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O2463
F: \MunicipalLaw \Share \LAWS \Barry\Mini DA Ordinance City Council Meeting 7 -22 -14 Santa Monica, California ORDINANCE NUMBER 2463 (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA MONICA, A MUNICIPAL CORPORATION, AND Q6 REAL ESTATE INC., A CALIFORNIA CORPORATION WHEREAS, on December 6, 2012, Q6 Real Estate Inc., a California Corporation, hereinafter "Developer," submitted an application for a development agreement ( "Development Agreement') which involves the construction of a 33,400 square foot, 35- feet -tall automobile dealership that would include a 6,144 square -foot sales floor and offices, 507 square -foot cafe, 21 service bays, and 135 parking spaces within an enclosed surface parking area and a two -level subterranean parking garage ( "the Project'); and WHEREAS, a Draft Environmental Impact Report was prepared in January 2014 and a Final Environmental Impact Report was prepared in May 2014 analyzing the environmental effects of the Development Agreement; and WHEREAS, on July 8, 2014, the Santa Monica City Council, as Lead City Agency, reviewed the Final Environmental Impact Report in full compliance with State and City CEQA Guidelines and on that date, the City Council certified that the Final Environmental Impact Report was prepared in full compliance with State and City CEQA Guidelines; and WHEREAS, on July 8, 2014, the City Council adopted a resolution making findings necessary to approve the Project, adopting a statement of overriding considerations, and a mitigation monitoring plan; and WHEREAS, the Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan of the City of Santa Monica, as described below, and as detailed in the accompanying City Council staff report prepared for this proposed project and the exhibits thereto, including but not limited to: (a) The project is located in the General Commercial land use designation within the LUCE. The LUCE vision for General Commercial area focuses on a wide variety of commercial uses, including general commercial, auto dealers and auto repair businesses, and creates standards to ensure that these uses are attractive and have minimal impacts on existing neighborhoods. The subject site is located on Santa Monica Boulevard between 20th Street and Lincoln Boulevard, an area that is designated as the City's "auto row." New dealerships are encouraged to build showrooms adjacent to the boulevard sidewalk using the urban format, locating new car inventory, customer parking, and service facilities in either below grade or on the second floor. Consistent with LUCE Policy B5.5, the proposed project is designed specifically in the urban auto dealership format depicted in the LUCE, locating showrooms adjacent to the sidewalk and locating inventory, customer parking, and service facilities either below grade and /or in multi -story facilities to the rear or above the retail show room. 2 (b) Consistent with LUCE Policy B5.6, the urban design format is designed to minimize impacts on the adjacent residential land use by providing a 10 -foot landscaped buffer setback between the residential building and the auto dealership building. Furthermore, the location of the mechanical equipment on the roof is on the opposite side of the building at the furthest distance possible from the residential structure on the adjacent parcel. (c) The proposed project is also consistent with LUCE Policy B5.8 as it contributes to the character and pedestrian experience of the boulevard as the dealership is designed in an urban auto dealership format with the showroom adjacent to the sidewalk and the inventory, customer parking, and service facilities located below grade and on the second floor. While vehicle service and parking access is discouraged from Santa Monica Boulevard, the proposed project meets the intent of this policy by reducing the number of driveway curb cuts on Santa Monica Boulevard from two to one. The proposed curb cut would lead to a drop -off area where customers visiting the site for service would leave their vehicle with a porter to be loaded into the vehicle elevators. Customers visiting the site for sales, parts department, or the cafe would enter the site on 14th Street to park in the surface parking area. (d) In an effort to reduce traffic generation and help achieve the LUCE goal of no net new p.m. peak trips, the project would implement a Transportation Demand Management (TDM) plan is proposed. The TDM plan would reduce vehicle trips in the area and reduce associated parking demand which would be consistent with LUCE Circulation Policy T19.2 which seeks appropriate TDM requirements for new 3 development. Furthermore, the LUCE's overall land use policies include providing community benefits for the area, including but not limiting to, a transit and circulation improvement contribution and a TDM plan that provides bicycle facilities for employees. (e) The project is also consistent with other relevant goals and policies including: • Goal E8: "Allow for the expansion and improved performance of automobile dealers in Santa Monica, recognizing their contribution to the local economy and the revenue base of the General Fund." • Policy E8.4: "Encourage new automobile dealers that wish to operate in the City to consider locations on Santa Monica Boulevard east of Lincoln Boulevard and west of 20th Street." • "New and revitalized dealerships are encouraged to build showrooms adjacent to the boulevard sidewalk using the urban format, locating new car inventory, customer parking, and service facilities in multi -story facilities to the rear of the retail showroom or below grade." (LUCE p. 2.1 -37.) "As existing auto dealerships are upgraded or replaced, they are required to redevelop in an urban auto dealership format that more efficiently utilizes the site and creates a cohesive and visually attractive street front. The upgraded facilities are encouraged to be built with inventory storage, customer parking and service areas located in subterranean or multi -level parking structures at the rear of the showrooms." (LUCE p. 2.4 -15.) NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The Development Agreement by and between the City of Santa Monica, a municipal corporation, and Q6 Real Estate Inc., a California Corporation, which is attached hereto as Exhibit 1 and incorporated herein by reference, 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. 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: ) Tli i /�� /,S�, (alol MAR A JONE 1OUTRIE City Attorney 9 DEVELOPMENT AGREEMENT IN Recording Requested By: City of Santa Monica When Recorded Mail To: City of Santa Monica Santa Monica City Attorney's Office 1685 Main Street, Third Floor Santa Monica, CA 90401 Attention: Senior Land Use Attorney Space Above Line For Recorder's Use No Recording Fee Required California Government Code Section 27383 DEVELOPMENT AGREEMENT BETWEEN CITY OF SANTA MONICA AND Q6 REAL ESTATE INC. .2014 MINI of Santa Monica - 22138 7.9.14 TABLE OF CONTENTS RECITALS............................................................................... ..............................1 ARTICLE 1 DEFINITIONS ......................................................... ..............................3 ARTICLE 2 DESCRIPTION OF THE PROJECT ....................... ..............................5 2.1. General Description ................................................. ..............................5 2.2. Principal Components of the Project ....................... ..............................5 2.3. No Obligation to Develop ........................................ ..............................6 2.4. Vested Rights ........................................................... ..............................6 2.5. Permitted Uses ......................................................... ..............................8 2.6. Significant Project Features and LUCE Community Benefits ..............8 2.7. Vehicle Parking and Inventory Storage .................. .............................13 2.8. Design ..................................................................... .............................20 ARTICLE 3 CONSTRUCTION .................................................. .............................21 3.1. Construction Mitigation Plan .................................. .............................21 3.2. Construction Hours ................................................. .............................21 3.3. Outside Building Permit Issuance Date .................. .............................21 3.4. Construction Period ................................................ .............................22 3.5. Damage or Destruction ........................................... .............................22 3.6. Tiebacks .................................................................. .............................22 3.7. Construction Staging ............................................... .............................22 ARTICLE 4 PROJECT FEES, EXACTIONS, MITIGATION MEASURES AND CONDITIONS ........................................... .............................22 4.1. Fees, Exactions, Mitigation Measures and Conditions ...........................22 4.2. Conditions on Modifications ...................................... .............................22 4.3. Implementation of Mitigation Measures and Conditions of Approval...23 MINI of Santa Monica - 22138 7.9.14 ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS .................................................. .............................23 5.1. Development Standards for the Property; Existing Regulations . ........ 