such an application, the Planning Director shall either toll
the time period for up to five years during the pendency of the litigation or deny the
requested tolling.
15.15.5 State, Federal or Case Law. Where any state, federal or
case law allows the City to exercise any discretion or take any act with respect to that
law, the City shall, in an expeditious and timely manner, at the earliest possible time, (i)
exercise its discretion in such a way as to be consistent with, and carry out the terms of,
this Agreement and (ii) take such other actions as may be necessary to carry out in good
faith the terms of this Agreement.
15.16 Venue. Any legal action or proceeding among the Parties arising out of
this Agreement shall be instituted in the Superior Court of the County of Los Angeles,
State of California, in any other appropriate court in that County, or in the Federal
District Court in the Central District of California.
15.17 Exhibits. The following exhibits which are part of this Agreement are
attached hereto_ and each of which is incorporated herein by this reference as though set
_forth in full:
Exhibit "A" Legal Description of the Property
Exhibit "B" Project Plans
Exhibit "C" Permitted Fees and Exactions
Exhibit "D" Mitigation Measures and Conditions
Exhibit `B" SMMC Article 9 (Planning and Zoning)
Exhibit "F -1" Local Hiring Program for Construction
Exhibit "F -2" Local Hiring Program for Permanent Employment
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
52
Exhibit "G -1"
Hotel Conditions of Approval to Dispense Alcohol from
the Suite Shop
Exhibit "G -2"
Hotel Conditions of Approval to Dispense Alcohol from
Common Areas
Exhibit "H"
Incidental Food Service Conditions of Approval to
Dispense Alcohol
Exhibit "I"
Parking and Deliveries Management Plan
Exhibit "J"
[Reserved]
Exhibit "K"
Construction Mitigation Plan
Exhibit "L"
Assignment and Assumption Agreement
Except as to the Project Plans (attached hereto as Exhibit B) which shall be
treated in accordance with Section 2.1 above, the text of this Agreement shall prevail in
the event that any inconsistencies exist between the Exhibits and the text of this
Agreement.
15.18 Counterpart Signatures. The Parties may execute this Agreement on
separate signature pages which, when attached hereto, shall constitute one complete
Agreement.
15.19 Certificate of Performance. Upon the completion of the Project, or any
phase thereof, or upon performance of this Agreement or its earlier revocation and
termination, the City shall provide Developer, upon Developer's request, with a statement
("Certificate of Performance ") evidencing said completion, termination or revocation
and the release of Developer from further obligations hereunder, except for any further
obligations which survive such completion, termination or revocation. The Certificate of
Performance shall be signed by the appropriate agents of Developer and the City and
shall be recorded against title to the Property in the official records of Los Angeles
County, California. Such Certificate of Performance is not a notice of completion as
referred to in California Civil Code Section 3093.
15.20 Interests of Developer and Property Owner. Owner represents to the City `
that, as of the Effective Date, it is the owner of the entire Property, subject to
encumbrances, easements, covenants, conditions, restrictions, and other matters of record
including Developer's ground lease. Developer represents to the City that, as of the
Effective Date, it will have a legal right to a ground lease for the Property for the purpose
of developing and operating this Project.
15.21 Operating Memoranda. The provisions of this Agreement require a close
degree of cooperation between the City and Developer. During the Term of this
Agreement, clarifications to this Agreement and the Existing Regulations may be
appropriate with respect to the details of performance of the City and Developer. If and
when, from time to time, during the term of this Agreement, the City and Developer
agree that such clarifications are necessary or appropriate, they shall effectuate such
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
53
clarification through operating memoranda approved in writing by the City, Owner and
Developer, which, after execution, shall be attached hereto and become part of this
Agreement and the same may be further clarified from time to time as necessary with
future written approval by the City, Owner and Developer. Operating memoranda are not
intended to and cannot constitute an amendment to this Agreement but mere ministerial
clarifications, therefore public notices and hearings shall not be required for any
operating memorandum. The City Attorney shall be authorized, upon consultation with,
and approval of, Developer, to determine whether a_requested clarification may be
effectuated pursuant to the execution and delivery of an operating memorandum or
whether the requested clarification is of such character to constitute an amendment of this
Agreement which requires compliance with the provisions of Section 8.1 above. The
authority to enter into such operating memoranda is hereby delegated to the City
Manager and the City Manager is hereby authorized to execute any operating memoranda
hereunder without further action by the City Council.
15.22 Acknowledgments, Agreements and Assurance on the Pa -t of Developer.
15.22.1 Developer's Faithful Performance. The Parties
acknowledge and agree that Developer's faithful performance in developing the Project
on the Property and in constructing and installing certain public improvements pursuant
to this Agreement and complying with the Existing Regulations will fulfill substantial
public needs. The City acknowledges and agrees that there is good and valuable
consideration to the City resulting from Developer's assurances and faithful performance
thereof and that same is in balance with the benefits conferred by the City on the Project.
The Parties further acknowledge and agree that the exchanged consideration hereunder is
fair, just and reasonable. Developer acknowledges that the consideration is reasonably
related to the type and extent of the impacts of the Project on the community and the
Property, and further acknowledges that the consideration is necessary to mitigate the
direct and indirect impacts caused by Developer on the Property.
15.22.2 Obligations to be Non - Recourse. As a material element of
this Agreement, and in partial consideration for Developer's execution of this Agreement,
the Parties each understand and agree that the City's remedies for breach of the
obligations of Developer under this Agreement shall be limited as described in Sections
11.2 through 11.4 above.
15.23 Not a Public Dedication. Nothing in this Agreement shall be deemed to be
a gift or dedication of the Property, or of the Project, or any portion thereof, to the general
public, for the general public, or for any public use or purpose whatsoever, it being the
intention and understanding of the Parties that this Agreement be strictly limited to and
for the purposes herein expressed for the development of the Project as private property.
Owner and /or Developer, to the extent of their respective property interests, 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
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
54
limitation to prevent any person or entity from obtaining or accruing any prescriptive or
other right to use the Property or the Project.
15.24 Other Agreements. The City acknowledges that certain additional
agreements may be necessary to effectuate the intent of this Agreement and facilitate
development of the Project. The City Manager or his /her designee is hereby authorized
to prepare, execute, and record those additional agreements.
15.25 Severability and Termination. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable, or if any
provision of this Agreement is superseded or rendered unenforceable according to any
law which becomes effective after the Effective Date, the remainder of this Agreement
shall be effective to the extent the remaining provisions are not rendered impractical to
perform, taking into consideration the purposes of this Agreement.
This Agreement is executed by the Parties on the date first set forth above and is
made effective on and as of the Effective Date.
DEVELOPER:
PALMETTO HOSPITALITY OF SANTA
MONICA II, LLC, a California limited liability
company
By: _
Name:
Title:
OWNER:
501 COLORADO INVESTORS LLC, a California -
limited .liability- company
By:
Name:
Title:
[signatures continued on next page]
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
55
ATTEST:
SARAH P. GORMAN
City Clerk
APPROVED AS TO FORM:
MARSHA JONES MOUTRIE
City Attorney
50lColoradoDAgmt.1001 LKLK
Final: November 26, 2013
CITY:
CITY OF SANTA MONICA
a municipal corporation
By:
ROD GOULD
City Manager
56
EXHIBIT A
LEGAL DESCRIPTION
501 COLORADO AVENUE
REAL PROPERTY IN THE CITY OF SANTA MONICA, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT "M" AND THE SOUTHEASTERLY 10 FEET OF LOT "N" IN BLOCK 194 OF
TOWN OF SANTA MONICA, IN THE CITY OF SANTA MONICA, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3,
PAGES 80 AND 81, AND IN BOOK 39, PAGES 45 ET. SEQ., OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
THE NORTHWESTERLY 40 FEET OF LOT "N" IN BLOCK 194 OF TOWN OF
SANTA MONICA, IN THE CITY OF SANTA MONICA, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3,
PAGES 80 AND 81 AND IN BOOK 39, PAGES 45 ET. SEQ., OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 3:
LOT "O" IN BLOCK 194 OF TOWN OF SANTA MONICA, IN THE CITY OF
SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 3, PAGES 80 AND 81, AND IN BOOK 39, PAGES
45 ET. SEQ., OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
ASSESSOR'S PARCEL NUMBER: 4291- 024 -030
50IColoradoDAgmt.1001 LKLK
Final: November 26, 2013
57
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
EXHIBIT B
PROJECT PLANS
EXHIBIT "C"
PERMITTED FEES AND EXACTIONS
Developer shall pay the following fees and charges that are within the City's
jurisdiction and at the rate in effect at the time payments are made:
(a) Upon submittal for Architectural Review Board (ARB) review, Developer
shall pay City fees for processing of ARB applications;
(b) Upon submittal for plan check, Developer shall pay City plan check fees;
(c) Prior to issuance of construction permits, Developer shall pay the
following City fees and all other standard fees imposed on similar
development projects:
• Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping,
Excavation and Shoring Permit fees (collected by Building & Safety)
• Shoring Tieback fee (collected by EPWM)
• Construction and Demolition (C &D) Waste Management fee (SMMC
Section 7.60.020) (collected by EPWM) (collected by EPWM)
• Wastewater Capital Facilities Fee (SMMC Section 7.04.460) (collected
by EPWM)
• Water Capital Facilities Fee & Water Meter Instillation fee (Water
Meter Permit fee) (SMMC Section 7.12.090) (collected by EPWM)
• Fireline Meter fee (SMMC Section 7.12.090) (collected by EPWM)
• Childcare Linkage Fee (SMMC Section 9.72.040). Developer shall
execute a contract to pay the fee prior to issuance of a building permit.
Developer shall pay the fee prior to the issuance of a final certificate of
occupancy for the Project.
• Cultural Ails Fee (SMMC Section 9.04.10.20). Developer shall execute
a contract to pay the fee prior to issuance of a building permit.
Developer shall pay the fee prior to the issuance of a final certificate of
occupancy for the Project.
(d) Upon inspection of the Project during the course of construction, City
inspection fees.
These fees shall be reimbursed to Developer in accordance with the City's
standard practice should Developer not proceed with development of the Project.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
59
2. Prior to issuance of permits for any construction work in the public right -of -way,
or use of public property, Developer shall pay the following City fees:
® Use of Public Property Permit fees (SMMC 7.04.670) (EPWM)
® Utility Excavation Permit fee (SMMC 7.04.010) (EPWM)
® Street Permit fee (SMMC 7.04.790) (EPWM)
Developer shall reimburse the City for its ongoing actual costs to monitor the
project's compliance with this Development Agreement. The City shall bill
Developer for staff time and any material used pursuant to the hourly fees in
effect at the time monitoring is performed. Developer shall submit payment to the
City within 30 days after receipt of an invoice for same from the City.
501 ColoradoDAgmt. 100 1 I .KLK
Final: November 26, 2013
60
EXHIBIT D
MITIGATION MEASURES
AND CONDITIONS OF APPROVAL
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
61
SECTION A — MITIGATION MEASURES
1. AQ -2a Air Quality Management Plan. An Air Quality Management Plan for project
construction shall be prepared and approved by the City. The Plan would address air
quality impacts and outline measures that would be used to reduce impacts.
Measures would include:
• Fugitive Dust Control. All construction shall comply with the requirements
of SCAQMD Rule 403, Fugitive Dust, which requires the implementation of
Reasonably Available Control Measures (RACM) for all fugitive dust
sources, and the Air Quality Management Plan (AQMP), which identifies
Best Available Control Measures (BACM) and Best Available Control
Technologies (BACT) for area sources and point sources, respectively.
• Staging Area. Construction contractors shall establish an on -site construction
equipment staging area and construction worker parking lot, located on
either . paved surfaces or unpaved surfaces subjected to soil stabilization
treatments. Control access to public roadways by limiting curb cuts/
driveways to minimize project construction impacts upon roadway traffic
operations.
• Non - Vehicular Equipment Engines. Construction contractors shall properly
maintain non - vehicular equipment engines to minimize the volume of
exhaust emissions.
• Electricity. Construction contractors shall use electricity primarily from
power poles, rather than temporary diesel or gasoline powered generators.
• Alternative Fuel Sources. To the extent feasible, construction contractors
shall use on -site mobile equipment powered by alternative fuel sources (i.e.,
methanol, natural gas, propane or butane). Expected use of non - alternative
fuels shall be described within the Air Quality Management Plan.
• Inspection of Equipment. Construction contractors shall inspect construction
equipment prior to leaving the sites and wash off loose dirt with wheel
washers, as necessary.
• Ridesharing/ Shuttle. Construction contractors shall provide encourage
ridesharing or provide shuttle service for parking by construction workers in
satellite parking lots, as needed.
• PMro Reduction Measures for Grading Activities. Particulate matter
reduction measures from the SCAQMD shall be applied to all grading
activities occurring on the project sites throughout the construction phase.
These shall include:
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
m
- Apply water every 3 hours to disturbed areas within the sites;
- Require minimum soil moisture of 12% for earthmoving by use
of a moveable sprinkler system or a water truck;
- Replace ground cover in disturbed areas as quickly as possible. If
disturbed graded areas remain inactive for greater than four days,
non -toxic soil stabilizers shall be applied; and
- All trucks hauling dirt, sand, soil, or other loose materials shall
be tarped with a fabric cover and maintain a freeboard height of
12 inches.
® PMro Reduction Measures for Haul Road Vehicle Activity. Particulate
matter reduction measures from the SCAQMD shall be applied to all haul
road vehicle activities occurring on the project sites throughout the
construction phase. These shall include:
- Limit on -site vehicle;
- Install pipe -grid trackout - control device to reduce mud/ dirt
trackout from exit routes;
- Replace ground cover in disturbed areas as quickly as possible - if
disturbed graded areas remain inactive for greater than four days,
non -toxic soil stabilizers shall be applied; and
- Apply chemical dust suppressant annually to unpaved parking
areas.
• PMro Reduction Measures for Demolition Activity. Particulate matter
reduction measures from the SCAQMD shall be applied to all demolition
activities occurring on the project sites throughout the construction phase.
These shall include:
Apply water every 4 hours to the area within 100 feet of a
structure being demolished, to reduce vehicle trackout;
- Apply water to disturbed soils after demolition is completed or at
the end of each day of cleanup;
- Prohibit demolition activities when wind speeds exceed 25 miles
per hour; and
- Apply dust suppressants (e.g. polymer emulsion) to disturbed
areas upon completion of demolition.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
63
® Street Sweeping for Mud/dirt Trackout onto Local Streets. During
demolition of the existing improvements on the Property and during
construction of the Project, implement a street sweeping program with Rule
1186 compliant PMro efficient vacuum units (14 -day frequency).
2. MM CUL -2a If archaeological resources are encountered during implementation of
the proposed projects, ground- disturbing activities shall temporarily be redirected
from the vicinity of the find. The Applicant shall immediately notify a qualified
archaeologist of the find and coordinate with the archaeologist as to the immediate
treatment of the find until a proper site visit and evaluation is made by the
archaeologist. The archaeologist shall be allowed to temporarily divert or redirect
grading or excavation activities in the vicinity in order to make an evaluation of the
find and determine appropriate treatment. Treatment may include implementation of
archaeological data recovery excavations to remove the resource from the project
area or preservation in place. The archaeologist shall prepare a final report about the
fmd and shall be submitted by the Applicant to the lead agency, the South Central
Coastal Information Center, and representatives of other appropriate or concerned
agencies to signify the satisfactory completion of the project and required mitigation
measures. The report shall include documentation and interpretation of the resources
recovered including evaluation of the find's eligibility for listing in the California
Register of Historic Places. The landowner, in consultation with the archaeologist
and the lead agency, shall designate repositories in the event that archaeological
material is recovered. The archaeologist shall also determine the need for
archaeological monitoring for any ground - disturbing activities thereafter.