23 5.2. Permitted Subsequent Code Changes ..................... .............................24 5.3. Common Set of Existing Regulations ..................... .............................25 5.4. Conflicting Enactments ........................................... .............................26 5.5. Timing of Development .......................................... .............................26 ARTICLE 6 ARCHITECTURAL REVIEW BOARD ................ .............................26 6.1. Architectural Review Board Approval ................... .............................26 6.2. Expiration of ARB Approval .................................. .............................26 ARTICLE 7 CITY TECHNICAL PERMITS .............................. .............................27 7.1. Definitions ............................................................... .............................27 7.2. Diligent Action by City ........................................... .............................27 7.3. Conditions for Diligent Action by the City ............. .............................27 7.4. Duration of Technical City Permits ........................ .............................29 ARTICLE 8 AMENDMENT AND MODIFICATION ............... .............................29 8.1. Amendment and Modification of Development Agreement ............... 29 ARTICLE9 TERM ..................................................................... .............................29 9.1. Effective Date ......................................................... .............................29 9.2. Term ........................................................................ .............................29 ARTICLE 10 PERIODIC REVIEW OF COMPLIANCE ............ .............................30 10.1. City Review ............................................................ .............................30 10.2. Evidence of Good Faith Compliance ...................... .............................30 10.3. Information to be Provided to MINI of Santa Monica ........................ 30 10.4. Notice of Breach; Cure Rights ................................ .............................30 10.5. Failure of Periodic Review ..................................... .............................30 MINI of Santa Monica - 22138 7.9.14 10.6. Termination of Development Agreement ............... .............................30 10.7. City Cost Recovery ................................................. .............................31 ARTICLE 11 DEFAULT .............................................................. .............................31 11.1. Notice and Cure ...................................................... .............................31 11.2. Remedies for Monetary Default .............................. .............................32 11.3. Remedies for Non - Monetary Default ..................... .............................32 11.4. Modification or Termination of Agreement by City ............................34 11.5. Cessation of Rights and Obligations ....................... .............................35 11.6. Completion of Improvements ................................. .............................35 ARTICLE 12 MORTGAGEES ..................................................... .............................35 12.1. Encumbrances on the Property ............................... .............................35 ARTICLE 13 TRANSFERS AND ASSIGNMENTS ................... .............................37 13.1. Transfers and Assignments ..................................... .............................37 13.2. Release Upon Transfer ............................................ .............................38 ARTICLE 14 INDEMNITY TO CITY ......................................... .............................38 14.1. Indemnity ............................................................... ..............................3 8 14.2. City's Right to Defense ........................................... .............................38 ARTICLE 15 GENERAL PROVISIONS ..................................... .............................39 15.1. Notices .................................................................... .............................39 15.2. Entire Agreement; Conflicts ................................... .............................40 15.3. Binding Effect ......................................................... .............................40 15.4. Agreement Not for Benefit of Third Parties ........... .............................40 15.5. No Partnership or Joint Venture ............................. .............................40 15.6. Estoppel Certificates ............................................... .............................40 15.7. Time ........................................................................ .............................41 MINI of Santa Monica - 22138 7.9.14 15.8. Excusable Delays .................................................... .............................41 Exhibit `B" 15.9. Governing Law ....................................................... .............................42 Permitted Fees and Exactions 15.10. Cooperation in Event of Legal Challenge to Agreement ..................... 42 15.11. Attorneys' Fees ....................................................... .............................42 Local Hiring Program for Construction 15.12. Recordation ............................................................. .............................43 Exhibit "G" 15.13. No Waiver ............................................................... .............................43 Assignment and Assumption Agreement 15.14. Construction of this Agreement .............................. .............................43 15.15. Other Governmental Approvals .............................. .............................43 15.16. Venue ...................................................................... .............................44 15.17. Exhibits ................................................................... .............................44 15.18. Counterpart Signatures ............................................ .............................45 15.19. Certificate of Performance ...................................... .............................45 15.20. Interests of MINI of Santa Monica ......................... .............................45 15.21. Operating Memoranda ............................................ .............................45 15.22. Acknowledgments, Agreements and Assurance on the Part of MINI ofSanta Monica ................................................... .............................46 15.23. Not a Public Dedication .......................................... .............................46 15.24. Other Agreements ................................................... .............................47 15.25. Severability and Termination .................................. .............................47 Exhibit "A" Legal Description of Property Exhibit `B" Project Plans Exhibit "C" Permitted Fees and Exactions Exhibit "D" Mitigation Measures and Conditions of Approval Exhibit "E" SMMC Article 9 (Planning and Zoning) Exhibit "F -l" Local Hiring Program for Construction Exhibit "F -2" Local Hiring Program for Permanent Employment Exhibit "G" Construction Mitigation Plan Exhibit "H" Assignment and Assumption Agreement MINI of Santa Monica - 22138 7.9.14 Exhibit "I" City Auto Test Drive -Truck Route Map NM of Santa Monica - 22138 7.9.14 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement "), dated 2014 ( "Effective Date "), is entered into by and between Q6 REAL ESTATE INC., a California corporation ( "MINI of Santa Monica "), 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, as extended and modified, (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. MINI of Santa Monica is the owner of approximately 22,500 square feet of land located in the City of Santa Monica, State of California, commonly known as 1402 Santa Monica Boulevard and 1413 14`h Street, as more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property "). C. The City has included the Property within the General Commercial land use designation under the City's recently adopted Land Use and Circulation Element of its General Plan (the "LUCE "). The LUCE identifies the portion of Santa Monica Boulevard between Lincoln Boulevard and 201h Street, where the Property is located, as Santa Monica's "Auto Row." D. The LUCE contains goals and policies that encourage the development of new auto dealerships on Santa Monica Boulevard between Lincoln Boulevard and 20`h Street, utilizing the urban auto dealership format. These goals and policies include: 6 Goal E8: "Allow for the expansion and improved performance of automobile dealers in Santa Monica, recognizing their contribution to the local economy and the revenue base of the General Fund." • Policy E8.4: "Encourage new automobile dealers that wish to operate in the City to consider locations on Santa Monica Boulevard east of Lincoln Boulevard and west of 20th Street." ® Policy B5.5: "Ensure that new and existing auto dealerships from 20th Street to Lincoln Boulevard develop in an urban auto dealership format, locating showrooms adjacent to the sidewalk and new car inventory, customer parking and service facilities either below grade and/or in multi -story facilities to the rear of the retail showrooms." MINI of Santa Monica - 22138 7.9.14 Page 7 • "New and revitalized dealerships are encouraged to build showrooms adjacent to the boulevard sidewalk using the urban format, locating new car inventory, customer parking, and service facilities in multi -story facilities to the rear of the retail showroom or below grade." (LUCE p. 2.1 -37.) ® "As existing auto dealerships are upgraded or replaced, they are required to redevelop in an urban auto dealership format that more efficiently utilizes the site and creates a cohesive and visually attractive street front. The upgraded facilities are encouraged to be built with inventory storage, customer parking and service areas located in subterranean or multi -level parking structures at the rear of the showrooms." (LUCE p. 2.4 -15.) E. To aid in the redevelopment of the Property, the City and MINI of Santa Monica desire to allow MINI of Santa Monica to develop a new urban automobile dealership with a vehicle showroom, indoor /outdoor cafe, service /repair facility, parts department, customer and employee parking and on -site inventory storage to be included in a two -level subterranean garage. As envisioned in the LUCE, the dealership's new showroom with a high ground floor ceiling and display windows will be constructed adjacent to the sidewalk along Santa Monica Boulevard. F. On December 6, 2012, MINI of Santa Monica filed an application for a Development Agreement, pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.48.020 (the "Development Application "). The Development Application was designated by the City as Application No. DEV 12 -020. The Development Application is for the development of this new urban automobile dealership and is more fully described in this Agreement. G. On April 26, 2011, the City Council adopted Interim Ordinance No. 2356 ( "IZO "). The City Council extended and /or modified the IZO on several occasions thereafter. The IZO prohibits the issuance of permits for development projects which would constitute a Tier 2 or Tier 3 project as established pursuant to LUCE Chapter 2.1 unless developed pursuant to a development agreement adopted in accordance with SMMC Chapter 9.48. Adoption of this Agreement will allow for the issuance of permits for the Project. H. MINI of Santa Monica has paid all necessary costs and fees associated with the City's processing of the Development Application and this Agreement. I. Following filing of the Development Application, the City prepared and circulated for public review and comment a Draft Environmental Impact Report (the "DEIR ") pursuant to the California Environmental Quality Act ( "CEQA ") and designated SCH No. 2013041009. Following close of the comment period, the City prepared a Final Environmental Impact Report pursuant to CEQA (the "FEIR "). J. The primary purpose of the Project is to develop the Property with a new urban automobile dealership designed to be consistent with the LUCE's desired design characteristics for automobile dealerships. The Parties desire to enter into this MINI of Santa Monica - 22138 7.9.14 Page 2 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, (6) ensure the provisions of community benefits as envisioned in the LUCE, and (7) 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 2.6 of this Agreement. 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 June 2, 2013, the City's Architectural Review Board performed a conceptual review of the Project Plans and was generally favorable as to the design of the Building. O. On May 28, 2014, the City's Planning Commission held a duly noticed public hearing on the Development Application, this Agreement, and at such hearing, the City's Planning Commission recommended that the City Council certify the EIR and approve the Project. P. On July 8, 2014, the City Council held a duly noticed public hearing on the Development Application and this Agreement and at such hearing the City [describe CEQA action] and introduced Ordinance No. for first reading, approving this Agreement. Q. On , 2014, 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 MINI of Santa Monica - 22138 7.9.14 Page 3 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 MINI of Santa Monica as of the Effective Date. 1.2 "ARB" means the City's Architectural Review Board. 1.3 Automobile Dealership" means any business establishment which sells, leases, and or services /repairs new or used automobiles, trucks, vans, trailers, recreational vehicles, boats or motorcycles or other similar motorized transportation vehicles. Such a dealership may maintain an inventory of the vehicles for sale or lease and may provide services including facilities for the preparation, washing, repair and service of such vehicles. 1.4 "Building" means the Automobile Dealership structure containing vehicle showrooms, vehicle sales and training offices, a Cafe, service and repair facilities, a parts department and a two -level subterranean garage as shown on the Project Plans. 1.5 "Cafe" means a Restaurant, as defined in Section 9.04.02.030.730 of the SMMC, that is no larger than 550 square feet. 1.6 "Certificate of Occupancy" shall mean either temporary or permanent Certificate of Occupancy, unless otherwise expressly specified in this Agreement. 1.7 "City Council" means the City Council of the City of Santa Monica, or its designee. 1.8 "City General Plan" or "General Plan" means the General Plan of the City of Santa Monica, and all elements thereof including the LUCE, as of the Effective Date unless otherwise indicated in this Agreement. 1.9 "Discretionary Approvals" are actions which require the exercise of judgment or a discretionary decision, and which contemplate and authorize the imposition of revisions or additional conditions, by the City, including any board, commission, or department of the City and any officer or employee of the City. Discretionary Approvals do not include Ministerial Approvals. 1.10 "Effective Date" has the meaning set forth in Section 9.1 below. 1.11 "Floor Area" has the meaning as defined in Section 9.04.02.030.315 of the Zoning Ordinance. 1.12 "Floor Area Ratio" and FAR" means floor area ratio as defined in Section 9.04.02.030.320 of the Zoning Ordinance, except below grade auto dealer facilities shall be excluded. 1.13 "Including" means "including, but not limited to." MINI of Santa Monica - 22138 7.9.14 Page 4 1.14 "LEER© Rating System" means the Leadership in Energy and Environmental Design (LEED (W) Green Building Rating System for New Construction & Major Renovations adopted by the U.S. Green Building Council. 1.15 "Legal Action means any action in law or equity. 1.16 "Maximum Floor Area" means 33,750 square feet of Floor Area. 1.17 "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. 1.18 "Parties" mean both the City and MINI of Santa Monica and "Party" means either the City or MINI of Santa Monica, as applicable. 1.19 "Planning Director" means the Planning Director of the City of Santa Monica, or his or her designee. 1.20 "Project" means all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans. 1.21 "Project Plans" mean the plans for the Project that are attached to this Agreement as Exhibit `B ". 1.22 "Subterranean Space" means all space in the Project below the ground floor as shown on the Project Plans attached as Exhibit `B ". 1.23 "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, set forth in its entirety as part of Exhibit "E" (Planning and Zoning). ARTICLE 2 DESCRIPTION OF THE PROJECT 2.1. General Description. The Project includes all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans. If there is a conflict or inconsistency between the text of this Agreement and the Project Plans, the Project Plans will prevail; provided, however, that omissions from the Project Plans shall not constitute a conflict or inconsistency with the text of this Agreement. 2.2. Principal Components of the Project. The Project consists of the following principal components, as well as the other components delineated in the Project MINI of Santa Monica - 22138 7.9.14 Page 5 Plans, all of which are hereby approved by the City subject to the other provisions of this Agreement: Construction of a new Automobile Dealership Building containing vehicle showrooms, Caf6, vehicle sales and training offices, service /repair facilities, a parts department, ground level parking for customers and a two -level subterranean garage that will house parking for employees and storage of service and inventory vehicles, and facilities for preparation and servicing of vehicles as they are sold or leased or offered for sale or lease, all as shown on the Project Plans. As envisioned in the LUCE, the dealership's new showroom with a high ground floor ceiling and display windows will be constructed adjacent to the sidewalk along Santa Monica Boulevard. 2.3. No Obligation to Develop. 2.3.1. Except as specifically provided herein: (a) Nothing in this Agreement shall be construed to require MINI of Santa Monica 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 MINI of Santa Monica's sole discretion. (c) Failure by MINI of Santa Monica to proceed with construction of the Project or any portion thereof shall not give rise to any liability, claim for damages or cause of action against MINI of Santa Monica, except as may arise pursuant to a nuisance abatement proceeding under SMMC Chapter 8.96, or any successor legislation. 2.3.2. Failure by MINI of Santa Monica 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 MINI of Santa Monica'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, MINI of Santa Monica shall be required to implement all mitigation measures and conditions of approval required under this Agreement in accordance with and at the time specified in, Exhibit "D" and may be subject to all remedies specified in this Agreement for the failure to implement these mitigation measures and conditions of approval. 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 MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica - 22138 7.9.14 Page 6 drawings shall be prepared by MINI of Santa Monica subsequent to the Effective Date based upon the Project Plans. 