3. MM CUL -2b If human remains are encountered unexpectedly during
implementation of the proposed projects, State Health and Safety Code Section
7050.5 requires that no further disturbance shall occur until the County Coroner has
made the necessary findings as to origin and disposition pursuant to PRC Section
5097.98. If the remains are determined to be of Native American descent, the
coroner has 24 hours to notify the Native American Heritage Commission (NAHC).
The NAHC shall then identify the person(s) thought to be the Most Likely
Descendent (MLD). The MLD may, with the permission of the land owner, or his or
her authorized representative, inspect -- the - site, of ihc;--- diseovery of the Native -
American remains and may recommend to the owner or the person responsible for
the excavation work means for treating or disposing, with appropriate dignity, the
human remains and any associated grave goods. The MLD shall complete their
inspection and make their recommendation within 48 hours of being granted access
by the land owner to inspect the discovery. The recommendation may include the
scientific removal and nondestructive analysis of human remains and items
associated with Native American burials. Upon the discovery of the Native
American remains, the landowner shall ensure that the immediate vicinity, according
to generally accepted cultural or archaeological standards or practices, where the
Native American human remains are located, is not damaged or disturbed by further
development activity until the landowner has discussed and conferred, as prescribed
in this mitigation measure, with the MLD regarding their recommendations, if
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
SO
applicable, taking into account the possibility of multiple human remains. The
landowner shall discuss and confer with the descendants all reasonable options
regarding the descendants' preferences for treatment. Whenever the NAHC is unable
to identify a MLD, or the MLD identified fails to make a recommendation, or the
landowner or his or her authorized representative rejects the recommendation of the
descendants and the mediation provided for in Subdivision (k) of Section 5097.94, if
invoked, fails to provide measures acceptable to the landowner, the landowner or his
or her authorized representative shall inter the human remains and items associated
with Native American human remains with appropriate dignity on the property in a
location not subject to further and future subsurface disturbance.
4. MM CUL -3a A qualified paleontologist shall attend a pre- grading/excavation
meeting and develop a paleontological monitoring program for excavations into
older Quaternary Alluvium deposits. A qualified paleontologist is defined as a
paleontologist meeting the criteria established by the Society for Vertebrate
Paleontology. The qualified paleontologist shall supervise a paleontological monitor
who shall be present at such times as required by the paleontologist during
construction excavations into native soils associated with older Quaternary Alluvium
deposits. Monitoring shall consist of visually inspecting fresh exposures of rock for
larger fossil remains and, where appropriate, collecting wet or dry screened sediment
samples of promising horizons for smaller fossil remains. The frequency of
monitoring inspections shall be determined by the paleontologist and shall be based
on the rate of excavation and grading activities, the materials being excavated, and
the depth of excavation, and if found, the abundance and type of fossils encountered.
5. MM CUL -3b If a potential fossil is found, the paleontological monitor shall be
allowed to temporarily divert or redirect grading and excavation activities in the area
of the exposed fossil to facilitate evaluation and, if necessary, salvage. At the
Paleontologist's discretion and to reduce any construction delay, the grading and
excavation contractor shall assist in removing rock samples for initial processing.
Any fossils encountered and recovered shall be prepared to the point, of
identification and catalogued before they are donated to their final repository. Any
fossils collected shall be donated =to- a- public, non -profit institution with.a research
interest in the materials such =as the - Natural- History Museum of Los Angeles
County. Accompanying notes, maps, and photographs shall also be filed at the
repository.
6. MM CUL -3e The paleontologist shall prepare a report summarizing the results of
the monitoring and salvaging efforts, the methodology used in these efforts, as well
as a description of the fossils collected and their significance. The report shall be
submitted by the Applicant to the lead agency, the Natural History Museum of Los
Angeles County, and representatives of other appropriate or concerned agencies to
signify the satisfactory completion of the proposed projects and required mitigation
measures..
501 ColoradoDAgnt.1001 LKLK
Final: November 26, 2013
65
7. MM GEO -1 The foundation should be designed to distribute the building loads
uniformly onto the supporting subgrade. By designing a relatively stiff mat, the
settlement of the structure will be relatively uniform. The foundation should be
designed to be sufficiently rigid to prevent the introduction of excess stresses in the
superstructure above the foundation. Concrete slab -on -grade floors should be
underlain by a water vapor retarder. The water vapor retarder should consist of a
vapor retarder sheeting underlain by a minimum of 3 inches of compacted, clean,
gravel of 0.75 inch-maximum_ size. The granular fill should consist of damp clean
sand with at least 10 to 30 percent of the sand passing the 100 sieve. The sand
should be free of clay, silt, or organic material. Concrete slabs should be reinforced
with at least No. 3 reinforcing bars, places at 18 inches on center in each direction
within the slabs middle third. Ultimately, the foundation shall be designed in
accordance with the final geotechnical report.
8. MM GEO -2a The means and methods of installation, design and implementation
of the shoring system shall be the responsibility of a licensed shoring engineer and
general contractor who shall satisfy the requirements of City of Santa Monica
Building & Safety and Public Works officials as well as applicable codes and laws.
Whenever excavation is made adjacent to existing streets, utilities and structures,
there is the potential for movement. The existing structures should be inspected and
documented to preclude claims for damage or settlement that are not associated with
the construction of the planned development. A monitoring program should be
established so excessive movement is detected early. The monitoring program
should include optical surveying of the. shoring and adjacent streets and buildings to
detect any horizontal or vertical movement.
9. MM IIAZ -2a Prior to any the issuance of a demolition permit, the contractor shall
follow all applicable local, state and federal codes and regulations related to the
treatment,. handling, and disposal of ACM and LBP.
10. MM NOI -la Construction Noise Management Plan. A Construction Noise
Management Plan shall be prepared and approved by the City. The Plan would
address noise and, -- vibration _impacts and outline measures that would be used to
reduce impacts -. measures :wauLdinclude:
• To the extent that they exceed applicable construction noise limits,
excavation, foundation- laying, and conditioning activities shall be restricted to
between the hours of 10:00 a.m. and 3:00 p.m., Monday through Friday, in
accordance with Section 4.12.110(d) of the Santa Monica Municipal Code.
• The Applicant's construction contracts shall require implementation of the
following construction best management practices (BMPs) by all construction
contractors and subcontractors working in or around the project sites to reduce
construction noise levels:
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
66
The Applicant and its contractors and subcontractors shall ensure that
construction equipment is properly muffled according to manufactures
specifications or as required by the City's Department of Building and
Safety, whichever is the more stringent.
The Applicant and its contractors and subcontractors shall place noise -
generating construction equipment and locate construction staging areas
away from sensitive uses, where feasible, to the satisfaction of the
_ Department. of Building and Safety.
The Applicant and its contractors and subcontractors shall implement noise
attenuation measures which may include, but are not limited to, noise
barriers or noise blankets to the satisfaction of the City's Department of
Building and Safety.
• The Applicant's contracts with its construction contractors and
subcontractors shall include the requirement that construction staging areas,
construction worker parking and the operation of earthmoving equipment within the
project sites, are located as far away from vibration- and noise - sensitive sites as
possible. Contract provisions incorporating the above requirements shall be included
as part of the projects' construction documents, which shall be reviewed and
approved by the City.
• The Applicant shall require by contract specifications that heavily loaded
bucks used during construction shall be routed away from residential streets to the
extent possible. Contract specifications shall be included in the proposed projects'
construction documents, which shall be reviewed by the City prior to issuance of a
grading permit.
• Meetings shall be coordinated with the management of neighboring
buildings. such as Step Up on Fifth, Luxe, @ 1548, Luxe @ 1539, Silvercrest
Retirement Home, and the Colorado Court Building to seek solutions to minimize
noise impacts. Additionally, neighboring residents would be notified of the
construction schedule and upcoming high level noise events.
MN1 N01II 2a =If project construction uses pile driving or vibratory techniques for
foundation construction and construction of the Expo LRT has progressed to the
point that infrastructure is in place that may be subject to damage from vibration, the
Applicant shall install surface vibration monitors to detect vibrations that may affect
future operation of the trains. The details of the placement and reporting of the
vibration: monitors shall be developed in coordination with the Exposition
Construction Authority and Los Angeles County Metropolitan Transportation
Authority.
12. MM T -la The Applicant shall prepare, implement and maintain a Construction
Impact Mitigation Plan for review and approval prior to issuance of a building
permit to address manage traffic during construction and shall be designed to:
• Prevent traffic impacts on the surrounding roadway network
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
67
Minimize parking impacts both to public parking and access to private
parking to the greatest extent practicable
Ensure safety for both those constructing the project and the surrounding
community
® Prevent substantial truck traffic through residential neighborhoods
The Construction Impact Mitigation Plan shall be subject to review and approval by
the following City departments: Public Works, Fire, Planning and Community
Development, and Police to ensure that the Plan has been designed in accordance
with this mitigation measure. This review shall occur prior to issuance of grading or
building permits. It shall, at a minimum, include the following:
Ongoing Requirements throughout the Duration of Construction
• A detailed Construction Impact Mitigation Plan for work zones shall be
maintained. At a minimum, this shall include parking and travel lane
configurations; warning, regulatory, guide, and directional signage; and area
sidewalks, bicycle lanes, and parking lanes. The plan shall include specific
information regarding the project's construction activities that may disrupt
normal pedestrian and traffic flow and the measures to address these
disruptions. Such plans shall be reviewed and approved by the Strategic and
Transportation Planning Division prior to commencement of construction
and implemented in accordance with this approval.
• Work within the public right -of -way shall be performed between 9:00 AM
and 4:00 PM. This work includes dirt and demolition material hauling and
construction material delivery. Work within the public right -of -way outside
of these hours shall only be allowed after the issuance of an after -hours
construction permit.
• Streets and equipment shall be cleaned in accordance with established PW
requirements.
• Trucks shall only travel on a City - approved construction route. Truck
queuing/staging shall not be allowed on Santa Monica streets. Limited
queuing may occur on the construction site itself.
• An Applicant - funded on -site monitor shall be present to ensure safety when
Metro workers are in -the immediate vicinity, or when more dangerous
activities are occurring (e.g., raising of heavy equipment to roof levels). The
Plan shall identify the activities that would prompt the presence of an on -site
monitor.
• To the extent reasonably feasible, construction materials and equipment shall
be minimally visible to the public; the preferred location for materials is to
be on -site, with a minimum amount of materials within a work area in the
public right -of -way, subject to a current Use of Public Property Permit.
• Any requests for work before or after normal construction hours within the
public right -of -way shall be subject to review and approval through the After
Hours Permit process administered by the Building and Safety Division.
• Provision of off-street parking for construction workers, which may include
the use of a remote location with shuttle transport to the site, if determined
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
%3
necessary by the City of Santa Monica.
Project Coordination Elements That Shall Be Implemented Prior to Commencement
of Construction
• The Applicant shall advise the traveling public of impending construction
activities (e.g., information signs, portable message signs, media
listing/notification, and implementation of an approved Construction Impact
Mitigation Plan).
- • The Applicant- shall obtain a Use of Public Property Permit, Excavation
Permit, Sewer Permit, or Oversize Load Permit, as well as any Caltrans
permits required, for any construction work requiring encroachment into
public rights -of -way, detours, or any other work within the public right -of-
way.
• The Applicant shall provide timely notification of construction schedules to
all affected agencies (e.g., Big Blue Bus, Police Department, Fire
Department, Public Works Department, and Planning and Community
Development Department) and to all owners and residential and commercial
tenants of property within a radius of 500 feet.
• The Applicant shall coordinate construction work with affected agencies in
advance of start of work. Approvals may take up to two weeks per each
submittal.
• The Applicant shall obtain Strategic and Transportation Planning Division
approval of any haul routes for earth, concrete, or construction materials and
equipment hauling.
13. MM T -2a The applicant shall prepare a Construction Impact Mitigation Plan and
make its best faith efforts to coordinate with the Caltrans, City of Santa Monica, Los
Angeles County Metropolitan Transportation Authority, and the Exposition
Construction Authority. The final Construction Impact Mitigation Plan for the
proposed hotels shall ensure that transportation mitigation measures set forth do not
conflict with the implementation of transportation mitigation measures associated
with the Colorado Esplanade Project, Expo LRT, and 520 Colorado Avenue
Affordable housing Project. Any changes to the construction or building plans that
may impact the Expo LRT railroad right -of -way shall be communicated in writing
by the Applicant or their contractor to Los Angeles County Metro and the
Exposition Construction Authority.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
69
SECTION B — CONDITIONS OF APPROVAL
Project Specific Conditions
The project shall provide the Significant Project Features and LUCE Community
Benefits as established in Section 2.7 of this Agreement.
2. All vehicular areas shall be monitored by hotel staff to ensure that no queuing of
delivery, taxi, or passenger vehicles impede the pedestrian path of travel on the
adjacent sidewalk or block travel lanes along 5th Street as a result of vehicle
loading and unloading operations, or valet operations on the site. Vehicles are
prohibited from reversing onto 5th Street from the driveway.
3. In conjunction with Condition No. 2, the City shall monitor the performance of
Exhibit I, Parking and Deliveries Management Plan, during the first two years of
the hotel's operation. The City and Developer shall meet bi- annually during this
initial two -year monitoring period to evaluate the Parking and Deliveries
Management Plan. In the event of vehicle queuing impeding the pedestrian path
of travel on the adjacent sidewalk or blocking travel lanes along 5th Street as a
result of vehicle loading and unloading operations, or valet operations on the site,
the City may impose amendments to the Parking and Deliveries Management
Plan that would include operational measures or physical enhancements to help
the developer achieve compliance with Condition No. 2. This may include, but is
not limited to, changes in parking pricing schedule, additional signage on
property, physical barriers to control traffic on site, alterations to the parking
layout, and staffing changes. Amendments to the Parking and Deliveries
Management Plan shall be considered a minor modification, pursuant to
Development Agreement Section 2.4.2, subject to Planning Director approval.
After the initial two years, the City shall monitor the performance of the Parking
"arid` - Deliveries Management Plan annually as a part of the Development
" '`Agreement's Annual Compliance Report. ' Furthermore, the City may continue to
amend the Parking and Deliveries Management Plan on an ongoing basis
throughout the year if queuing occurs impeding the pedestrian path of travel on
the adjacent sidewalk or blocking travel lanes along 5th Street as a result of
vehicle loading and unloading operations, or valet operations on the site, to ensure
compliance with Condition No. 2.
4. Deliveries along the Fifth Court Alley, in conjunction with the hotel use or the
leasable space located on the ground floor, shall occur only between the hours of
loam -2pm daily. The City shall monitor the performance of the Fifth Court
deliveries biannually for the first two years of the hotel operation to ensure that
the deliveries do not unreasonably impede vehicular circulation or other users on
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
70
Fifth Court between Colorado Avenue (Esplanade) and Broadway: At its
discretion, the City may impose a change in delivery hours, and shall be
considered a minor modification (whether more restrictive or less restrictive),
pursuant to Development Agreement Section 2.4.2, subject to Planning Director
approval. In no event shall the City impose delivery restrictions that make it
infeasible to operate the businesses in the Project.
5. To best accommodate peak parking demand generated by the hotel and to ensure
compliance with Condition No. 2, valet or attendant parking service shall be
provided between 6pm -9am daily in the event the Leasable Space is occupied by
an Incidental Food Service operator. In order to confirm actual peak parking
demand, the developer shall prepare and submit a parking occupancy study
biannually for the first two years of hotel operation. The study shall include
hourly count data from two Thursdays and two Saturdays between the hours of 6
am and midnight. The days selected for study will be approved by the City in
advance and the study data will be submitted to the City no less than four (4)
weeks in advance of a biannual status meeting to be established for the first two
(2) years of hotel operation and for the first two (2) years of the commencement
of any Incidental Food Service operations in the Leasable Space. The
requirement for valet/parking attendant operations may be revisited, reduced
and /or eliminated in concert with the City based on the results of a parking
occupancy study. Valet/attendant parking service hours may be amended,
pursuant to Development Agreement Section 2.4.2, subject to Planning Director
approval.