2.4.2. Minor Modifications to Project. MINI of Santa Monica 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. MINI of Santa Monica shall not make any "Major Modifications" (defined below) to the Project without first amending this Agreement to permit such Major Modifications. A "Major Modification" means the following: (a) Reduction of any setback of the Project, as depicted on the Project Plans, if by such reduction the applicable setback would be less than is permitted in the applicable zoning district under the Zoning Ordinance in effect on the date such modification is applied for; (b) Any change in use not consistent with the permitted uses defined in Section 2.5 below; (c) Any decrease in the number of parking spaces below 73, except as authorized by Section 2.7.3; (d) Any material change in the number or location of curb cuts shown on the Project Plans; (e) Any variation in the design, massing or building configuration, including but not limited to, Floor Area and building height, that renders such aspects out of substantial compliance with the Project Plans after ARB Approval; and (1) Any change that would substantially reduce or alter the community benefits or significant project features as set forth in Section 2.6. If a proposed modification does not exceed the Major Modification thresholds established above, then the proposed modification may be reviewed in accordance with Section 2.4.2. D,M of Santa Monica - 22138 7.9.14 Page 7 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, MINI of Santa Monica 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, MINI of Santa Monica shall have the vested rights (the "Vested Rights ") to (a) develop and construct the Project in accordance with the following: (i) the Project Plans (as the same may be modified from time to time in accordance with this Agreement); (ii) any Minor Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications which are approved pursuant to Section 2.4.3; and (iv) the requirements and obligations of MINI of Santa Monica related to the improvements which are specifically set forth in this Agreement, and (b) use and occupy the Project for the permitted uses set forth in Section 2.5. Except for any required approvals from the ARB pursuant to Section 6.1 of this Agreement, the City shall have no further discretion over the elements of the Project which have been delineated in the Project Plans (as the same may be modified from time to time in accordance with this Agreement). 2.5. Permitted Uses. The City approves the following permitted uses for the Project: an Automobile Dealership including vehicle showrooms, Caf6, vehicle sales and training offices, service /repair facilities and a parts department, ground -level parking, a two -level subterranean garage providing parking and storage and facilities for preparation and servicing of vehicles as they are sold or leased or offered for sale or lease, and any other activities customarily performed at other similar dealerships, including the loading and unloading of such vehicles pursuant to Exhibit D, Section B. Such vehicles may include new or used automobiles, trucks, vans, trailers, recreational vehicles, boats and motorcycles and other motorized transportation vehicles. 2.6. Significant Project Features and LUCE Community Benefits. The significant project features and LUCE community benefits identified below in this Section 2.6 shall be achieved and developed in accordance with the terms of this Agreement. 2.6.1. Significant Project Features. Set forth below in this Section 2.6.1 are the project features that will be provided to the City, including without limitation: (a) substantial tax revenues, including vehicles sales tax, property tax, business license tax, and utility user's tax; MINI of Santa Monica - 22138 7.9.14 Page 8 (b) an urban auto dealership facility constructed pursuant to the LUCE with the building at the streetfront, the showroom along Santa Monica Boulevard, parking /inventory below - grade, and a pedestrian- oriented design to enhance the walkablility of the street; (c) enhanced architecture -- the architectural design of this MINI dealership has been tailored specifically for Santa Monica, including significant amount of glazing on the Santa Monica Boulevard and 14t" Street facades, the opening up of the project on the corner with the indoor /outdoor cafe, and the bright color of the stairs shown on the Santa Monica Boulevard fagade; (d) substantial employment opportunities ranging from entry - level to skilled positions; (e) Prior to issuance of the Certificate of Occupancy for the Project; MINI of Santa Monica shall make a childcare contribution to the City in the amount of $125,578.70. The City shall utilize this contribution to support early childhood initiatives including but not limited to infant, toddler and pre - school tuition subsidies; family support and parent engagement strategies; home visitation programs; facility and playground improvements and kindergarten readiness models. The City shall deposit such monies into a separate restricted account to be used exclusively for the early childhood initiatives as describes above through guidelines to be established by the City; (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; 0) various standard public improvements and fees; and (k) trip reduction measures as required by SMMC Chapter 9.16. 2.6.2. LUCE Community Benefits. Set forth below in this Section 2.6.2 are the community benefits that will be provided by the Project. (a) Local Hiring. A local hiring program shall be implemented within the Project in accordance with Exhibits "F -1" and "F -2 ". (b) Internship Program. MINI of Santa Monica shall make at least one paid (unless taken for school credit) internship available per semester (i.e. at least two per year) to a student who is a Santa Monica resident and attends a high school in Santa Monica or Santa Monica College. At least one internship per year shall be MINI of Santa Monica - 22138 7.9.14 Page 9 devoted to training in the Automobile Dealership's service department. MINI of Santa Monica will inform the schools that such internship shall be targeted towards students who are Santa Monica residents and whose household income is no greater than 80% of the Median Income, as defined in Exhibit "F -2" of the this Agreement. Subject to the requirements specified in this subsection (b), MINI of Santa Monica retains full discretion to select the student for the internship. (c) Community Physical Improvements. MINI of Santa Monica shall incorporate, construct, operate and maintain enhanced elements of the Building's design, including an Enhanced Walkway Area as shown on the Project Plans. MINI of Santa Monica shall make the Enhanced Walkway accessible to the public at all times, except that MINI of Santa Monica 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 MINI of Santa Monica'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, MINI of Santa Monica may limit public access to the Enhanced Walkway Area during other hours, but only if the Enhanced Walkway area is utilized for outdoor dining. The Enhanced Walkway shall remain the private property of MINI of Santa Monica 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 MINI of Santa Monica, which consent may be conditioned or withheld by MINI of Santa Monica in MINI of Santa Monica'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 MINI of Santa Monica 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 MINI of Santa Monica shall retain the right to cause persons engaging in such conduct to be removed from the Project. Should any such persons refuse to leave the Property, they may be deemed by MINI of Santa Monica to be trespassing and MINI of Santa Monica may contact local law enforcement to request that appropriate law enforcement actions be taken. MINI of Santa Monica 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. Nothing in this Section 2.6.2(c) is intended to limit the rights of any MINI of Santa Monica - 22138 7.9.14 Page 10 member of the public to use the Enhanced Walkway for any purpose which is protected by the United States Constitution, the California Constitution or any other applicable federal or California law that overrides the rights granted to MINI of Santa Monica under this Development Agreement with respect to limitations on use of the Enhanced Walkway. (d) Transportation Infrastructure Contribution. MINI of Santa Monica shall pay to the City, prior to obtaining a building permit for the Project, the sum of [one hundred eighty nine thousand, four hundred twenty four dollars and seventy -four cents ($189,424.74) to be used by the City for transportation infrastructure improvements. (e) Historic Preservation Contribution. Prior to obtaining a building permit for the Project, MINI of Santa Monica shall make a contribution in the amount of twenty thousand dollars ($20,000) for historic preservation. The City shall deposit such monies into a separate restricted account to be used exclusively for historic preservation programs 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 funds. (f) Photovoltaic Panels. Photovoltaic panels shall be installed on the rooftop in accordance with the Project Plans. (g) Sustainable Design Features. MINI of Santa Monica shall design the Building so that, at a minimum, the Building shall achieve LEEDS "Platinum" certification by the Green Building Certification Institute under the LEEDS Rating System (the "Sustainable Design Status ") including the expanded rooftop photovoltaic panel array as shown on the Project Plans. If MINI of Santa Monica has received design approval pursuant to Section 6.1 within two (2) years after the Effective Date, MINI of Santa Monica may utilize LEEDS Rating System version 3.0 dated 2009 (LEEDS NC v3 -2009) unless MINI of Santa Monica chooses, in its sole and absolute discretion, to use a subsequent version of the LEEDS Rating System. If MINI of Santa Monica has not received design approval pursuant to