CITY PLANNING
Administrative Conditions
6. In the event Developer violates or fails to comply with any conditions of approval
of this permit, no further permits, licenses, approvals or certificates of occupancy
shall be issued until such violation has been fully remedied.
Conformance with Approved Plans
7. This approval is for those plans dated 11/1/13, a copy of which is attached to the
Development Agreement as Exhibit B. Project development shall be consistent
with such plans, except as otherwise specified in these conditions of approval.
8. Minor amendments to the plans shall be subject to approval by the Director of
Planning. A significant change in the approved concept shall be subject to review
as provided in the Development Agreement. Construction shall be in conformance
with the plans submitted or as modified in accordance with the Development
Agreement. Notwithstanding the foregoing, hotel room configurations,
circulation, back of house operations, guest amenities and lobby configuration
501 ColoradoDAgmt. 1001 LKLK
Final: November 26, 2013
71
may be amended from time to time in the sole and absolute discretion of the
developer or hotel operator.
9. Except as otherwise provided by the Development Agreement, project plans shall
be subject to complete Code Compliance review when the building plans are
submitted for plan check and shall comply with all applicable provisions of
Article IX of the Municipal Code and all other pertinent ordinances and General
Plan policies of the City of Santa Monica prior to building permit issuance.
Project Operations
10. The operation of the project shall at all times be conducted in a manner not
detrimental to surrounding properties or residents by reason of lights, noise,
activities, parking or other actions.
11. The project shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
Final Design
12. Plans for final design, landscaping, screening, trash enclosures, and signage in the
new project shall be subject to review and approval by the Architectural Review
Board. Given the prominent location of the two hotels, the Architecture Review
Board shall pay particular attention to ensure exceptional design on all four sides
of the building, resulting in the best possible design. Also in its project review,
the Architectural Review Board shall pay particular attention to the quality of
building materials and the extent of glazing along the ground floor frontage on
Colorado Avenue.
13. Landscaping plans in the new project shall comply with Subchapter 9.04.10.04
(Landscaping Standards) of the Zoning Ordinance including use of water -
conserving landscaping materials, landscape maintenance and other standards
contained in the Subchapter.
14. Refuse areas, storage areas and mechanical equipment in the new project shall be .
screened in accordance with SMMC Section 9.04.10.02.130, 140, and 150.
Refuse areas in the new project shall be of a size adequate to meet on -site need,
including recycling. The Architectural Review Board in its, review shall pay
particular attention to the screening of such areas and equipment. Any rooftop
mechanical equipment in the new project shall be minimized in height and area,
and shall be located in such a way as to minimize noise and visual impacts to
surrounding properties. Unless otherwise approved by the Architectural Review
Board, rooftop mechanical equipment in the new project shall be located at least
five feet from the edge of the roof.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
72
15. No gas or electric meters for the new project shall be located within the required
front or street side yard setback areas. The Architectural Review Board in its
review shall pay particular attention to the location and screening of such meters.
16. Prior to consideration of the project by the Architectural Review Board, the
applicant shall review disabled access requirements with the Building and Safety
Division and make any necessary changes in the project design to achieve
compliance with such requirements. The Architectural Review Board, in its
review, shall pay particular attention to the aesthetic, landscaping, and setback
impacts of any ramps or other features necessitated by accessibility requirements.
17. As appropriate, the Architectural Review Board shall require the use of anti -
graffiti materials on surfaces likely to attract graffiti.
Construction Plan Requirements
18. Final building plans submitted for approval of a building permit shall include on
the plans a list of all permanent mechanical equipment to be placed indoors which
may be heard outdoors.
Demolition Requirements
19. Until such time as the demolition is undertaken, and unless the structure is
currently in use, the existing structure shall be maintained and secured by
boarding up all openings, erecting a security fence, and removing all debris,
bushes and planting that inhibit the easy surveillance of the property to the
satisfaction of the Building and Safety Officer and the Fire Department. Any
landscaping material remaining shall be watered and maintained until demolition
occurs.
20. Prior to issuance of a demolition permit, applicant shall prepare for Building
Division approval a rodent and pest control plan to insure that demolition and
construction activities at the site do not create pest control impacts on the project
neighborhood.
Standard Conditions
21. Mechanical equipment in the new project shall not be located on the side of the
building, unless otherwise permitted by applicable regulations. Roof locations
may be used when the mechanical. equipment.isinstalled within a sound -rated
parapet enclosure.
22. Final approval of any mechanical equipment installation will require a noise test
in compliance with SMMC Section 4.12.040. Equipment for the test shall be
provided by the owner or contractor and the test shall be conducted by the owner
or contractor. A copy of the noise test results on mechanical equipment shall be
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
73
submitted to the Community Noise Officer for review to ensure that noise levels
do not exceed maximum allowable levels for the applicable noise zone.
23. The Developer shall insure any graffiti on the site is promptly removed through
compliance with the City's graffiti removal program.
Condition Monitoring
24. Upon commencement of the project's construction, the applicant authorizes
reasonable City inspections of the property to ensure compliance with the
conditions of approval imposed by the City in approving this project and will bear
the reasonable cost of these inspections.
STRATEGIC AND TRANSPORTATION PLANNING
25. Final auto parking, bicycle parking and loading layouts specifications in the new
project shall be subject to the review and approval of the Strategic and
Transportation Planning Division:
http: / /www smgov net /uploadedFiles/ Departments /Transportation/Transportation
Management/ParkingStandards.pdf
26. As to the new project, where a driveway, garage, parking space or loading zone
intersects with the public right -of -way at the alley or sidewalk, on -site hazardous
visual obstruction triangles shall be provided in accordance with SMMC Section
9.04.10.02.090. Please reference the following standards:
http: / /www.smi4ov. net /uploadedFiles/ Departments /Transpoitation/Transportation
Management/HV O.pdf
27. Slopes of all driveways and ramps used for ingress or egress of parking facilities
shall be designed in accordance with the standards established by the Strategic
and Transportation Planning Manager but shall not exceed a twenty percent slope.
Please reference the following standards:
BIG BLUE BUS
28. For the life of the project, the Developer shall notify all tenants in writing as part
of their lease or rental agreement that, the City envisions a network of transit
services in the Downtown area that may result in public transit services operating
on any street in the Downtown area, both on streets currently used by transit or
through expansion of service to streets not currently utilized by transit. In
addition, new bus stops or bus layover zones may be established on these streets
for regular use by either the Big Blue Bus or other fixed route or specialized
transit operators. On- street parking may be removed at any time to create a bus
zone in an appropriate location for safe vehicular movement and passenger safety
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
74
regardless of business or residential adjacency. Developer, or Developer's
successor in interest, shall be responsible for ensuring this obligation is satisfied.
29. For the life of the project, the Developer shall notify all tenants in writing as part
of their lease or rental agreement that they are located within 1000 feet of a
facility used 24 hours per day, 365/6 days per year for the operation and
maintenance of the City's transit and other vehicle fleets and such adjacency may
subject them to the continuous sounds associated with operating and maintaining
a large fleet of vehicles on a daily basis. The sounds of engines, radios,
machinery, equipment, alarms, voices, compression tanks /tools, fueling and
washing activities are some but not all of the sounds that might be heard on a 24
hour daily basis. Developer, or Developer's successor in interest, shall be
responsible for ensuring this obligation is satisfied.
30. Structures that include spaces specifically intended for seniors and/or persons
with disabilities should include an appropriate space for the boarding and
alighting of this population into specialty vehicles in a safe location such that the
stopped vehicle will not interfere with traffic flow.
PUBLIC LANDSCAPE
31. During construction, street trees immediately adjacent to the project site shall be
maintained, relocated or provided as required in a manner consistent with the
City's Urban Forest Master Plan, per the specifications of the Public Landscape
Division of the Community & Cultural Services Department and the City's Tree
Code (SMMC Chapter 7.40). No street trees shall be removed without the
approval of the Public Landscape Division.
32. Prior to the issuance of a demolition permit all street trees that are adjacent to or
will be impacted by the demolition or construction access shall have tree
protection zones established in accordance with the Urban Forest Master Plan.
All tree protection zones shall remain in place until demolition and/or
construction has been completed.
33 -.- During construction replace or plant new street trees immediately adjacent to the
project site in accordance with the Urban Forest Master Plan and in consultation
with the City Arborist
OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT
34. Developer shall enroll the new project in the Savings By Design incentive
program if and where available through Southern California Edison prior to
submittal of plans for Architectural Review. Developer shall execute an incentive
agreement with Southern California Edison prior to the issuance of a building
Permit.
501 Coloradol)Agmt.1001 LKLK
Final: November 26, 2013
75
35. The project shall comply with requirements in section 8.106 of the Santa Monica
Municipal code, which adopts by reference the California Green Building
Standards Code and which adds local amendments to that Code. In addition, the
project shall meet the landscape water conservation and construction and
demolition waste diversion requirements specified in Section 8.108 of the Santa
Monica Municipal Code.
PUBLIC WORKS
General Conditions
36. Any work or use of the public right -of -way including any proposed
encroachments of on -site improvements into the public right -of- -way will
require a permit from the Public Works Department (PWD) - Administrative
Services Division.
37. Plans and specifications for all offsite improvements shall be prepared by a
Registered Civil Engineer licensed in the State of California for approval by
the City Engineer prior to issuance of a building permit.
38. Immediately after demolition and during construction, a security fence, the
height of which shall be the maximum permitted by the Zoning Ordinance,
shall be maintained around the perimeter of the lot. The lot shall be kept clear
of all trash, weeds, etc.
39. Until the completion of construction, a sign shall be posted on the property in
a manner consistent with the public hearing sign requirements, which shall
identify the address and phone number of the owner, developer and contractor
for the purposes of responding to questions and complaints during the
construction period. Said sign shall also indicate the hours of permissible
construction work.
40. Prior to the demolition of any existing structure, the applicant shall submit a
report from an industrial hygienist to be reviewed and approved as to content
and -form by the Building & Safety Division: The -report shall consist of a
hazardous materials survey for the structure proposed for demolition. The
report shall include a section on asbestos and in accordance with the South
Coast AQMD Rule 1403, the asbestos survey shall be performed by a state
Certified Asbestos Consultant (CAC). The report shall include a section on
lead, which shall be performed by a state Certified Lead Inspector /Assessor.
Additional hazardous materials to be considered by the industrial hygienist
shall include: mercury (in thermostats, switches, fluorescent light),
polychlorinated biphenyls (PCBs) (including light Ballast), and fuels,
pesticides, and batteries.
Water Resources
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
%T1
41. New connections to the sewer or storm drains require a sewer permit from the
PWD - Civil Engineering Division. New connections to storm drains owned
by Los Angeles County require a permit from the L.A. County Department of
Public Works.
42. Upon completion of construction, parking areas and structures and other
facilities generating wastewater with potential oil and grease content are
required to pretreat the wastewater before discharging to the City storm drain
or sewer system. Pretreatment will require that a clarifier or oil /water
separator be installed and maintained on site.
43. If the project involves dewatering, developer /contractor shall contact the LA
Regional Water Quality Control Board (RWQCB) to obtain an NPDES Permit
for discharge of groundwater from construction dewatering to surface water.
For more information refer to: hitp:// www .waterboards.ca.gov /losangeles/ and
search for Order # R4- 2003 -0111.
44. If required by City Engineering Division to accommodate any increased sewer
demand, prior to the issuance of the first building permit and to the extent
such a study is needed, the applicant shall submit a sewer study that shows
that the City's sewer system can accommodate the entire development.
Developer shall be responsible to upgrade any downstream deficiencies, to the
satisfaction of the Water Resources Manager, if calculations show that the
project will cause such mains to receive greater demand than currently being
experienced and than can be accommodated. Improvement plans shall be
submitted to the Engineering Division. All reports and plans shall also be
approved by the Water Resources Engineer.
45. If required by City Engineering Division to accommodate any increased water
demand, prior to the issuance of the first building permit and to the extent
such a study is needed, the applicant shall submit a water study that shows
that the City's water system can accommodate the entire development for fire
flows and all potable needs. Developer shall be responsible to upgrade any
water flow /pressure deficiencies, to the satisfaction of the Water Resources
Manager, if calculations show that the project will cause such mains to receive
greater demand than currently being experienced and than can be
accommodated. Improvement plans shall be submitted to the Engineering
Division. All reports and plans shall also be approved by the Water Resources
Engineer.
46. If required by City Engineering Division to accommodate any increased storm
water drainage demand, prior to the issuance of the first building permit and to
the extent such a study is needed, the applicant shall submit a hydrology study
of all drainage to and from the site to demonstrate adequacy of the existing
storm drain system for the entire development. Developer shall be responsible
to upgrade any system deficiencies, to the satisfaction of City Engineer, if
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
77
calculations show that the project will cause such facilities to receive greater
demand than currently being experienced and than can be accommodated. All
reports and improvement plans shall be submitted to Engineering Division for
review and approval. The study shall be performed by a Registered Civil
Engineer licensed in the State of California.
47. Absent City approval, developer shall not directly connect to a public storm
drain pipe or direct site drainage to the public alley.
48. Prior to and in conjunction with demolition of existing structures, all existing
sanitary sewer "house connections" to be abandoned, shall be removed and
capped at the "Y" connections.
49. The fire services and domestic services 3- inches or greater must be above
ground, on the applicant's site, readily accessible for testing.
50. Developer is required to meet state cross - connection and potable water
sanitation guidelines. Refer to requirements and comply with the cross -
connections guidelines available at:
http:// www. lapublichealth. org /eh/progs /cncirp /eheross.htm. Prior to issuance
of a Certificate of Occupancy, a cross- connection inspection shall be
completed.
51. All new restaurants and cooking facilities at the site are required to install
Gravity Grease Interceptors to pretreat wastewater containing grease. The
minimum capacity of the interceptor shall be determined by using table 10 -3
of the 2007 Uniform Plumbing Code, Section 1014.3. All units shall be fitted
with a standard final -stage sample box. The 2007 Uniform Plumbing Code
guideline in sizing Gravity Grease hiterceptors is intended as a minimum
requirement and may be increased at the discretion of PWD, Water Resources
Protection Program.
52. Plumbing fixtures that meet the standards for 20% water use reduction
specified in the California Green Building Standards Code are required on all
new developmeift and "remodeling where plumbing is to be added.
Urban Water Runoff Mitigation
53. To mitigate storm water and surface runoff from the project site, an Urban
Runoff Mitigation Plan shall be required by the PWD during plan check
pursuant to Municipal Code Chapter 7.10. Prior to submittal of landscape
plans for Architectural Review Board approval, the applicant shall contact
PWD to determine applicable requirements, such as:
a. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution
Ordinance for the construction phase and post construction activities;
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
78
b. Non- stormwater runoff, sediment and construction waste from the
construction site and parking areas is prohibited from leaving the site;.
c. Any sediments or materials which are tracked off -site must be removed
the same day they are tracked off -site;
d. Excavated soil must be located on the site and soil_ piles should be covered
and otherwise protected so that sediments are not tracked into the street or
adjoining properties;
e. No runoff from the construction site shall be allowed to leave the site; and
f. Drainage control measures shall be required depending on the extent of
grading and topography of the site.
g. Development sites that result in land disturbance of one acre or more are
required by the State Water Resources Control Board (SWRCB) to submit
a Storm Water Pollution Prevention Plan ( SWPPP). Effective
September 2, 2011, only individuals who have been certified by the Board
as a "Qualified SWPPP Developer" are qualified to develop and /or revise
SWPPPs. A copy of the SWPPP shall also be submitted to the PWD.
54. Prior to implementing any temporary construction dewatering or permanent
groundwater seepage pumping, a permit is required from the City Water
Resources Protection Program (WRPP). Please contact the WRPP for permit
requirements at least two weeks in advance of planned dewatering or seepage
pumping. They can be reached at (310) 458 -8235.