Section 6.1 within two (2) years of the Effective Date, then MINI of Santa Monica shall utilize the version of the LEEDS Rating System then in effect unless the City agrees that MINI of Santa Monica may utilize an earlier version of the LEEDS Rating System. MINI of Santa Monica 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, MINI of Santa Monica 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. The preliminary checklist will account for credits targeted to be achieved; however, the credits shown on the MINI of Santa Monica - 22138 7.9.14 Page 11 preliminary checklist may be subject to revision so long as the cumulative point total does not result in a lower Sustainable Design Status. (ii) Prior to or concurrent with submittal of the plan check application for the Building, MINI of Santa Monica shall: (1) Submit for review by the City an updated checklist of anticipated LEED® 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 the 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 MINI of Santa Monica has submitted an application to the Green Building Certification Institute for LEED® "Platinum" 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 MINI of Santa Monica has opened the Building or any portions thereof to the public, MINI of Santa Monica 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 MINI of Santa Monica has exhausted all administrative remedies and appeals of that denial, then MINI of Santa Monica 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 MINI of Santa Monica made a good faith effort to achieve and meet the intent of the Sustainable Design Status. Alternatively, the fine may be waived if MINI of Santa Monica commits to pursuing all necessary steps for the Building to achieve certification to the "Platinum" 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 MINI of Santa Monica fails to obtain this MINI of Santa Monica - 22138 7.9.14 Page 12 certification within this time period, the fine shall be reimposed and immediately payable to City. (h) EV Charging Stations /Conduit. MINI of Santa Monica shall in the ground floor parking area provide panel capacity and conduit stubs for installation of electrical outlets designed to allow the simultaneous charging of a minimum number of 208/240 V 40 amp, grounded AC outlets of at least 4 of the standard -sized parking spaces as shown on the Project Plans. In at least two of these spaces, MINI of Santa Monica shall, prior to issuance of a final Certificate of Occupancy, install electric charging stations with the capacity to fully charge a vehicle in an approximately two hour (or less) time period. If the Planning Director makes a determination, based on demonstrated demand by drivers at the Project, that one or both of the other two parking spaces should be equipped with electric charging stations, then MINI of Santa Monica shall install electric charging stations with the capacity to fully charge a typical vehicle in an approximately two hour (or less) time period. Such electric charging service shall be made available to the Project's customers at no charge while they are conducting business at the Project. All parking spaces with electric charging stations may be utilized without regard to vehicle type at MINI of Santa Monica's sole and absolute discretion. (i) TDM Plan. MINI of Santa Monica shall maintain and implement the following Transportation Demand Management Plan ( "TDM Plan "). Prior to issuance of a Certificate of Occupancy or Temporary Certificate of Occupancy, MINI of Santa Monica shall submit for review and approval by the Planning Director a TDM Plan as follows: (i) TDM Plan Format. MINI of Santa Monica shall submit a TDM Plan including: (1) (2) (3) (4) Transportation Coordinator (PTC); (5) City's standard form; Project description; Site conditions that affect commute travel; Annual Budget to implement TDM Plan; Duties and responsibilities of a Project Sample AVR survey, which may consist of the (6) TDM Plan Physical and Programmatic Elements; (7) Implementation Strategy that specifies how the TDM Plan will be implemented, monitored, and who will be responsible for submitting annual status reports to the City. (ii) TDM Plan Physical Elements: (1) On -Site Transportation Information. MINI of Santa Monica shall provide on -site transportation information located where the greatest number of employees are likely to see it. Such transportation information may be provided in an on -site physical location, such as a bulletin board or kiosk, or through MINI of Santa Monica - 22138 7.9.14 Page 13 other media, such as on a website or other digital means. Information shall include but is not limited to the following: a. Current maps, routes and schedules for public transit routes within one -half mile of the project site: b. Transportation information including regional ridesharing agency, local transit operators, and certified Transportation Management Organization (TMO) where available; C. Ridesharing promotions material supplied by commuter - oriented organizations; d. Regional /local bike maps and bicycle safety information as well as route and facility information within one -half mile of the project site including: rental and sales locations and bike share location and service information; e. A list of facilities available for carpoolers, vanpoolers, bicyclists, transit riders and pedestrians at the site; f Walking and biking maps for employees, which shall include but not be limited to information about convenient local services and restaurants within one -half mile of the project site; and g. Information to employees of the project regarding local rental housing agencies and opportunities. (2) Secure Bicycle Parking for Employees. MINI of Santa Monica shall provide secure long -term bicycle storage for employees as shown on the Project Plans. This shall have a capacity for a minimum of ten (10) bicycles. For the purpose of this requirement, secure bicycle parking shall mean bicycle lockers, an attended cage, or a secure parking area. (3) Convenient Customer /Visitor Bicycle Parking. MINI of Santa Monica shall provide convenient short -term bicycle parking for a minimum of ten (10) bicycles for customers and visitors of the Project. The customer /visitor bike parking shall be located on the ground floor of the Project as shown on the Project Plans or a modified location approved by the Planning Director (or his or her designee). (4) On -Site Showers 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 of getting to work or who exercise during the work day. Employees who utilize an active commute shall be given priority for utilization of locker facilities. (iii) TDM Plan Programmatic Elements: MR11 of Santa Monica - 22138 7.9.14 Page 14 (1) Project Transportation Coordinator (PTC). A PTC shall be designated for this Project by MINI of Santa Monica and provided the appropriate training as reasonably required by the City. The PTC shall be responsible for the development, administration, implementation, and monitoring of the TDM Plan, must be at the project site during normal business hours when the majority of the employees are at the project, and shall participate in City- sponsored workshops and roundtables. The PTC shall be responsible for actively encouraging and making available information materials on transportation options. The PTC 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 the physical and programmatic components of the TDM Plan. The PTC shall also regularly promote non -drive -alone options to employees by providing onsite information, including a newsletter, at least one event per year (e.g., Rideshare Week and Bike Week) and occasional marketing activities such as contests and raffles. PTC services may be provided through the TMO contemplated in Section 2.6.2(i)(iii)(10) below. The PTC and /or other designated/trained employee shall be available to assist Project Site employees with understanding the programmatic elements of the TDM Plan available to them and trip planning support. (2) Orientation. New employees shall be provided with a summary of the TDM Plan. (3) Parking Cash Out. MINI of Santa Monica shall include in any lease with a third party commercial tenant of all or any portion of the Project ( "Commercial Tenant ") a provision that such commercial tenant meet the requirements of California Health and Safety Code Section 43845 (Parking Cash Out Program) by offering a parking cash -out if an employee eligible under such Section chooses not to accept a subsidized parking space; however, in no case shall such parking cash -out be less than the monthly cost of the subsidy to employees of a parking pass. For the purposes of this Agreement, the eligibility provisions of California Health and Safety Code Section 43845 referring to minimum employee size (i.e. 50 employee minimum) shall not apply. Eligible employees of the Commercial Tenant may choose to have a portion of their parking cash -out applied to purchase of a monthly transit pass at their discretion and receive the remainder in cash. Commercial Tenants which would otherwise not be subject to California Health and Safety Code Section 43485 shall have ultimate responsibility for adherence to the Parking Cash Out requirements. Failure of such Commercial Tenant to comply with the Parking Cash Out requirement shall not constitute a Default by MINI of Santa Monica under this Agreement so long as such tenant's lease requires such compliance and MINI of Santa Monica is actively pursuing all necessary enforcement actions to bring such Commercial Tenant into compliance with this lease provision. (4) Transportation Allowance. MINI of Santa Monica shall offer a Transportation Allowance to its employees at the Project Site for the duration of employment, with the exception of part -time employees