Public Streets & Right -of -Way
55. Prior to the issuance of a final Certificate of Occupancy for the Project, all
required offsite improvements, such as AC pavement rehabilitation,
replacement of sidewalk, curbs and gutters, installation of street trees,
lighting, etc, shall be designed and installed to the satisfaction of the Public
Works Department and Public Landscape Division.
56. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and
passable during the grading and construction phase of the project.
57. Upon completion of the project, sidewalks, curbs, gutters, paving and
driveways located immediately adjacent to the Project Site which need
replacing or removal as a result of the project or needed improvement prior to
the project, as determined by the PWD shall be reconstructed to the
satisfaction of the PWD. Design, materials and workmanship shall match the
adjacent elements. This is especially true for areas within the City that have
architectural concrete, pavers, tree wells, art elements, special landscaping,
etc.
501 ColoradoDAgmt. 100 1 LKLK
Final: November 26, 2013
79
58. Upon completion of the project, alley sections immediately adjacent to the
Project Site shall be replaced as determined by the PWD. This typically
requires full reconstruction of the alley in accordance with City of Santa
Monica standards for the full adjacent length of the property.
Utilities
59. Prior to issuance of an Excavation Permit, a Telecommunications
Investigation shall be initiated by the City of Santa Monica Information
Systems Department. The telecommunications investigation shall provide a
list of recommendations to be considered for incorporation into the project
design including, but not limited to measures associated with joust trench
opportunities, location of tie -back and other underground installations,
telecommunications conduit size and specifications, fiber optic cable
specifications, telecommunications vault size and placement and
specifications, interior riser conduit and fiber optic cable, and adjacent public
right of way enhancements. Developer shall install two Telecommunications
Vaults in either the street, alley and /or sidewalk locations dedicated solely for
City of Santa Monica use. Developer shall provide two unique,
telecommunication conduit routes and fiber optic cables from building
Telecommunications Room to Telecommunications Vaults in street, alley
and /or sidewalk. Developer will be responsible for paying for the connection
of each Telecommunications Vault to the existing City of Santa Monica fiber
optic network, or the extension of conduit and fiber optic cable for a
maximum of lkm terminating in a new Telecommunications Vault for future
interconnection with City network. The final telecommunications design
plans for the project site shall be submitted to and approved by the City of
Santa Monica Information Systems Department prior to approval of project.
a. Project shall comply with City of Santa Monica Right -of -Way
Management Ordinance No. 2129CCS, Section 3 (part), adopted 7/13/04.
60. Prior to submitting plans for plan check and as part of the plan check approval
process, Developer shall make arrangements with all affected utility
companies and indicate points of connection for all services on the site plan
drawing. During the course of constructing the project, Developer shall pay
for undergrounding of all overhead utilities, if any, within and along the
development frontages. Existing and proposed overhead utilities, if any, may
need to be relocated underground while the new project is under construction.
61. Location of Southern California Edison electrical transformer and switch
equipment/structures must be clearly shown of the development site plan and
other appropriate plans within the project limits. The SCE structures serving
the proposed development shall not be located in the public right- of:way.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
:1
Resource Recovery and Recycling
62. Development plans must show the refuse and recycling (RR) areas dimensions
to demonstrate adequate and easily accessible areas. If the RR areas are
completely enclosed, then lighting, ventilation and floor drain connected to
sewer will be required. Section 9.04.10.02.151 of the SMMC has dimensional
requirements for various sizes and types of projects. Developments that place
the RR area in subterranean garages must also provide a bin staging area on
their property for the bins to be placed for collection.
63. Contact Resource Recovery and Recycling RRR division to obtain dimensions
of the refuse recycling enclosure.
64. Prior to issuance of a building permit for the project, developer shall submit a
waste management plan, a map of the enclosure and staging areas with
dimensions and a recycling plan to the RRR Division for its approval. All
commercial businesses generating 4 cubic yards of trash per week in the new
project must have a recycling program in place for its employees and
clients /customers. Show compliance with these requirements on the building
plans. Project architect should visit the Resource Recovery and Recycling
(RRR) website or contact the RRR Division for requirements of the Waste
Management Plan and to obtain the minimum dimensions of the refuse
recycling enclosure. The recycling plan shall include:
a. List of materials such as white paper, computer paper, metal cans, and
glass to be recycled;
b. Location of recycling bins;
C. Designated recycling coordinator;
d. Nature and extent of internal and external pick -up service;
e. Pick -up schedule; and
f. Plan to inform tenants/ occupants of service.
Miscellaneous
65. For temporary excavation and shoring that includes tiebacks into the public
right -of -way, a Tieback Agreement, prepared by the City Attorney, will be
required.
501 ColoradoDAgmt.1001 ] .KLK
Final: November 26, 2013
FIE
FIRE
General Requirements
The following comments are to be included on plans if applicable.
Requirements are based on the California Fire Code (CFC), the Santa Monica Municipal
Code (SMMC) and the California Building Code (CBC).
California Fire Code/ Santa Monica Fire Department Requirements
66. A "Knox" key storage box shall be provided for ALL new construction. For
buildings, other than high -rise, a minimum of 3 complete sets of keys shall be
provided. Keys shall be provided for all exterior entry doors, fire protection
equipment control equipment rooms, mechanical and electrical rooms,
elevator controls and equipment spaces, etc. For high -rise buildings, 6
complete sets are required.
67. Santa Monica Municipal Code Chapter 8 section 8.44.050 requires an
approved automatic fire sprinkler system in ALL new construction and certain
remodels or additions. Any building that does not have a designated occupant
and use at the time fire sprinkler plans are submitted for approval, the system
shall be designed and installed to deliver a minimum density of not less than
that required for ordinary hazard, Group 2, with a minimum design area of not
less than three thousand square feet. Plans and specifications for fire sprinkler
systems shall be submitted and approved prior to system installation.
68. Buildings four or more stories in height shall be provided with not less than
one standpipe during construction.
69. The standpipe(s) shall be installed before the progress of construction is more
than 35- feet above grade. Two - and - one - half -inch valve hose connections
shall be provided at approved, accessible locations adjacent to useable stairs.
Temporary standpipes shall be capable of delivering a minimum_ demand of
500 gpm at 100 -psi residual pressure. Pumping equipment- shall be capable of
providing the required pressure and volume.
70. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum
rating of 2A- lOB:C. Extinguishers shall be located on every floor or level.
Maximum travel distance from any point in space or huildiirg shall not exceed
75 feet. Extinguishers shall be mounted on wall or installed in cabinet no
higher than 4 ft. above finished floor and plainly visible and readily accessible
or signage shall be provided.
71. An automatic fire extinguishing system complying with UL 300 shall be
provided to protect commercial -type cooking or heating equipment that
produces grease -laden vapors. A separate plan submittal is required for the
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
M
installation of the system and shall be in accordance with UFC Article 10,
NFPA 17A and NFPA 96. Provide a Class "K" type portable fire extinguisher
within 30 feet the kitchen appliances emitting grease -laden vapors.
72. Every building and/or business suite is required to post address numbers that
are visible from the street and alley. Address numbers shall be a minimum of
six (6) inches in height and contrast with their background. Suite or room
numbers shall be a minimum of four (4) inches in height and contrast with
their background. Santa Monica Municipal Code Chapter 8 Section 8.48.130
(1) (1)
73. When more than one exit is required they shall be arranged so that it is
possible to go in either direction to a separate exit, except deadends not
exceeding 20 feet, and 50 feet in fully sprinklered buildings.
74. Exit and directional signs shall be installed at every required exit doorway,
intersection of corridors, exit stairways and at other such locations and
intervals as necessary to clearly indicate the direction of egress. This
occupancy /use requires the installation of approved floor level exit pathway
marking. Exit doors shall be openable from the inside without the use of a
key, special effort or knowledge.
75. Show ALL door hardware intended for installation on Exit doors
76. In buildings two stories or more in height an approved floor plan providing
emergency procedure information shall be posted at the entrance to each
stairway, in every elevator lobby, and immediately inside all entrances to the
building. The information shall be posted so that it describes the represented
floor and can be easily seen upon entering the floor level or the building.
Required information shall meet the minimum standards established in the
Santa Monica Fire Department, Fire Prevention Division, information sheet
entitled `Evacuation Floor Plan Signs." (California Code of Regulations Title
19 Section 3.09)
77. Stairway Identification shall be rn compliance wrth'C`BC'1022.8
78. Floor -level exit signs are required in Group A, E, I, R -1, R -2 and R -4
occupancies.
79. In buildings two stories in Height at least -one elevator shall conform to the
California Building Code Chapter 30 section 3003.5a for General Stretcher
Requirements for medical emergency use.
a. The elevator entrance shall not be less than 42 inches wide by 72 inches
high.
501 ColoradoDAgmt 10017 .KLK
Final: November 26, 2013
83
b. The elevator car shall have a minimum clear distance between walls
excluding return panels of not less than 80 inches by 54 inches.
c. Medical emergency elevators shall be identified by the international
symbol (star of life) for emergency elevator use. The symbol shall be not
less than 3- inches in size.
80. Storage, dispensing or use of any flammable or combustible liquids,
flammable compressed gases or other hazardous materials shall comply with
the Uniform Fire Code. The Santa Monica Fire Department prior to any
materials being stored or used on site shall approve the storage and use of any
hazardous materials. Complete and submit a "Consolidated Permit
Application Package." Copies may be obtained by calling (310) 458 -8915.
81. Alarm- initiating devices, alarm- notification devices and other fire alarm
system components shall be designed and installed in accordance with the
appropriate standards of Chapter 35 of the Building Code, and the National
Fire Alarm Code NFPA 72. The fire alarm system shall include visual
notification appliances for warning the hearing impaired. Approved visual
appliances shall be installed in ALL rooms except private (individual) offices,
closets, etc.
82. An approved fire alarm system shall be installed as follows:
83. Group A Occupancies with an occupant load of 1,000 or more shall be
provided with a manual fire alarm system and an approved prerecorded
message announcement using an approved voice communication system.
Emergency power shall be provided for the voice communication system.
84. Group E Occupancies having occupant loads of 50 or more shall be provided
with an approved manual fire alarm system.
85. Group R -1, R -2 Apartment houses containing 16 or more dwelling units, in
building three or more stories in height R -2.1 and R -4 Occupancies shall be
provided with a' rnanual'iildrrri system: -Smoke detectors shall be provided in
all common areas and interior corridors of required exits. Recreational,
laundry, furnace rooms and similar areas shall be provided with heat
detectors.
86. Plans - and specifications- for fire alarm systems shall be submitted and
approved prior to system installation.
87. Nothing contained in the Development Agreement for this Project or these
Conditions of Approval shall prevent Developer from seeking relief pursuant
to any Application for Alternative Materials and Methods of Design and
Construction or any other relief as otherwise may be permitted and available
under the Building Code, Fire Code or any other provision of the SMMC.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
84
88. California Building Code / Santa Monica Fire Department Requirements
Occupancy Classification and Division
® If a change in occupancy or use, identify the existing and all proposed new
occupancy classifications and uses
® Assembly (A -1, A -2, A -3), Business (B), Mercantile (M), Residential (R), etc.
• Include all accessory uses
Building Height
• Height in feet (SMMC defines a High -Rise as any structure greater than 55
feet.)
• Number of stories
• Detail increase in allowable height
• Type I (II -FR.) buildings housing Group B office or Group R, Division 1
Occupancies each having floors used for human occupancy located more than
55 feet above the lowest level of fire department vehicle access shall comply
with CBC Section 403.
a. Automatic sprinkler system.
b._ Smoke- detection systems.
c. Smoke control system conforming to Chapter 9 section 909.
d. Fire alarm and communication systems.
1. Emergency voice alarm signaling_system._
2. Fire department communication system.
e. Central control station. (96 square feet minimum with a
minimum dimension of 8' ft.)
f {omitted)
g. Elevators.
h. Standby power and light and emergency systems.
i. Exits
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
85
j. Seismic consideration.
Total Floor Area of Building or Project
• Basic Allowable Floor Area
• Floor Area for each room or area
• Detail allowable area increase calculations
Corridor Construction
• Type of Construction
• Detail any and all code exceptions being used
Occupant Load Calculations
• Occupancy Classification for each room or area.
• Occupant Load Calculation for each room or area based on use or occupancy
• Total Proposed Occupant Load
Means of Egress
• Exit width calculations
• Exit path of travel
• Exit Signage and Pathway Illumination (low level exit signage)
Atria - Atria shall comply with CBC Section 404 as follows:
• Atria shall not be permitted in buildings containing Group H Occupancies.
• 1 The entire building shall be sprinklered.
• A mechanically operated smoke - control system meeting the requirements of
Section 909 and 909.9 shall be installed.
• Smoke detectors shall be installed in accordance with the Fire Code.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
FY
• Except for open exit balconies within the atrium, the atrium shall be separated
from adjacent spaces by one -hour fire- resistive construction. See exceptions to
Section 404.6.
® When a required exit enters the atrium space, the travel distance from the
doorway of the tenant space to an enclosed stairway, horizontal exit, exterior
door or exit passageway shall not exceed 200 feet.
® In other than jails, prisons and reformatories, sleeping rooms of Group I
Occupancies shall not have required exits through the atrium.
® Standby power shall be provided for the atrium and tenant space smoke -
control system. Sections 404.7 and 909.11.
• The interior finish for walls and ceilings of the atrium and all unseparated
tenant spaces shall be Class 1. Section 404.8.
Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only
contain furnishings and decorative materials with potential heat of combustion less than
9,000 Btu's per pound. All furnishings to comply with California Bureau of Home
Furnishings, Technical Bulletin 133, "Flammability Test for Seating Furniture in Public
Occupancies."
All furnishings in public areas shall comply with California Bureau of Home Furnishings,
Technical Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies."
Los Angeles County Fire
89. Fire Flow Requirements
L INTRODUCTION
A. Purpose: To provide Department standards for fire flow, hydrant spacing
and specifications.
B. Scope: Informational to the general public and instructional to all
individuals, companies, or corporations involved in the subdivision of land,
construction of buildings, or alterations and/or installation of fire protection
water systems and hydrants.
C. Author: The Deputy Chief of the Prevention Services Bureau through
the Assistant Fire Chief (Fire Marshal) of the Fire Prevention Division
is responsible for the origin and maintenance of this regulation.
D. Definitions:
1. GPM — gallons per minute
501 ColoradoDAgmt. 100 1 LKLK
Final: November 26, 2013
M
2. psi — pounds per square inch
3. Detached condominiums — single detached dwelling units on
land owned in common
4. Multiple family dwellings — three or more dwelling units
attached
II. RESPONSIBILITY
A. Land Development Unit
1. The Department's Land Development Unit shall review all
subdivisions of land and apply fire flow and hydrant spacing
requirements in accordance with this regulation and the present
zoning of the subdivision or allowed land use as approved by the
County's Regional Planning Commission or city planning
department.
B. Fire Prevention Engineering Section
1. The Department's Fire Prevention Engineering Section shall
review building plans and apply fire flow and hydrant spacing
requirements in accordance with this regulation.
III. POLICY
A. The procedures, standards, and policies contained herein are provided
to ensure the adequacy of, and access to, fire protection water and shall
be enforced by all Department persomiel.
IV. PROCEDURES
A. Land development: fire flow, duration of flow, and hydrant spacing
The following requirements apply to land development issues such as: tract
and parcel maps, conditional use permits, zone changes, lot line adjustments,
planned unit developments, etc.
1. Multiple family dwellings, hotels, high rise, commercial, industrial, etc.
a. Due to the undetermined building designs for new land
development projects (undeveloped land), the required fire flow
shall be: 5,000 GPM 5 hrs. 300 ft.
NOTE: REDUCTION IN FIRE FLOW IN ACCORDANCE
WITH TABLE 1.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
W.
b. Land development projects consisting of lots having existing
structures shall be in compliance with Table 1 (fire flow per
building size). This standard applies to multiple family
dwellings, hotels, high rise, commercial, industrial, etc.
NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT 20
POUNDS PER SQUARE INCH RESIDUAL
PRESSURE.
B. Building plans
The Department's Fire Prevention Engineering Section shall review building plans
and apply fire flow requirements and hydrant spacing in accordance with the
following:
Multiple residential, apartments, single family residences (greater than 5,000
square feet), private schools, hotels, high rise, commercial, industrial, etc. (R -1, E,
B, A, I, H, F, M, S) (see Table 1).
C. Public fire hydrant requirements
1. Fire hydrants shall be required at intersections and along access ways as
spacing requirements dictate
2. Spacing
a. All occupancies
Other than single family dwellings, such as commercial,
industrial, multi - family dwellings, private schools,
institutions, detached condominiums (five or more
units), etc.
Fire hydrant spacing shall be 300 feet.
NOTE:The following guidelines shall be used in
meeting the hydrant spacing requirements.
(1) No portion of lot frontage shall be more than
200 feet via vehicular access from a public hydrant.
(2) No portion of a building should exceed 400 feet
via vehicular access from a properly spaced public
hydrant.
b. Supplemental fire protection
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
.•
When a structure cannot meet the required public
hydrant spacing distances, supplemental fire protection
shall be required.
NOTE: Supplemental fire protection is not limited to
the installation of on -site fire hydrants; it may include
automatic extinguishing systems.
3. Hydrant location requirements - both sides of a street
Hydrants shall be required on both sides of the street whenever:
a. Streets having raised median center dividers that make access to
hydrants difficult, causes time delay, and/or creates undue hazard.
b. For situations other than those listed in "a" above, the Department's
inspector's judgment shall be used. The following items shall be
considered when determining hydrant locations:
(1) Excessive traffic loads, major arterial
route, in which traffic would be difficult to
detour.
(2) Lack of adjacent parallel public streets in
which traffic could be redirected (e.g.,
Pacific Coast Highway).
(3) Past practices in the area.
(4) Possibility of future development in the
area.
(5) Type of development (i.e., flag -lot units,
large apartment or condo complex, etc.).
(6) Accessibility to existing hydrants
(7) Possibility of the existing street having a
raised median center divider in the near
future.
D. On -Site Hydrant Requirements
1. When any portion of a proposed structure exceeds (via vehicular access)
the allowable distances from a public hydrant and on -site hydrants are
required, the following spacing requirements shall be met:
a. Spacing distance between on -site hydrants shall be 300 to 600 feet.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013 .
917
(1) Design features shall assist in allowing
distance modifications.
b. Factors considered when allowing distance modifications.
(1) Only sprinklered buildings qualify for the
maximum spacing of 600 feet.
(2) For non- sprinklered buildings,
consideration should be given to fire
protection, access doors, outside storage,
etc. Distance between hydrants should
not exceed 400 feet.
2. Fire flow
a. All on -site fire hydrants shall flow a minimum of 1,250 gallons per
minute at 20 psi for a duration of two hours. If more than one on-
site fire hydrant is required, the on -site fire flow shall be at least
2,500 gallons per minute at 20 psi, flowing from two hydrants
simultaneously. On site flow may be greater depending upon the
size of the structure and the distance from public hydrants.
NOTE: ONE OF THE TWO HYDRANTS TESTED SHALL BE
THE FARTHEST FROM THE PUBLIC WATER
SOURCE.
3. Distance from structures
All on -site hydrants shall be installed a minimum of 25 feet from a
structure or protected by a two -hour firewall.
4. Shut -off valves
All on -site hydrants shall be equipped with a shut -off (gate) valve,
which shall be located as follows: -
a. Minimum distance to the hydrant 10 feet.
b. Maximum distance from the hydrant 25 feet
5. Inspection of new installations
All new on -site hydrants and underground installations are subject
to inspection of the following items by a representative of the
Department:
a. Piping materials and the bracing and support thereof.
b. A hydrostatic test of 200 psi for two hours.
e. Adequate flushing of the installation.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
91
E.
d. Flow test to satisfy required fire flow.
(1) Hydrants shall be painted with two coats of red primer and
one coat of red paint, with the exception of the stem and
threads, prior to flow test and acceptance of the system.
6. Maintenance
It shall be the responsibility of the property management company,
the homeowners association, or the Developer to maintain on -site
hydrants.
a. Hydrants shall be painted with two coats of red primer and one coat
of red, with the exception of the stem and threads, prior to flow test
and acceptance of the system.
b. No barricades, walls, fences, landscaping, etc., shall be installed or
planted within three feet of a fire hydrant.
Public Hydrant Flow Procedure
The minimum acceptable flow from any existin public hydrant shall be 1,000
GPM unless the required fire flow is less. Hydrants used to satisfy fire flow
requirements will be determined by the following items:
1. Only hydrants that meet spacing requirements are acceptable
for meeting fire flow requirements.
2. In order to meet the required fire flow:
a. Flow closest hydrant and calculate to determine flow at 20
pounds per square inch residual pressure. If the calculated
flow does not meet the fire flow requirement, the next closest
hydrant shall be flowed simultaneously with the first
hydrant,- providing it meets the spacing requirement, etc.
b. If more than one hydrant is to be flowed in order to meet
the required fire flow, the number of hydrants shall be
flowed as follows:
One hydrant
Two hydrants
Three hydrants
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
1,250 GPM and below
1,251— 3,500 GPM flowing simultaneously
3,501— 5,000 GPM flowing simultaneously
92
F. Hydrant Upgrade Policy
1. Existing single outlet 2 1/2" inch hydrants shall be upgraded to a
double outlet 6" x 4" x 2 1/2" hydrant when the required fire flow
exceeds 1,250
GPM.
2. An upgrade of the fire hydrant will not be required if the required fire
flow is between the minimum requirement of 750 gallons per minute,
up to and including 1,250 gallons per minute, and the existing public
water system will provide the required fire flow through an existing
wharf fire hydrant.
3. All new required fire hydrant installations shall be approved
6" x 4" x 2 1/2" fire hydrants.
4. When water main improvements are required to meet GPM flow,
and the existing water main has single outlet 2 1/2" fire
hydrant(s), then a hydrant(s) upgrade will be required. This
upgrade shall apply regardless of flow requirements.
5. The owner- developer shall be responsible for making the
necessary arrangements with the local water purveyor for the
installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are not
provided (see Figures 1, 2, and 3 following on pages 11 and 12).
G. Hydrant Specifications
All required public and on -site fire, hydrants shall be installed to the
following specifications prior to flow test and acceptance of the system.
1. Hydrants shall be:
a. Installed so that the center line of the lowest outlet is
between 14 and 24 inches above finished grade
b. Installed so that the front of the riser is between 12 and 24
inches behind the curb face
C. Installed with outlets facing the curb at a 45- degree angle to
the curb line if there are double outlet hydrants
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
93
d. Similar to the type of construction which conforms to current
A.W.W.A. Standards
e. Provided with three -foot unobstructed clearance on all sides.
f. Provided with approved plastic caps
g. Painted with two coats of red primer and one coat of traffic
signal yellow for public hydrants and one coat of red for on-
site hydrants, with the exception of the stems and threads
2. Underground shut -off valves are to be located:
a. A minimum distance of 10 feet from the hydrant
b. A maximum distance of 25 feet from the hydrant
Exception: Location can be less than 10 feet when the water
main is already installed and the 10 -foot minimum distance
cannot be satisfied.
3. All new water mains, laterals, gate valves, buries, and riser shall
be a minimum of six inches inside diameter.
4. When sidewalks are contiguous with a curb and are five feet wide
or less, fire hydrants shall be placed immediately behind the
sidewalk. Under no circumstances shall hydrants be more than six
feet from a curb line.
5. The owner - developer shall be responsible for making the
necessary arrangements with the local water purveyor for the
installation of all public facilities.
6. Approved; fire hydrant barricades shall be installed if curbs are
not provided (see Figures 1, 2, and 3 following on. pages 11 and
12).
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
•,
Barricade /Clearance Details
jf CONCRETECAP
-a— & EARRICADE POST
CONCRETE PILLED
3- MIN, MIN. d" DA SCHEDULE 40
STEEL, SEE NOTE 01
�. CONCRETE
W
Figure 1
Figure 2
41 MIN,
i
r' N� r
6"x4 "x21/2" OUTLETSk
HYDRANT
t
0 38" !
0\ ® .
PLAN
FIRE HYDRANT BARRICADES
(TYPICAL)
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
95
BARR
6" x4
NYC
Figure 3
Notes:
0 0
1. Constructed of steel not less than four inches in diameter, six inches if heavy
truck traffic is anticipated, schedule 40 steel and concrete filled.
2. Posts shall be set not less than three feet deep in a concrete footing of not less
than 15 inches in diameter, with the top of the posts not less than three feet
above ground and not less than three feet from the hydrant
3. Posts, fences, vehicles, growth, trash storage and other materials or things shall
not be placed or kept near fire hydrants in a manner that would prevent fire
hydrants from being immediately discernable.
4. If hydrant is to be barricaded, no barricade shall be constructed in front of the
hydrant outlets (Figure 2, shaded area).
5. The exact location of barricades may be changed by the field inspector during a
field inspection.
6. The steel pipe above ground shall be painted a minimum of two field coats of
primer.
7. Two finish coats of "traffic signal yellow" shall be used for fire hydrant
barricades.
8. Figure 3 shows hydrant hook up during fireground operations. Notice apparatus
(hydra- assist - valve) connected to hydrant and the required area. Figure 3 shows
50 1 ColoradoDAgmt. 100 1 LKLK
Final: November 26, 2013
DO
the importance of not constructing barricades or other obstructions in front of
hydrant outlets.
H. Blue reflective hydrant markers replacement policy
1. Purpose: To provide information regarding the replacement of
blue reflective hydrant markers, following street construction or
repair work.
a. Fire station personnel shall inform Department of Public
Works Road Construction Inspectors of the importance of
the blue reflective hydrant markers, and encourage them to
enforce their Department permit requirement, that streets and
roads be returned to their original condition, following
construction or repair work.
b.
When street construction or repair work occurs within this
Department's jurisdiction, the nearest Department of Public
Works Permit Office shall be contacted. The location can be
found by searching for the jurisdiction office in the "County
of Los Angeles Telephone Directory" under "Department of
Public Works Road Maintenance Division." The importance
of the blue reflective hydrant markers should be explained,
and the requirement encouraged that the street be returned to
its original condition, by replacing the hydrant markers.
TABLE 1
BUILDING SIZE
(First —floor
Fire Flow *(1) (2) Duration Hydrant Spacing
1,000 GPM 2 hrs.
Under 3,000
sq. ft. 300 ft.
sq. ft.
sq. ft.
3,000 to 4,999
sq. ft' 1,250 GPM 2 hrs. 300 ft.
sq. ft.
5,000 to 7,999
1,500 GPM 2 hrs. 300 ft.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
97
15,000 to 19,999 sq. ft. 3,000 GPM 3 hrs. 300 ft.
sq. ft.
sq. ft.
20,000 to 24,999 sq. ft' 3,500 GPM 3 Ins. 300 ft.
sq. ft.
25,000 to 29,999 4,000 GPM 4 hrs. 300 ft.
* See applicable footnotes below:
(FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH
RESIDUAL PRESSURE)
(1) Conditions requiring additional fire flow.
a. Each story above ground level - add 500 GPM per story.
b. Any exposure within 50 feet - add a total of 500 GPM.
c. Any high -rise building (as determined by the jurisdictional building code)
the fire flow shall be a minimum of 3,500 GPM for 3 hours at 20 psi.
d. Any flow may be increased up to 1,000 GPM for a hazardous
occupancy.
(2) Reductions in fire flow shall be cumulative for type of construction and a fully
sprinklered building. The following allowances and/or additions may be made
to standard fire flow requirements:
a. A 25% reduction shall be granted for the following types of construction:
Type I -F.R, Type II -F.R., Type II one -hour, Type II -N, Type IILone -hour,
Type III -N, Type IV, Type IV one hour, and Type V one -hour. This
reduction shall be automatic and credited on all projects using these types
of construction. Credit will not be given for Type V -N structures (to a
minimum of 2,000 GPM available fire flow).
b. A 25% reduction shall be granted for fully sprinklered buildings (to a
minimum of 2,000 GPM available fire flow).
C. When determining required fire flows for structures that total 70,000
square feet or greater, such flows shall not be reduced below 3,500 GPM
at 20 psi for three hours.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
M
EXHIBIT E
SMMC ARTICLE 9 (PLANNING AND ZONING)
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
•.
EXHIBIT F -1
LOCAL HIRING PROGRAM FOR CONSTRUCTION
Local Hiring Policy For Construction. Developer shall implement a local hiring policy
(the "Local Hiring Policy ") for construction of the Project, consistent with the following
guidelines:
Pte. The purpose of the Local Hiring Policy is to facilitate the employment
by Developer and its contractors at the Project of residents of the City of Santa
Monica (the "Targeted Job Applicants "), and in particular, those residents who
are "Low- Income Individuals" (defined below).
2. Findings.
a. Approximately 73,000- 74,000 individuals work in the City. The City has
a resident labor force of approximately 56,800. However, only about one-
third (32.2 percent) of the City's resident labor force works at jobs located
in the City, with the balance working outside of the City. Consequently, a
significant portion of the City's resident and non - resident work force is
required to commute long distances to find work, causing increased traffic
on state highways, increased pollution, increased use of gas and other
fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City
are forced to leave for work very early in the morning and return late in
the evening, often leaving children and teenagers alone and unsupervised
during the hours between school and the parent return from work outside
the area.
c. Absentee parents and unsupervised youth can result in increased problems
for families, communities and the City as a whole, including, but not
limited to, increased crime, more frequent and serious injuries, poor
homework accomplishments, failing grades and increased high school
dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are
defined as low- income households or lower, with eleven percent of these
households defined as extremely low income and eight percent very low
income. Approximately 10.5% of the City's residents are unemployed.
e. By ensuring that Targeted Job Applicants are aware of and have a fair
opportunity to compete for Project jobs, this local hiring policy will
facilitate job opportunities to City residents which would expand the City's
employment base and reduce the impacts on the environment caused by
long commuting times to jobs outside the area.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
100
3. Definitions.
a. "Contract" means a contract or other agreement for the providing of any
combination of labor, materials, supplies, and equipment to the
construction of the Project that will result in On -Site Jobs, directly or
indirectly, either pursuant to the terms of such contract or other agreement
or through one or more subcontracts.
b. "Contractor" means a prime contractor, a sub - contractor, or any other
entity that enters into a Contract with Developer for any portion or
component of the work necessary to construct the Project (excluding
architectural, design and other "soft" components of the construction of
the Project).
C. "Low Income Individual" means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income.
d. "Median Income" means the median income for the Los Angeles -Long
Beach Primary Metropolitan Statistical Area, as published from time to
time by the City in connection with its Affordable Housing Production
Program pursuant to SMMC Section 9.56.
e. "On -Site Jobs" means all jobs by a Contractor under a Contract for which
at least fifty percent (50 %) of the work hours for such job requires the
employee to be at the Project site, regardless of whether such job is in the
nature of an employee or an independent contractor. On -Site Jobs shall not
include jobs at the Project site which will be performed by the Contractor's
established work crew who have not been hired specifically to work at the
Project site.
4. Priority for Targeted Job Applicants. Subject to Section 7 below in this
Exhibit "F -11" the Local Hiring Policy provides that the Targeted Job Applicants
shall be considered for each On -Site Job in the following.order of priority:
a. First Priority: Any resident of a household with no greater than 80%
Median Income that resides within the Low and Moderate Income Areas
indicated on the map attached to this Exhibit F -1;
b. Second Priority: Any resident of a household with no greater than 80%
Median Income that resides within the City; and
c. Third Priority: Any resident of a household with no greater than 80%
Median Income that resides within a five (5) mile radius of the project site.