who do not regularly commute during the PM peak period. An employee accepting the Transportation Allowance shall be required to execute a contract agreeing that said employee with neither drive to work nor park within a 2.0 mile radius of the Project Site more than five MINI of Santa Monica - 22138 7.9.14 Page 15 business days per month. The contract shall also specify the employee's commute mode (e.g. transit, bike, walk). Such employees shall receive 50% of the value of a monthly regional transit pass (e.g. Metro EZ Pass or equivalent). MINI of Santa Monica may reduce or opt out of this requirement if the AVR standards in Section 2.6.2(h)(iv) below are being met based on submission of credible, quantifiable evidence that the AVR standard will continue to be met even after implementation of the change. Additionally, MINI of Santa Monica shall require any Commercial Tenant who does not subsidize the cost of a parking space for their employees to offer a transportation allowance to its employees in the amount required by this subdivision (4). Failure of any Commercial Tenant to comply with this Section shall not constitute a Default by MINI of Santa Monica under this Agreement so long as such tenant's lease requires such compliance and MINI of Santa Monica is actively pursuing all necessary enforcement actions to bring such Commercial Tenant into compliance with this lease provision. (5) Guaranteed Return Trip. MINI of Santa Monica shall provide employees who carpool, vanpool, bicycle, walk, or take transit with a return trip to the point of commute origin up to two times in a twelve month period 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 may be provided through the TMO contemplated in Section 2.6.2(i)(iii)(10) below. The PTC may register with Metro's Guaranteed Ride Home program for such commuters which shall be deemed satisfaction in full of this obligation. (6) Bike Training. Information shall be provided regarding availability of bike commute training offered either on -site or by a third party. (7) Shared Bikes. Free on -site shared bicycles intended for employee use during the workday (e.g. Bike @Work program) shall be provided unless bike share is available within a two -block radius of the project site. (8) Rideshare Matching Service. Commuter matching services for all employees on an annual basis, and for all new employees upon hiring shall be provided. (9) Customer Information and Incentive Program. A Customer Incentive and Information Program, subject to review by the Planning Director prior to Certificate of Occupancy, for customers bringing their vehicles to the Project for service or repair shall be provided. Such program shall include information about and incentives to encourage service customers to bike, walk, or take transit after dropping off their vehicle for service and on their return trip to pick up their vehicle after the servicing has been completed by MINI of Santa Monica. In addition, MINI of Santa Monica shall provide transportation information located where the greatest number of service customers are likely to see it. Such transportation information shall be provided in an on- site physical location, such as at the service advisor stations, and through other media, such as on a website or other digital means, including providing such information at the time of booking a service appointment. The transportation information shall include directions prioritizing biking, walking, transit, including walking and biking maps which MINI of Santa Monica - 22138 7.9.14 Page 16 shall include but not be limited to information about convenient local services and cafes /restaurants within one -half mile of the project site shall be provided. (10) Transportation Management Association /Organization (TMO). Active participation in the formation and ongoing activities of a TMO (if a TMO that includes the project site is established), including: attendance at organizational meetings and providing parking and travel demand data to the TMO. (iv) Average Vehicle Ridership (AVR) Standards. MINI of Santa Monica shall achieve an average vehicle ridership ( "AVR ") of 1.6 commencing from the issuance of a certificate of occupancy for the building. MINI of Santa Monica shall achieve an AVR of 1.75 by the first year after the City's issuance of a certificate of occupancy for the Building; provided, however, that if the Exposition Light Rail has not been fully operational for at least one year prior to the AVR being calculated pursuant to this Section 2.6.2(i)(iv), then the AVR target shall be 1.6 until the Memorial Park Station for the Exposition Light Rail Line has been fully operational for at least one year. Except as provided in this Agreement, SMMC Chapter 9.16 or any successor thereto shall govern how the AVR is calculated. MINI of Santa Monica will determine its AVR through employee surveys for one consecutive week each calendar year beginning the first year the Project opens for business. MINI of Santa Monica shall submit such baseline survey to the City at the time of submittal of its annual compliance report for this Agreement. (v) TDM Plan Monitoring. As a part of this Agreement's annual compliance report pursuant to Article 10 below MINI of Santa Monica shall submit an annual monitoring report on the TDM Plan implementation and performance. If during any annual evaluation of the Project's employee trip reduction plan, the AVR requirement has not been achieved for the Project, then MINI of Santa Monica shall propose modifications to the TDM Plan that MINI of Santa Monica 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. MINI of Santa Monica's failure to achieve the AVR standards shall not constitute a Default under this Agreement so long as such MINI of Santa Monica is working cooperatively with the City and taking all feasible steps to achieve compliance. The term "feasible" shall mean capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, and technological factors. The annual monitoring report shall include the following: (1) Confirmation of compliance with all TDM Plan elements. (2) AVR calculations and documentation for the monitoring year based upon cumulative employee surveys for the project undertaken for one consecutive week each year, including a sample of the employee AVR survey. MINI of Santa Monica - 22138 7.9.14 Page 17 a. AVR Survey. The survey must be taken over five consecutive five consecutive days during which the majority of employees are scheduled to arrive at or leave the worksite. The five -day survey period cannot contain a holiday, cannot occur during "Rideshare Week" or other "event" week (i.e., Bicycle Week, Walk to Work Week, Transit Week, etc.), and shall represent typical operations so that a projection of the average vehicle ridership during the year is obtained. 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. A ninety percent or better survey response rate for the a.m. or p.m. window may count the "no -survey responses" as "other" when calculating their AVR. b. AVR Calculation. The procedure for calculating AVR at a worksite shall be as follows: ® The AVR calculation shall be based on data obtained from an employee survey as defined above. AVR shall be calculated by dividing the total number of employees who report to or leave the worksite or another job - related activity during the peak periods divided by the number of vehicles driven by these employees over that five -day survey period. 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 and Zero Emission Vehicles shall be counted as vehicles. 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. If during any annual evaluation of the Project's trip reduction plan, the AVR requirement has not been achieved for the Project, then MINI of Santa Monica shall propose modifications to the TDM Plan that MINI of Santa Monica considers likely to achieve the AVR requirement by the date of the next annual evaluation of the Project's trip MINI of Santa Monica - 22138 7.9.14 Page 18 reduction plan. In addition, the City's Planning Director may recommend feasible modifications to the TDM Plan considered likely to achieve the TDM Plan. (vi) Changes to TDM Program. Subject to approval by the City's Planning Director, MINI of Santa Monica 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 MINI of Santa Monica (or proposed by the Planning Director and agreed to by MINI of Santa Monica) 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. (vii) Employer Worksite Plan Consistency. Any Employer Emission Reduction Plans and Worksite Transportation Plans, submitted by MINI of Santa Monica (pursuant to SMMC Chapter 9.16 or any successor thereto), shall be consistent with the TDM Plan, at a minimum, unless the Planning Director approves alternative plan components. (viii) 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, MINI of Santa Monica may elect to comply with the New TDM Ordinance in lieu of complying with the TDM Plan outlined in this Agreement. 0) Cafe. (i) The Project Cafe shall be open to the public at a minimum during the hours of 8:30 a.m. to 4:00 p.m., Monday - Saturday. During the minimum required hours of Cafe operation included in this Section, the Cafe shall offer a variety of food and beverage items and personnel shall be available to assist patrons of the Cafe. The Cafe shall not be open for business any earlier than 5:00 a.m. nor later than 10:00 p.m. daily. The Cafe shall have a minimum of 10 seats. The Parties acknowledge that there may be an interruption in service from time to time if there is a change in the operator of the Cafe. Notwithstanding Section 11 of this Agreement, any disruption in service due to a change in the operator of the Cafe shall not constitute a Default by MINI of Santa Monica so long as MINI of Santa Monica is actively pursuing a new operator of the Cafe. 2.7. Vehicle Parking and Inventor Storage. 