5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs
related to the construction of the Project, by Developer and its Contractors.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
101
6. Outreach. So that Targeted Job Applicants are made aware of the availability of
On -Site Jobs, Developer or its Contractors shall advertise available On -Site Jobs
in the Santa Monica Daily Press or similar local newspaper, or similar local
media and electronically on a City- sponsored website, if such a resource exists.
In addition, Developer shall consult with and provide written notice to at least two
first source hiring organizations, which may include but are not limited to the
following:
(i) Local first source hiring programs
(ii) Trade unions
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non - profit organizations involved in referring eligible applicants for
job opportunities
7. Hiring. Developer and its prime contractor shall consider in good faith all
applications submitted by Targeted Job Applicants for On -Site Jobs, in
accordance with their respective normal hiring practices. The City acknowledges
that the Contractors shall determine in their respective subjective business
judgment whether any particular Targeted Job Applicant is qualified to perform
the On -Site Job for which such Targeted Job Applicant has applied.
8. Tenn. The Local Hiring Policy shall continue to apply to the construction of the
Project until the final certificate of occupancy for the Project has been issued by
the City.
501 ColoradoDAgmt.10017 . KLK
Final: November 26, 2013
102
r _
city m Sant< Monica
\ LOW & MODERATE
, d
INCOME AREAS
2000 Census
a > ya
;
r�
5 i �.�..a ✓ �� d
` dy Ee f Cam 1 IE
g gm
\ � a`'
fy'q t
l
=CCO e nsn' Tian 1e iiu.rce Ara
� Jv
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
103
EXHIBIT F -2
LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT
Local Hiring Policy For Permanent Employment. The Developer (if an Operator) or
Hotel /Leasable Space Operator shall implement a local hiring policy (the "Local Hiring
Policy "), consistent with the following guidelines:
Purpose. The purpose of the Local Hiring Policy is to facilitate the employment
by the Hotel and Leasable Space tenants of the Project of residents of the City of
Santa Monica (the "Targeted Job Applicants "), and in particular, those residents
who are "Low- Income Individuals" (defined below) by ensuring Targeted Job
Applicants are aware of Project employment opportunities and have a fair
opportunity to apply and compete for such jobs. The goal of this policy is local
hiring.
2. Findings.
a. Approximately 73,000- 74,000 individuals work in the City. The City has
a resident labor force of approximately 56,800. However, only about one-
third (32.2 percent) of the City's resident labor force works at jobs located
in the City, with the balance working outside of the City. Consequently, a
significant portion of the City's resident and non - resident work force is
required to commute long distances to find work, causing increased traffic
on state highways, increased pollution, increased use of gas and other
fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City
are forced to leave for work very early in the morning and return late in
the evening, often leaving children and teenagers alone and unsupervised
during the hours between school and the parent return from work outside
the area.
C. Absentee parents and unsupervised youth can result in increased problems
for families, communities and the City as a whole, including, but not
limited to, increased crime, more frequent and serious injuries, poor
homework accomplishments, failing grades and increased high school
dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are
defined as low- income households or lower, with eleven percent of these
households defined as extremely low income and eight percent very low
income. Approximately 10.5% of the City's residents are unemployed.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
104
e. By ensuring that Targeted Job Applicants are aware of and have a fair
opportunity to compete for Project jobs, this local hiring policy will
facilitate job opportunities to City residents which would expand the City's
employment base and reduce the impacts on the environment caused by
long commuting times to jobs outside the area.
3. Definitions.
a. "Hospitality Training Academy" or "HTA" means the hotel worker job
training resource program to be developed in Santa Monica through a
Taft - Hartley Labor - Management Partnership between certain local hotels,
UNITE HERE Local 11 and others to be determined.
b. Low Income Individual" means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income.
C. "Median Income" means the median income for the Los Angeles -Long
Beach Primary Metropolitan Statistical Area, as published from time to
time by the City in connection with its Affordable Housing Production
Program pursuant to SMMC Section 9.56.
d. "On -Site Jobs" means all jobs on the Project site within the non-
residential uses of greater than 1,500 gross square feet, regardless of
whether such job is in the nature of an employee or an independent
contractor.
C. "Operator" means the Hotel, Incidental Food Service operator, or
Leasable Space operators on the Project site.
4. Priority for Targeted Job Applicants. Subject to Section 7 below in this
Exhibit "F -2," the Local Hiring Policy provides that the Targeted Job Applicants
shall be considered for each On -Site Job in the following order of priority:
a. First Priority: Any resident of a household with no greater than 80%
Median Income that resides within the Low and Moderate Income Areas
indicated on the map attached to this Exhibit F -2;
b. Second Priority: Any resident of a household with no greater than 80%
Median Income that resides within the City; and
C. Third Priority: Any resident of a household with no greater than 80%
Median Income that resides within a five (5) mile radius of the project site.
For purposes of this Local Hiring Policy, the employer is authorized to rely on the
most recent year's income tax records (W -2) and proof of residency (e.g. driver's
license, utility bill, voter registration) if voluntarily submitted by a prospective job
501 ColoradoDAgmt. 100 1 LKLK
Final: November 26, 2013
105
applicant for purposes of assessing a Targeted Job Applicant's place of residence
and income.
5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs.
Notwithstanding the foregoing, the Local Hiring Policy shall not apply to
temporary employees utilized while a permanent employee is temporarily absent
or while a replacement is being actively sought for a recently - departed permanent
employee. Furthermore, the Local Hiring Policy shall not preclude the re -hiring
of a prior employee or the transfer of an existing employee from another location.
6. Recruitment.
a. Local Hiring Goal - The Developer has established a local hiring goal of
40% of the total full and part -time jobs in the Project being held by Santa
Monica residents. There shall be no penalties to the Developer, nor shall
the Developer be deemed to be in default under the Development
Agreement, if such goal is not achieved. The Developer shall report its
actual local hiring results to the City as part of its annual report as
mandated by Section 10.2 of the Development Agreement.
b. Advanced Local Recruitment - Initial Hiring for New Business. So that
Targeted Job Applicants are made aware of the availability of On -Site
Jobs, at least 30 days before recruitment ( "Advanced Recruitment
Period ") is opened up to general circulation for the initial hiring by a new
business, Operator shall advertise available On -Site Jobs in the Santa
Monica Daily Press, or Santa Monica Police Activity League or similar
organization, or similar local media and electronically on a City- sponsored
website, if such a resource exists. In addition, Developer shall consult
with and provide written notice to the HTA's program and at least two
first source hiring organizations, which may include but are not limited to
the following:
(i) Local first source hiring programs
- (ii)` "'Trade'riui'das .
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non - profit organizations involved in referring eligible
applicants for job opportunities
C. Advanced Local Recruitment - Subsequent Hiring. For subsequent
employment opportunities, the Advanced Recruitment Period for Targeted
Job Applicants can be reduced to at least 7 days before recruitment is
opened up to general circulation. Alternatively, the Developer or
501 ColoradoDAgmt.1001 l .KLK
Final: November 26, 2013
1:
Hotel /Restaurant Operator may also use an established list of potential
Targeted Job Applicants of not more than one year old.
d. Obligations After Completion of Advanced Recruitment Period. Once
these advanced local recruitment obligations have been met, Developer or
Hotel /Restaurant Operator is not precluded from advertising regionally or
nationally for employees.
7. Hiring. As part of this Local Hiring Policy, each time a new Hotel or Incidental
Food Service opens within the Project, Developer or the Operator of any new
Hotel or Incidental Food Service in the Project shall conduct at least one on -site
job fair targeted during the Advanced Recruitment Period for the intended
purpose of recruiting Targeted Job Applicants for on -site Hotel and /or Incidental
Food Service jobs. Developer or Hotel /Leasable Space Operator shall consider in
good faith all applications submitted by Targeted Job Applicants for On -Site Jobs
in accordance with their normal practice to hire the most qualified candidate for
each position and shall be make good faith efforts to hire Targeted Job Applicants
-- including, as to the Hotel and Incidental Food Service, all applications from
those Targeted Job Applicants who have completed the HTA's hospitality boot
camp -- when such Applicants are most qualified or equally qualified as other
applicants. The City acknowledges that the Developer or Hotel /Leasable Space
Operator shall determine in their respective subjective business judgment whether
any particular Targeted Job Applicant is qualified to perform the On -Site Job for
which such Targeted Job Applicant has applied.
8. Proactive Outreach. The Developer or Hotel, or Leasable Space Operator shall
designate a "First- Source Hiring Coordinator" (FHC) that shall manage all
aspects of the Local Hiring Policy. The FHC shall be responsible for actively
seeking partnerships with local first- source hiring organizations prior to
employment opportunities being available. The FHC shall also be responsible for
encouraging and making available information on first - source hiring to respective
commercial tenants of the Project. The FHC shall contact new employers on the
Project site to inform them of the available resources on first - source hiring and to
offer a means by which they can participate in the Hotel's program. In addition to
implementation of the Local Hiring Policy, the FHC can have other work duties
unrelated to the Local Hiring Policy.
9. Collective Bargaining Agreement. The provisions of this Local Hiring Policy may
be pre - empted, in full or in part, in a bona fide collective bargaining agreement,
but only if and to the extent the preemption is clear and unambiguous.
10. Term. The Local Hiring Policy shall apply for the life of the Project.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
107
`i
All
1110 �N
{ Gukgrttr5 .' §5 `
� I6ANkSS Zrot, zfi: �I.
501 ColoradoDAgmt. l 0011.KLK
Final: November 26, 2013
Gtv a Santa hbr ica
LOW &MODERATE
MCOME AREAS
2000 Census
y�y t4�y Cti �v%�G�iW tY•�;:�iMi
FEMLav RlAndxmreln[
S a
Census
Cv sw Ut BIaP. Cmcp
108
EXHIBIT G -1
HOTEL CONDITIONS TO DISPENSE ALCOHOL FROM THE SUITE SHOP
Within the small sundry shop located on the ground floor and designated as "Suite Shop"
on the Project Plans, Developer or a business operator, collectively "Shop Operator" may
sell alcoholic beverages, including beer, wine, malt beverages, and distilled spirits to
hotel patrons, on the following terms and conditions:
1. This approval is for a Type 20 (Off -Sale Beer & Wine) or Type 21 (Off -Sale
General) alcohol license only. Any request to otherwise modify the license type
shall require either a conditional use permit or a Development Agreement
amendment pursuant to Section 2.4.3 (Major Modifications).
2. The permitted hours of alcohol sales in the Suite Shop shall be:
• 9:00 AM to 12:00 AM (Daily)
3. Concurrently with filing an application with the State ABC, the Shop Operator
shall provide a copy of this signed Exhibit "G -V to the local office of the State
Alcoholic Beverage Control Department.
4. In the event the Shop Operator fails to comply with any conditions of approval of
this Exhibit, no further permits, licenses, approvals or certificates of occupancy
for the hotel shall be issued to such applicant until such violation has been fully
remedied.
5. Minor amendments to the Suite Shop as shown on the Project Plans shall be
subject to approval by the Director of Planning in accordance with Section 2.4.2
(Minor Modifications). A significant change in the approved concept for the Suite
Shop, including but not limited to, a significant increase in shelf area for alcoholic
beverages as determined by the Director of Planning, shall require either a
conditional use permit or a Development Agreement amendment pursuant to
Section 2.4.3 (Major Modifications). The Suite Shop shall be located on the
ground floor of the Hotel. The size and general configuration of the Suite Shop
shall be in substantial conformance with the plans submitted or as modified by the
Developer either during design review in response to the Architectural Review
Board (or the Planning Commission on appeal) or as a minor modification if
approved by the Director of Planning. An intensity of operation through an
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
109
increase of any alcohol shelf area by up to 25% can occur without prior approval
from the City of Santa Monica, pending State ABC approval.
6. The Suite Shop shall at all times be conducted in a manner not detrimental to
surrounding properties or residents by reason of lights, noise, activities, parking or
other actions.
7. The Shop Operator shall prohibit loitering within the Shop and shall control
unruly or inebriated guests at the Hotel.
8. Window or other signage on or in the hotel visible from the public right -of -way
that advertises beer or alcohol shall not be permitted, exclusive of the standard
packaging appearing on the alcohol products offered for sale.
9. The Shop Operator is on notice that all temporary signage is subject to the
restrictions of the City's sign ordinance included in Exhibit `B" SMCC Article 9
(Planning and Zoning) to this Agreement.
10. The Shop Operator shall employ staff whose responsibilities include patrolling the
licensed premises to ensure patrons of the hotel are not disruptive to adjoining
properties and area residents.
11. The Shop Operator shall at all times comply with the provisions of the Noise
Ordinance (SMMC Chapter 4.12).
12. Prior to commencement of alcohol sales in the Suite Shop, the Shop Operator
shall post a notice at the entry to the Suite Shop stating that the site is regulated by
a Development Agreement and the Development Agreement, which includes the
Suite Shop's alcohol - related conditions of approval is available upon request.
13. Prior to commencement of alcohol sales in the Suite Shop a security plan shall be
submitted to the Chief of Police for review and approval. The plan shall address
both physical and operational security issues related to the Suite Shop.
14. Prior to commencement of alcohol service in the Suite Shop the Shop Operator
shall participate in the Santa Monica Alcohol Awareness for Retailers Training
(S.M.A.A.R.T.) program conducted by the Santa Monica Police Department.
15. The Shop Operator authorizes reasonable City inspection of the Suite Shop to
ensure compliance with the conditions set forth-in this Exhibit "G -1" and will
bear the reasonable cost of these inspections as established by SMMC Section
501 ColoradoDAgmt. 1001 LKLK
Final: November 26, 2013
1K1
2.72.010 and Resolution No. 9905 (CCS) or any successor legislation thereto.
These inspections shall be no more intrusive than necessary to ensure compliance
with this Exhibit.
Acknowledgement of Shop Operator
I hereby agree to the above conditions of approval and acknowledge that failure to
comply with such conditions shall constitute grounds for potential revocation of the
approval to sell alcoholic beverages from the Suite Shop.
Print Name and Title Date
Signature
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
ill
EXHIBIT G -2
HOTEL CONDITIONS TO DISPENSE ALCOHOL FROM COMMON AREAS
In the Hotel common areas (including the ground floor lobby, pantry, breakfast dining
area/multi- function meeting space, lounge and the second floor terrace, spa area and deck
areas), Developer or a hotel /business operator may sell or furnish alcoholic beverages for
consumption on the following terms and conditions without obtaining a Conditional Use
Permit.
This approval is for Type 70 (On -Sale General Restrictive Service) alcohol
license only. Any request to modify the license type shall require either a
conditional use permit or a Development Agreement amendment pursuant to
Section 2.4.3 (Major Modifications).
2. Floor areas in which alcohol is served shall not exceed the following: Hotel
common areas, including the ground floor lobby, pantry, breakfast dining
area/multi- function meeting space, lounge and the second floor terrace, spa and
deck areas.
3. The seating configurations for each of the alcohol serving areas as shown on the
Project Plans shall not be altered so as to increase occupancy of those areas. The
second floor terrace, spa area and deck areas may be rearranged as appropriate for
special events or conferences.
4. Hotel employees may sell or furnish alcoholic beverages for consumption within
the common areas of the hotel premises, including the ground floor lobby, pantry,
breakfast dining area/multi- function meeting space, lounge and the second floor
terrace, spa and deck: areas, to hotel guests and their invitees between the hours of:
® Sunday through Thursday:
9:00 AM to 12:00 AM (midnight), interior common areas
9:00 AM to 12:00 AM (midnight), second floor outdoor common
areas
® Friday and Saturday:
9:00 AM to 1:00 AM (next day), interior common areas
9:00 AM to 12:00 AM (midnight), second floor outdoor common
areas
Unless the alcoholic beverages are offered to Hotel guests on a complimentary basis,
alcoholic beverage purchases pursuant to this Section 4 shall be charged to guest's room
bill or by method of payment permissible by the State's Department of Alcoholic
Beverage Control for a Type 70 alcohol license. Except for invitees or guests of Hotel
patrons, the general public shall not be able to purchase alcoholic beverages for
consumption in the Hotel common areas.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
112
5. Minor amendments to the Hotel floor areas where alcohol may be served as
shown on the Project Plans shall be subject to approval by the Director of
Planning in accordance with Section 2.4.2 (Minor Modifications). A significant
change in the approved concept for Hotel alcohol service areas or any increase in
the square footage shall require either a Conditional Use Permit or a Development
Agreement amendment pursuant to Section 2.4.3 (Major Modifications).
-- Construction of the hotel common areas where alcohol may be served shall be in
substantial conformance with the plans submitted or as modified by the Developer
either during design review in response to the Architectural Review Board (or the
Planning Commission on appeal) or as a minor modification if approved by the
Director of Planning. No expansion of any alcohol serving area, intensity of
operation of any alcohol serving area, or outdoor alcohol serving areas shall occur
without prior approval from the City of Santa Monica and State ABC (if required
by the ABC).
6. Concurrently with filing an application to the State ABC for one or more alcohol
licenses, the applicant shall provide a copy of this signed Exhibit "G -2" to the
local office of the State Alcoholic Beverage Control Department.
The operation of the hotel, including the common areas, shall at all times be
conducted in a manner not detrimental to surrounding properties or residents by
reason of lights, noise, activities, parking or other actions.
No alcoholic beverage shall be sold for consumption beyond the hotel premises
unless pursuant to an approved Conditional Use Permit.
9. The primary use of the hotel premises shall be for Hotel Use.
10. Live, non - amplified, acoustical music shall be permitted in the hotel indoor
common areas provided there is no dancing or dance floor and there is no cover
charge or minimum drink purchase requirement. No dancing or live
entertainment-is-permitted: in any of the Hotel outdoor areas:
11. No outside promoter shall be pennitted to rent or lease the hotel. No event held at
the hotel shall be advertised under another name as a nightclub or dancehall. All
private parties shall be operated through the hotel.
12. Except for special events, alcohol shall not be served in any disposable container
such as disposable plastic or paper cups.
13. The hotel operator shall control unruly or inebriated guests at the Hotel..
14. The hotel shall at all.times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
501 ColoradoDAgmt.10011. KLK
Final: November 26, 2013
113
15. Window or other comparable signage visible from the public right -of -way that
advertises beer or alcohol shall not be permitted.
16. Prior to commencement of alcohol service, a security plan shall be submitted to
the Chief of Police for review and approval. The plan shall address both physical
and operational security issues at the hotel.
-- 17. Prior to the commencement of alcohol service, the hotel operator, restaurant
operator or business operator, as applicable, shall participate in the Santa Monica
Alcohol Awareness for Retailers Training (S.M.A.A.R.T) program conducted by
the Santa Monica Police Department.
18. The Developer authorizes reasonable City inspection of the Property to ensure
compliance with the conditions set forth in this Exhibit "G -2" and will bear the
reasonable costs of these inspections as established by SMMC Section 2.72.010
and Resolution No. 9905 (CCS) or any successor legislation thereto. These
inspections shall be no more intrusive than necessary to ensure compliance with
this Section.
19. Prior to exercising the rights of this Exhibit "G -2," the applicant shall post a
notice at the hotel entry stating that the Property is regulated by a Development
Agreement and the Development Agreement, which includes the hotel's alcohol
related conditions of approval, is available upon request. This notice shall remain
posted at all time the hotel is in operation.
20. The hotel operator shall employ staff whose responsibilities include patrolling the
hotel to ensure patrons of the hotel are not disruptive to adjoining properties and
area residents.
Acknowledgement of Hotel Operator
I hereby agree to the above conditions of approval and acknowledge that failure to
comply with such conditions shall constitute grounds for potential revocation of the
approval to dispense alcoholic beverages in the hotel common areas.
Print Name and Title
Signature
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
114
Date
EXHIBIT H
INCIDENTAL FOOD SERVICE CONDITIONS TO DISPENSE ALCOHOL
Within any Incidental Food Service which may be located on the ground floor and
designated as "Leasable Space" on the Project Plans, and/or within any Incidental Food
Service operated- within the .Hotel, (collectively "Incidental Food Service ") Developer or
a business operator or the Hotel Operator, as the case may be, collectively "Operator,"
may dispense for sale or other consideration, alcoholic beverages, including beer, wine,
malt beverages, and distilled spirits for on -site consumption, on the following terms and
conditions:
1. This approval is for a Type 41 (On Sale Beer & Wine -- Eating Place) and/or 47
(On Sale General -- Eating Place) alcohol license only. Any request to otherwise
modify the license type shall require either a conditional use permit or a
Development Agreement amendment pursuant to Section 2.4.3 (Major
Modifications).
2. Seating arrangements for sit -down patrons in the Incidental Food Service shall not
exceed twenty (20) total seats. Any request for additional interior or exterior
seating shall be subject to Director of Planning approval, pursuant to Condition
No. 10 of this Exhibit H.
3. The permitted hours of alcohol consumption within any such Incidental Food
Service area shall be:
• Sunday through Thursday
9:00 AM to 1:00 AM (next day), interior seating area
9:00 AM to 12:00 AM (midnight), outdoor seating area
o Friday and Saturday
9:00 AM to 2:00 AM (next day), interior seating area
9:00 AM to 1:00 AM (next day), outdoor seating area
Complete closure and all employees shall vacate the tenant space by 2:00 AM
Sunday through Thursday, and 3:00 AM Friday and Saturday and no "after hours"
operations shall be permitted; provided, however, that such vacation of the
premises shall not apply to any Hotel operations where the Hotel Operator also
operates the Incidental Food Service.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
115
4. The primary use of the Incidental Food Service's outdoor seating area shall be for
seated consumption of food and non - alcoholic beverages. Patrons who are
standing in the outdoor seating area shall not be permitted to consume alcohol.
5. Alcoholic beverage orders shall cease 30 minutes prior to closure of the Incidental
Food Service location, or no later than the closing of the associated food service
_ of the associated business, whichever is-first.
6. Prior to commencement of alcohol service within the Incidental Food Service
location, the Operator shall post a notice at the entry stating that the premises is
regulated by a Development Agreement and the Development Agreement, which
includes the business' conditions of approval is available upon request.
7. Concurrently with filing an application with the State ABC, the Operator shall
provide a copy of this signed Exhibit "IT" to the local office of the State Alcoholic
Beverage Control Department.
8. Prior to commencement of alcohol service within the Incidental Food Service
location, the Operator shall submit a plan for approval by the City's Planning
Director regarding employee alcohol awareness training programs and policies.
The plan shall outline a mandatory alcohol awareness training program for all
Operator's employees having contact with the public and shall state
management's policies addressing alcohol consumption and inebriation. The
program shall require all such employees having contact with the public to
complete a California Department of Alcoholic Beverage Control (ABC)
sponsored alcohol awareness training program within 90 days of the effective date
of the approval by the Planning Director of the plan. In the case of new
employees, the employee shall attend the alcohol awareness training within 90
days of hiring: In the event the ABC no longer sponsors an alcohol awareness_
training program, all such employees having contact with the public shall
complete an alternative program approved by the Planning Director. The Operator
shall provide the City with an annual report regarding compliance with this
condition. The Incidental Food Service shall be subject to any future City -wide
alcohol awareness training program condition affecting similar establishments.
9. Prior to commencement of alcohol service in the Incidental Food Service, the
Operator shall also submit a plan describing the establishment's designated driver
program, which shall be offered by the Operator to the establishment's patrons.
The plan shall specify how the Operator will inform such patrons of the program,
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
116
such as offering on the menu a free non - alcoholic drink for every party of two or
more ordering more than one alcoholic beverage.
10. In the event the Operator fails to comply with any conditions of approval of this
Exhibit, no further permits, licenses, approvals or certificates of occupancy for the
Incidental Food Service shall be issued to such applicant until such violation has
been fully remedied.
11. Minor amendments to the Incidental Food Service as shown on the Project Plans
shall be subject to approval by the Director of Planning in accordance with
Section 2.4.2 (Minor Modifications). A significant change in the approved
concept for the Incidental Food Service as determined by the Director of Planning
shall require either a conditional use permit or a Development Agreement
amendment pursuant to Section 2.4.3 (Major Modifications). If alcohol is to be
served, construction of the tenant improvements for the Incidental Food Service
shall be in substantial conformance with the plans submitted or as modified by the
Developer either during design review in response to the Architectural Review
Board (or the Planning Commission on appeal) or as a minor modification if
approved by the Director of Planning. No expansion in number of seats of any
alcohol serving area, intensity of operation of any alcohol serving area, or outdoor
alcohol serving areas shall occur within the Incidental Food Service without prior
approval from the City of Santa Monica and State ABC (if required by the ABC).
12. The Incidental Food Service shall at all times be conducted in a manner not
detrimental to surrounding properties or residents by reason of lights, noise,
activities, parking or other actions.
13. No alcoholic beverage shall be sold for consumption beyond the Lessee's
premises. Notwithstanding the foregoing, if the Incidental Food Service offers
room service of meals to the hotel rooms as part of its regular operations, then
alcoholic beverages may be sold for consumption in guest rooms or adjoining
private outdoor space to hotel guests 21 years of age or older who provide proof
of age if requested by room service personnel.
14. Except for special events, alcohol shall not be served within the Incidental Food
Service in any disposable container such as disposable plastic or paper cups.
15. No more than 35% of total gross revenues per year of the Incidental Food Service
shall be from alcohol sales. The Operator shall maintain records of gross revenue
sources which shall be submitted annually to the City's Planning Division at the
501 ColoradoDAgmt.l 001 LKLK
Final: November 26, 2013
117
beginning of each calendar year after the first year of operation and also available
to the City and the State ABC upon request.
16. The primary use of the Incidental Food Service shall not be for the sale and
consumption of alcoholic beverages by patrons. Alcohol shall only be available
for purchase by patrons when food and non - alcoholic beverages are sold.
17. Bottle service shall not be available to patrons unless other food is also purchased
concurrent with the bottle service. All food items shall be available from the full
service menu. Bottle service shall mean the service of any full bottle of liquor,
wine, or beer, of more than 375 ml, along with glass ware, mixers, garnishes, etc.,
in which patrons are able to then make their own drinks or pour their own wine or
beer.
18. The Incidental Food Service shall maintain a bakery, kitchen or food - serving
counter in which a variety of food and non - alcoholic beverages is prepared or
cooked onsite.
19. The Incidental Food Service shall offer foods and non - alcoholic beverages for
sale to patrons during all hours the establishment is open for customers.
20. Any minimum purchase requirement may be satisfied by the purchase of
beverages or food.
21. Patrons shall be permitted to order food at the counter at all times the
establishment is open for business.
22. No dancing or live entertainment beyond in that allowed in the definition of
"Restaurant" contained in SMMC Section 9.04.02.030.730 shall be permitted in
the Incidental Food Service.
23. No queuing of patrons outside the premises entry or checking of identification at
that entry shall be permitted. There shall not be any age limitation imposed
restricting access to the Incidental Food Service (e.g. persons of all ages must be
allowed to enter the premises).
24. The Incidental Food Service shall not organize or participate in organized "pub -
crawl" events where participants or customers pre - purchase tickets or tokens to be
exchanged for alcoholic beverages at the premises.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
118
25. No video or other amusement machines (other than personal hand -held devices)
shall be permitted in the premises, other than personal handheld and tablet
devices.
26. The Operator shall prohibit loitering in the Incidental Food Service area by
persons who are not patrons and shall control noisy patrons leaving the premises.
27. Window or other signage on or in the Incidental Food Service visible from.the
public right -of -way that prominently advertises beer or alcohol shall not be
permitted.
28. The Operator is on notice that all temporary signage is subject to the restrictions
of the City's sign ordinance included in Exhibit "E" SMCC Article 9 (Planning
and Zoning) to this Agreement.
29. The Incidental Food Service shall at all times comply with the provisions of the
Noise Ordinance (SMMC Chapter 4.12).
30. Pursuant to SMMC Section 4.12 (Noise), establishments with amplified music
may be required to provide entrances and exits, except exits which are solely
emergency exits, designed as two -door vestibules, so that only one set of doors is
open at a time. Doors shall be of solid core design and windows shall be
constructed with double -paned glass in the event of amplified music.
31. The Incidental Food Service employees shall not perform recycling deposits,
pressure washing or other noise generating activity audible from the Property
between the hours of I IPM and 7AM.
32. Prior to commencement of alcohol service in the Incidental Food Service, a
security plan for the Incidental Food Service shall be submitted to the Chief of
Police for review and approval. The plan shall address both physical and
operational security issues.
33. Prior to commencement of alcohol service in the Incidental Food Service, the
Operator shall participate in the Santa Monica Alcohol Awareness for Retailers
Training (S.M.A.A.R.T.) program conducted by the Santa Monica Police
Department.
34. The Operator authorizes reasonable City inspection of the Incidental Food Service
premises to ensure compliance with the conditions set forth in this Exhibit "H"
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
119
and will bear the reasonable cost of these inspections as established by SMMC
Section 2.72.010 and Resolution No. 9905 (CCS) or any successor legislation
thereto. These inspections shall be no more intrusive than necessary to ensure
compliance with this Exhibit.
Acknowledgement of Incidental Food Service Operator
I hereby agree to the above conditions of approval and acknowledge that failure to
comply with such conditions shall constitute grounds for potential revocation of the
approval to dispense alcoholic beverages in the Incidental Food Service.
Print Name and Title Date
Signature
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
120
EXHIBIT I
PARKING AND DELIVERIES
MANAGEMENTPLAN
The three parking scenarios are described as follows:
SELF - PARKING OPTION GUIDELINES:
The hotel is expected to have approximately seventy-eight (78) striped parking spaces which can
be utilized by guests and employees for self - parking vehicles.
The main vehicular access to the hotel will be from a driveway located on 5`h Street. Vehicles
will enter the site and either, pull into one of the LOADING ZONE (drop -off/ check -in) spaces
on the Ground Level to check -in, drop someone off, pick someone up, or they may drive down
the ramp to subterranean parking levels P1 or P2 and park in one of the parking spaces that will
be designated for GUEST CHECK -IN ONLY. Also, Taxi's or other vehicles entering the site for
pick -up or drop -off s may proceed to the lower level and turn around, or more directly perform a
3 -point -turn at the Ground Level and exit the site.
Hotel guests and employees will access the hotel via an elevator and stairs located on levels PI
and P2.
Vehicles will exit the subterranean parking levels shall drive up the ramps to the ground level and
either, pull into one of the LOADING ZONES, or exit the site by the driveway onto 5`11 Street.
An appropriate daily, hourly and/ or usage Self - Parking Fee shall be charged to hotel guests and/
or employees for parking vehicles.
During periods when the Self- Parking Option is being utilized, all areas will be monitored by
hotel staff to ensure traffic flows and does not block public sidewalks or back -up into 5th Street.
An appropriate and comprehensive signage program will be developed and implemented.
Examples of signage might include: "SELF - PARKING FOR HOTEL GUESTS ONLY ",
"PARKING FEE APPLIES" and "NO VALET PARKING AVAILABLE AT THIS THAE ",
"GUESTS CHECK -IN, PICK -UP, DROP -OFF'S SHOULD PROCEED DOWN TO LOWER
LEVEL OF PARKING GARAGE ", "LOADING ZONE ONLY: VEHICLES SHALL NOT BE
LEFT UNATTENDED ", ETC....