2.7.1. Required Vehicle Parking Spaces. The number of marked parking spaces provided in the Project shall be at least seventy -three (73). In addition, the opportunity for supplementing the parking capacity of the garage exists by parking vehicles in the aisles. This Agreement and the Project Plans set forth the exclusive off - street parking requirements for the Project and supersede all other minimum space MINI of Santa Monica - 22138 7.9.14 Page 19 parking requirements under the Existing Regulations, including without limitation Part 9.04.10.08 of the Zoning Ordinance. 2.7.2. If, at anytime, a Project customer arrives at the Project site and no ground floor parking spaces are available, parking for such customer shall be accommodated elsewhere on the Project site, such as within the subterranean garage. 2.7.3. If more than 73 marked parking spaces are provided, these non- required spaces (and any supplemental parking capacity made available by parking vehicles in the aisles) may be made available for the storage of inventory vehicles. If, after the Project is open and operating, MINI of Santa Monica determines that some of the 73 spaces required pursuant to Section 2.7.1 are not necessary to meet the Project's peak parking demand, MINI of Santa Monica may use the these unused spaces for inventory storage if (i) MINI of Santa Monica obtains a written report by a traffic and parking engineering firm that demonstrates that the proposed additional parking spaces to be used for inventory storage are not needed to meet the Project's peak parking demand, (ii) MINI of Santa Monica submits such report to the City for review and approval, and (iii) the Planning Director approves the additional parking spaces for use as inventory storage. Alternatively, if a future SMMC requires less than 73 parking spaces for the Project, MINI of Santa Monica may notify the City in writing of its election to comply with the future SMMC's parking standards and make any non - required spaces available for inventory storage. 2.8. Design. (a) Setbacks. MINI of Santa Monica shall maintain the setbacks for the Project as shown on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the setbacks established by this Agreement, then the setbacks required by this Agreement shall prevail. (b) Building Height. The maximum height of the building shall be as set forth on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the building height allowed by this Agreement, then the building height allowed by this Agreement shall prevail. (c) Stepbacks. MINI of Santa Monica 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 in accordance with the procedures set forth in Section 6.1. All signs on the Property shall be subject to the Santa Monica Sign Code in effect as of the MINI of Santa Monica - 22138 7.9.14 Page 20 Effective Date, a copy of which is attached to this Agreement as Exhibit "E ". Directional signs for vehicles shall be located at approaches to driveways as required by the City's Strategic Transportation Planning Division. Such signage shall clearly denote the 14` Street driveway as the entrance for the sales and parts department and the Santa Monica Boulevard driveway as the entrance for the service department. ARTICLE 3 CONSTRUCTION 3.1. Construction Mitigation Plan. During the construction phase of the Project, MINI of Santa Monica shall comply with the Construction Mitigation Plan attached as Exhibit "G" hereto. 3.2. Construction Hours. MINI of Santa Monica shall be permitted to perform construction between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m, to 5:00 p.m. Saturday; provided that interior construction work which does not generate noise of more than thirty (30) decibels beyond the Property line may also be performed between the hours of 7:00 a.m. to 8:00 a.m, and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding the foregoing, pursuant to SMMC Section 4.12.110(e), MINI of Santa Monica 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 MINI of Santa Monica has not been issued a building permit for the Project by the "Outside Building Permit Issuance Date" (defined below), then on the day after the Outside Building Permit Issuance Date, without any further action by either Party, this Agreement shall automatically terminate and be of no further force or effect. For purposes of clarity, if MINI of Santa Monica has not been issued a building permit for the Project by the Outside Building Permit Issuance Date, the City shall not be required to pursue its remedies under Section 11.4 of this Agreement, and this Agreement shall, instead, automatically terminate. "Outside Building Permit Issuance Date" means the date that is the last day of the thirty -sixth (36`h) full calendar month after the Effective Date; provided that the Outside Building Permit Issuance Date may be extended by applicable Excusable Delays and otherwise in accordance with the remainder of this paragraph. If the approval by the ARB of the Project design does not occur within four (4) months of the submittal by MINI of Santa Monica to the ARB of the Project design, then the Outside Building Permit Issuance Date shall be extended one month for each additional month greater than four that the final ARB approval is delayed. At anytime prior to the last day of the thirty -sixth (36th) full calendar month after the Effective Date (the "Extension Notice Date "), MINI of Santa Monica 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 one (1) time for an additional twelve (12) months. The Planning Director may grant such MINI of Santa Monica - 22138 7.9.14 Page 21 extension if MINI of Santa Monica can demonstrate substantial progress has been made towards obtaining a building permit and show reasonable cause why MINI of Santa Monica will not be able to obtain the building permit for the Project by the initial Outside Building Permit Issuance Date and can demonstrate that: (a) the condition of the Property will not adversely affect public health or safety and (b) the continued delay will not create any unreasonable visual or physical detriment to the neighborhood. 3.4. Construction Period. Construction of the Project shall be subject to the provisions of SMMC Section 8.08.070. 3.5. Damage or Destruction. If the Project, or any part thereof, is damaged or destroyed during the term of this Agreement, MINI of Santa Monica shall be entitled to reconstruct the Project in accordance with this Agreement if: (a) MINI of Santa Monica obtains a building permit for this reconstruction prior to the expiration of this Agreement and (b) the Project is found to be consistent with the City's General Plan in effect at the time of obtaining the building permit. 3.6. Tiebacks. Excepting any utility conflicts, MINI of Santa Monica shall be allowed to install tiebacks, subject to standard terms and conditions as determined by the City's Director of Public Works or designee, beneath 14th Street, 14th Court and Santa Monica Boulevard. MINI of Santa Monica 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 for the Project. 3.7. Construction Staging. MINI of Santa Monica may use the 14th Street and Santa Monica Boulevard frontages and a portion of 14th Court for construction staging at City's customary costs and procedures or permits then in effect. ARTICLE 4 PROJECT FEES, EXACTIONS, MITIGATION MEASURES AND CONDITIONS 4.1. Fees, Exactions, Mitigation Measures and Conditions. Except as expressly set forth in Section 2.6.2 (relating to Community Benefits), Section 4.2 (relating to modifications), and Section 5.2 (relating to Subsequent Code Changes) below, the City shall charge and impose only those fees, exactions, mitigation measures, conditions, and standards of construction set forth in this Agreement, including Exhibits "C ", "D" and "G" attached hereto, and no others. If any of the mitigation measures or conditions set forth on Exhibit "D" is satisfied by others, MINI of Santa Monica 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. MINI of Santa Monica - 22138 7.9.14 Page 22 4.3. Implementation of Mitigation Measures and Conditions of Approval. 4.3.1. Compliance with Mitigation Measures and Conditions of Approval. MINI of Santa Monica shall be responsible for implementing the mitigation measures set forth in Section A of Exhibit "D" attached hereto, and MINI of Santa Monica shall be responsible to adhere to the conditions of approval set forth in Section B of Exhibit "D" in accordance with the timelines established in Exhibit "D ". 4.3.2. Survival of Mitigation Measures and Conditions of Approval. If MINI of Santa Monica 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 MINI of Santa Monica, 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. 