VALET /ATTENDANT PARKING OPTION GUIDELINES:
The parking capacity of the hotel is expected to be increased by thirty (30) stalls by double and
tandem parking techniques when used in conjunction with either valet parking services or parking
attendant services, increasing the total parking capacity to approximately one - hundred -eight (108)
parking spaces, which can be utilized by hotel guests and employees for parking vehicles.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
121
Valet Parking Service. Vehicular access will be the same as with the Self- Parking Option, except
that all vehicles shall be greeted by a Valet Attendant either on the Ground Level, or vehicles
shall be directed below to Level P1. Hotel guests with vehicles to park shall receive a Parking
Ticket and leave their vehicle keys with the Valet Attendant. Vehicles that will not be parked,
may perform a 3- point -turn on the Ground Level, PI , and exit the site. Valets may park cars on
levels Pl and P2, as appropriate, and shall return to the Valet Station with another vehicle for a
departing guest or via an elevator located on P1 and P2. Vehicle keys and accompanying Parking
Ticket shall be placed in a designated Valet Station for retrieval at a later time.
When a hotel guest wishes to depart, they shall either contact a Valet Attendant via a hotel phone
or approach a Valet Attendant and provide their Parking Ticket. The vehicle may be retrieved
and delivered to the designated Valet Station, and cars shall exit the site by the driveway onto 5 "'
Street.
An appropriate daily, hourly and/ or usage Valet- Parking Fee shall be charged to hotel guests and/
or employees for parking vehicles.
During periods when the Valet- Parking Option is being utilized, all areas will be monitored by
hotel staff to ensure traffic flows and does not block public sidewalks or back -up into 5"' Street.
An appropriate and comprehensive signage program will be developed and implemented.
Examples of signage might include: "SELF PARKING FOR HOTEL GUESTS ONLY,
PARKING FEE APPLIES ", "NO VALET PARKING AT THIS TIME ", "LOADING ZONE
ONLY: VEHICLES SHALL NOT BE LEFT UNATTENDED ", "PROCEED TO LEVEL PI
BELOW FOR GUESTS CHECK -IN, PICK -UP, DROP- OFF'S ", "U -TURNS PERMITTED AT
LOWER LEVEL OF PARKING GARAGE ", "LOADING ZONE ONLY: VEHICLES SHALL
NOT BE LEFT UNATTENDED ", etc...
Attendant Parking. Vehicular access will be the same as with the Self - Parking Option, except
that the drivers of any vehicles that are double parked or stack parked shall be required to leave
their keys with the on -site parking attendant and would receive a Parking Ticket from the Parking
Attendant. Vehicle keys and accompanying Parking Ticket shall be placed in a designated
Parking Attendant Station for retrieval at a later time. The Parking Attendant would remain on-
site to move cars in the event a driver of a car that is blocked in wishes to depart_ from the parking
garage.
When a hotel guest wishes to depart, they would present their Parking Ticket. to the Attendant if
they left their keys at the time of arrival. The attendant would return their keys to the guest. If a
hotel guest's vehicle is blocked in by another vehicle, the Parking Attendant would retrieve that
vehicle's key from the Parking Station and move the vehicle to allow the guest to depart in their
own vehicle. All cats shall exit the site by the driveway onto 5'h Street.
During periods when the Attendant- Parking Option is being utilized, all areas will be monitored
by hotel staff to ensure traffic flows and does not block public sidewalks or back -up into 5"'
Street. An appropriate and comprehensive signage program will be developed and implemented.
Examples of signage might include: "ATTENDANT PARKING FOR HOTEL GUESTS ONLY,
PARKING FEE APPLIES ", "NO SELF - PARKING AT THIS TIME ", "GUESTS CHECK -IN,
PICK -UP, DROP -OFF'S SHOULD PROCEED DOWN TO LOWER LEVEL OF PARKING
GARAGE ", "LOADING ZONE ONLY: VEHICLES SHALL NOT BE LEFT
UNATTENDED ", ETC....
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
122
VALET PARKING, WITH SELF - PARKING OPTION GUIDELINES:
Utilizing only the lowest subterranean parking level, P2, for Valet/Attendant Parking, and P1, for
Self - Parking, it is expected that the parking capacity of each hotel is expected to be increased by
fifteen (15) stalls by double and tandem parking techniques, increasing the total parking capacity
to approximately eighty -vine (89) parking spaces, which can be utilized by hotel guests and
employees for parking vehicles.
The respective Self - Parking and Valet /Attendant Parking Options Guidelines shall be followed
for each situation as outlined above.
An appropriate daily, hourly and/ or usage Parking Fee shall be charged to hotel guests and/ or
employees for parking vehicles for both Valet and Self- Parking Options.
DELIVERIES:
Deliveries to the hotel and retail spaces will be made by delivery trucks or vans, and will occur in
the 5fl' Court alleyway and at the Ground Level LOADING ZONE accessed from the driveway
off of 5"' Street for the hotel. Deliveries in the alleyway will be limited to between the hours of
LOAM and 2PM.
501ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
123
501 ColoradoDAgmt.1001 LYLK
Final: November 26, 2013
EXHIBIT J
RESERVED
124
EXHIBIT K
CONSTRUCTION MITIGATION PLAN
Construction Period Mitigation
1. A construction period mitigation plan shall be prepared by the applicant for
approval by the PWD prior to issuance of a building permit. The approved
mitigation plan shall be posted on the site for the duration of the project
construction and shall be produced upon request. As applicable, this plan shall:
a. Specify the names, addresses, telephone numbers and business license
numbers of all contractors and subcontractors as well as the developer and
architect;
b. Describe how demolition of any existing structures is to be accomplished;
c. Indicate where any cranes are to be located for erection/construction;
d. Describe how much of the public street, alleyway, or sidewalk is proposed
to be used in conjunction with construction;
e. Set forth the extent and nature of any pile- driving operations;
f. Describe the length and number of any tiebacks which must extend under
the public right -of -way and other private properties;
g. Specify the nature and extent of any dewatering and its effect on any
adjacent buildings;
h. Describe anticipated construction - related truck routes, number of truck
trips, hours of hauling and parking location;
i. Specify the nature and extent of any helicopter hauling;
j. State whether any construction activity beyond normally permitted hours
is proposed;
k. Describe any proposed construction noise mitigation measures, including
measures to limit the duration of idling construction trucks;
1. Describe construction-period security measures including any fencing,
lighting, and security personnel;
m. Provide a grading and drainage plan;
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
125
n. Provide a construction- period parking plan which shall minimize use of
public streets for parking;
o. List a designated on -site construction manager;
p. Provide a construction materials recycling plan which seeks to maximize
the reuse/recycling of construction waste;
q. Provide -a plan regarding use of recycled and low - environmental- impact
materials in building construction; and
r. Provide a construction period urban runoff control plan.
Air Quality
2. Dust generated by the development activities shall be kept to a minimum with a
goal of retaining dust on the site through implementation of the following
measures recommended by the SCAQMD Rule 403 Handbook:
• During clearing, grading, earth moving, excavation, or transportation of cut or
fill materials, water trucks or sprinkler systems are to be used to the extent
necessary to prevent dust from leaving the site and to create a crust after each
day's activities cease.
• Vehicles hauling dirt or other construction debris from the site shall cover any
open load with a tarpaulin or other secure covering to minimize dust
emissions. Immediately after commencing dirt removal from the site, the
general contractor shall provide the City with written certification that all
trucks leaving the site are covered in accordance with this condition of
approval.
• During clearing, grading, earth moving, excavation, or transportation of cut or
fill materials, streets and sidewalks within 150 feet of the site perimeter shall
be swept and cleaned a minimum of twice weekly or as frequently as required
by the PWD.
• During construction, water trucks or sprinkler systems shall be used to keep
all areas of vehicle movement damp enough to prevent dust from leaving the
site. At a minimum, this would include wetting down such areas in the later
morning and after work is completed for the day and whenever wind exceeds
15 miles per hour.
• Soil stockpiled for more than two days shall be covered, kept moist, or treated
with soil binders to prevent dust generation.
3. Construction equipment used on the site shall meet the following conditions in
order to minimize NOx and ROC emissions:
501 Coloradol)Agmt.1001 LKLK
Final: November 26, 2013
126
o Diesel - powered equipment such as booster pumps or generators should be
replaced by electric equipment to the extent feasible; and
o The operation of heavy -duty construction equipment shall be limited to no
more than 5 pieces of equipment at one time.
Noise Attenuation
4. All diesel equipment shall be operated with closed engine doors and shall be
equipped with factory - recommended mufflers.
5. Electrical power shall be used to run air compressors and similar power tools.
6. For all noise - generating activity on the project site associated with the installation
of new facilities, additional noise attenuation techniques shall be employed to
reduce noise levels to City of Santa Monica noise standards. Such techniques
may include, but are not limited to, the use of sound blankets on noise generating
equipment and the construction of temporary sound barriers between construction
sites and nearby sensitive receptors.
Construction Period
7. Construction Moratorium: There shall be no construction
activities that require opening, closing, or blocking of streets, sidewalks, alleys, or
street parking in retail areas of the City over the holiday season that runs from the day
before Thanksgiving through January 2 "d. Exemptions are allowed for emergencies
and special conditions authorized in advance by the Director of Public Works. The
following areas are affected by this condition: Downtown (Wilshire to the 10 Freeway
and Lincoln to Ocean Avenue; Main Street (Pico to the Southerly city limit); Montana
Avenue (6th Court to 17th Street); Pico Boulevard (from the Ocean to the Easterly city
limit at Centinela).
8. Any construction related activity in the public right -of -way will
- be required to acquire the approvals by the City of Santa Monica, including but not
limited to: Use of Public Property Permits, Sewer Permits, Excavation Permits; Alley
Closure Permits, Street Closure Permits, and Temporary Traffic Control Plans.
9. Immediately after demolition and during construction, a security
fence eight feet in height shall be maintained around the perimeter of the lot. The lot
shall be kept clear of all trash, weeds, etc.
10. Vehicles hauling dirt or other construction debris from the site
shall cover any open load with a tarpaulin or other secure covering to minimize dust
emissions. Immediately after commencing dirt removal from the site, the general
contractor shall provide the City of Santa Monica with written certification that all
trucks leaving the site are covered in accordance with this condition of approval.
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
127
11. During demolition, excavation, and construction, this project
shall comply with SCAQMD Rule 403 to minimize fugitive dust and associated
particulate emission, including but not limited to the following:
12. All material excavated or graded shall be sufficiently watered to
prevent excessive amounts of dust. Watering shall occur at least three times daily with
complete coverage, preferably at the start of the day, in the late morning, and after
work is done for the day.
13. All grading, earth moving, or excavation activities shall cease
during periods of high winds (i.e., greater than 20 mph measured as instantaneous wind
gusts) so as to prevent excessive amounts of dust.
14. Soils stockpiles shall be covered.
15. Onsite vehicle speeds shall be limited to 15 mph.
16. Wheel washers shall be installed where vehicles enter and exit
the construction site onto paved roads or wash off trucks and any equipment leaving
the site each trip.
17. An appointed construction relations officer shall act as a
community liaison concerning onsite construction activity including resolution of
issues related to PM 10 generation.
18. Streets shall be swept at the end of the day using SCAQMD
Rule 1186 certified street sweepers or roadway washing trucks if visible soil is carried
onto adjacent public paved roads (recommend water sweepers with reclaimed water).
19. All active portions the construction site shall be sufficiently
watered three times a day to prevent excessive amounts of dust.
20. Developer shall prepare a notice, subject to the review by the
Director of Planning and Community- Development, that lists,-all construction
mitigation requirements, permitted hours of. ,construction, and _idQntifies ,a contact
person at City Hall as well as the developer who will respond to complaints related to
the proposed construction. The notice shall be mailed to property owners and residents
of the neighborhood within 500 feet of the Project at least five (5) days prior to the
start of construction.
21. A sign shall be posted on the property in a manner consistent
with the public hearing sign requirements which shall identify the address and phone
number of the owner and/or applicant for the purposes of responding to questions and
complaints during the construction period. Said sign shall also indicate the hours of
permissible construction work.
22. A copy of these conditions shall be posted in an easily visible
501 Colorado DAgmt.10011.KLK
Final: November 26, 2013
128
and accessible location at all times during construction at the project site. The pages
shall be laminated or otherwise protected to ensure durability of the copy.
23. No construction - related vehicles may be parked on the street at
any time or on the subject site during periods of peak parking demand. For the duration
of demolition and construction, all construction- related vehicles must be parked for
storage purposes either on -site or at on offsite location on a private lot. The offsite
location shall be approved as part of the Department of Environmental and Public
Works review of the construction period mitigation plan and by the Department of City
Planning if a Temporary Use Permit is required.
24. Construction period signage shall be subject to the approval of
the Architectural Review Board.
501 Col oradoDAgmt.10011.KLK
Final: November 26, 2013
129
EXHIBIT L
ASSIGNMENT AND ASSUMPTION AGREEMENT
Recording Requested By and
When Recorded Mail To:
HARDING LARMORE KUTCHER & KOZAL, LLP
1250 6th Street, Suite 200
Santa Monica, CA 90401
Attn: Kenneth L. Katcher
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (`Agreement ") is
made and entered into by and between , a
a
(`Assignor "), and
RECITALS
(`Assignee ")
A. The City of Santa Monica (`City ") and Assignor entered into that certain
Development Agreement dated 2013 (the "Development
Agreement "), with respect to the real property located in the City of Santa Monica, State
of California more particularly described in Exhibit "A" attached hereto (the "Project
Site ").
B. City has granted certain development approvals and permits with respect
to the development of the Project Site, including without limitation, approval of the
Development Agreement (collectively, the "Project Approvals ").
C. Assignor intends to sell, and Assignee intends to purchase, Assignor's
interest in the Project Site.
D. In connection with such purchase and sale, Assignor desires to transfer all
of the Assignor's right, title, and interest in and to the Development Agreement and the
Project Approvals with respect to the Project Site. Assignee desires to accept such
assignment from Assignor and assume the obligations of Assignor under the
Development Agreement and the Project Approvals with respect to the Project Site.
THEREFORE, the parties agree as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
Assignor's right, title, and interest in and to the Development Agreement and the Project
Approvals with respect to the Project Site. Assignee hereby accepts such assignment
from Assignor.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
130
2. Assumption. Assignee expressly assumes and agrees to keep, perform,
and fulfill all the terms, conditions, covenants, and obligations required to be kept,
performed, and fulfilled by Assignor under the Development Agreement and the Project
Approvals with respect to the Project Site.
3. Effective Date. The execution by City of the attached receipt for this
Agreement shall be considered as conclusive proof of delivery of this Agreement and of
the assignment and assumption contained herein. This Agreement shall be effective upon
its recordation in the Official Records of Los Angeles County, California, provided that
Assignee has closed the transaction and the transfer of the real property interest in the
Project Site has been completed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth next to their signatures below.
501 ColoradoDAgmt.1001 LKLK
Final: November 26, 2013
"ASSIGNOR"
"ASSIGNEE"
131
RECEIPT BY CITY
The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received
by the City of Santa Monica on this day of
501 ColoradoDAgmt.10011.KLK
Final: November 26, 2013
CITY OF SANTA MONICA
I:
132
Planning Director
Approved and adopted this 26th day of November, 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. 2448 (CCS) had its introduction on November 12,
2013, and was adopted at the Santa Monica City Council meeting held on
November 26, 2013, by the following vote:
Ayes: Councilmembers: Davis, Holbrook, McKeown, Vazquez
Mayor O'Connor
Noes: Councilmembers: None
Absent: Councilmembers: Winterer
Mayor Pro Tern O'Day
A summary of Ordinance No. 2448 (CCS) was duly published pursuant to
California Government Code Section 40806.
ATTEST:
Sarah P. Gorman, City Clerk