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 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 MINI of Santa Monica - 22138 7.9.14 Page 23 additions to the Existing Regulations imposing or requiring the payment of any fee, special assessment or tax. 5.1.2. Existing Regulations Govern the Project. Except as provided in Section 5.2, development of the Buildings and improvements that will comprise the Project, including without limitation, the development standards for the grading, design, development, construction, occupancy or use of such Buildings and improvements, and any exactions therefor, shall be governed by the Existing Regulations. The City agrees that this Agreement is consistent with the General Plan, including the LUCE, as more fully described in the Recitals. Any provisions of the Existing Regulations inconsistent with the provisions of this Agreement, to the extent of such inconsistencies and not further, are hereby deemed modified to that extent necessary to effectuate the provisions of this Agreement. The Project shall be exempt from: (a) all Discretionary Approvals or review by the City or any agency or body thereof, other than the matters of architectural review by the ARB as specified in Section 6.1 and review of modifications to the Project as expressly set forth in 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 MINI of Santa Monica 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 General Commercial District (as defined in the City's General Plan as of the Effective Date). MINI of Santa Monica - 22138 7.9.14 Page 24 (c) Procedural regulations relating to hearing bodies, petitions, applications, notices, documentation of findings, records, manner in which hearings are conducted, reports, recommendations, initiation of appeals, and any other matters of procedure; provided such regulations are uniformly imposed by the City on all matters, do not result in any unreasonable decision - making delays and do not affect the substantive findings by the City in approving this Agreement or as otherwise established in this Agreement. (d) Regulations governing construction standards and specifications which are of general application that establish standards for the construction and installation of structures and associated improvements, including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code; provided that such construction standards and specifications are applied on a City -wide basis and do not otherwise limit or impair the Project approvals granted in this Agreement unless adopted to meet health and safety concerns. (e) Any other City regulations to which MINI of Santa Monica 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 MINI of Santa Monica under this Agreement. For the purposes of this Section 5.2.1(g), regulations which impair MINI of Santa Monica'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 MINI of Santa Monica shall use reasonable efforts to identify, assemble and copy three identical sets of the Existing Regulations, to be retained by the City and MINI of MINI of Santa Monica - 22138 7.9.14 Page 25 Santa Monica, 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. MINI of Santa Monica may, in its sole discretion, give the City written notice of its election to have any Subsequent Code Change applied to such portion of the Property as it may have an interest in, in which case such Subsequent Code Change shall be deemed to be an Existing Regulation insofar as that portion of the Property is concerned. If there is any conflict or inconsistency between the terms and conditions of this Agreement and the Existing Regulations, the terms and conditions of this Agreement shall control. 5.5. Timing of Development. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the parties' agreement. It is the intent of MINI of Santa Monica 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 density, or reduction in Floor Area greater than two percent (2 %) below the Maximum Floor Area. Decisions of the ARB are 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. 6.3. Concurrent Processing. MINI of Santa Monica may concurrently process MINI of Santa Monica - 22138 7.9.14 Page 26 plan check (SMMC § 8.08.060) with ARB design review (SMMC ch. 9.32); provided, however, that MINI of Santa Monica hereby agrees to accept the risk of plan check revisions if necessitated by the outcome of the ARB design review. ARTICLE 7 CITY TECHNICAL PERMITS 7.1. Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: 7.1.1. "Technical City Permits" means any Ministerial Approvals, consents or permits from the City or any office, board, commission, department, division or agency of the City, which are necessary for the actual construction of the Project or any portion thereof in accordance with the Project Site Plan and this Agreement. Technical City Permits include, without limitation (a) building permits, (b) related mechanical, electrical, plumbing and other technical permits, (c) excavation and grading permits, (d) encroachment permits, and (e) temporary and final certificates of occupancy. 7.1.2. "Technical Permit Applications" means any applications required to be filed by MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions: (a) MINI of Santa Monica shall have completed and filed all Technical Permit Applications which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided that such procedures and policies are uniformly in force and effect throughout the City; (b) MINI of Santa Monica shall have paid all processing and permit fees established by the City in connection with the filing and processing of any MINI of Santa Monica - 22138 7.9.14 Page 27 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, MINI of Santa Monica shall have obtained the approval of the ARB referred to in Section 6_1 above. 7.3.2. Issuance of a Technical City Permit. The obligation of the City to issue a Technical City Permit which is the subject of a Technical Permit Application filed by MINI of Santa Monica is subject to the satisfaction of the following conditions (and only such conditions and no others): (a) MINI of Santa Monica 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) MINI of Santa Monica 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, MINI of Santa Monica shall have the right to seek any relief from such standards under the procedures then available in the City; and (d) The proposed Buildings conform to the Administrative and Technical Construction Codes of the City (Article VIII, Chapter 1 of the Santa Monica Municipal Code) (the "Technical Codes ") in effect on the date that the Technical Permit Application is filed. 7.3.3. New Technical Requirements. From time to time, the City's Technical Codes are amended to meet new technical requirements related to techniques of building and construction. If the sole means of achieving compliance for the Project with such revisions to the Technical Codes made after the Effective Date ( "New Technical Requirements ") would require an increase from the allowable Building Height established in this Agreement for the Project, then the Planning Director is hereby authorized to grant MINI of Santa Monica limited relief from the allowable Building Height without amending this Agreement if the requested relief is in compliance with the City's General Plan. Any such approval shall be granted only after the Planning Director's receipt of a written request for such relief from MINI of Santa Monica. MINI of Santa Monica 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 MINI of Santa Monica - 22138 7.9.14 Page 28 Planning Director's determination for MINI of Santa Monica to comply with the New Technical Requirements. 7.4. Duration of Technical City Permits. The duration of Technical City Permits issued by the City, and any extensions of the time period during which such Technical City Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. Subject to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall not preclude or impair MINI of Santa Monica fiom 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 MINI of Santa Monica 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 terns of the SMMC (as the same may be amended from time to time), then MINI of Santa Monica may not subsequently apply for new building permits for the Project without first obtaining the prior written consent of the Planning Director, which may be granted or withheld in the Planning Director's sole discretion. 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 MINI of Santa Monica and the City or their successors and assigns in accordance with the provisions of the SMMC and Section 65868 of the California Government Code. ARTICLE 9 TERM 9.1. Effective Date. This Agreement shall be dated, and the obligations of the Parties hereunder shall be effective as of the date upon which the ordinance approving this Agreement becomes effective (the "Effective Date "). The Parties shall execute this Agreement within ten (10) working days of the Effective Date. 9.2. Term. 9.2.1. Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue for ten (10) years thereafter (the "Term "), unless the Term is otherwise terminated pursuant to Section 11.4, after the satisfaction of all applicable public hearing and related procedural requirements or pursuant to Section 3.3. 9.2.2. Termination Certificate. Upon termination of this Agreement, the Parties hereto shall execute an appropriate certificate of termination in recordable form (a "Termination Certificate "), which shall be recorded in the official records of Los Angeles County. MINI of Santa Monica - 22138 7.9.14 Page 29 9.2.3. Effect of Termination. Except as expressly provided herein (e.g., Section 4.3.2), none of the parties' respective rights and obligations under this Agreement shall survive the Term. ARTICLE 10 PERIODIC REVIEW OF COMPLIANCE 10.1. City Review. The City shall review compliance with this Development Agreement once each year, on or before March 31St (each, a "Periodic Review "), in accordance with this Article 10 in order to determine whether or not MINI of Santa Monica is out -of- compliance with any specific term or provision of this Agreement. 10.2. Evidence of Good Faith Compliance. On or before October 1" of each year, MINI of Santa Monica shall deliver to the City a written report demonstrating that MINI of Santa Monica 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 MINI of Santa Monica with the requirements of the Existing Regulations, except as otherwise modified by this Agreement; and (b) compliance by MINI of Santa Monica 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 MINI of Santa Monica of any of its obligations under this Agreement. 10.3. Information to be Provided to MINI of Santa Monica. Prior to any public hearing concerning the Periodic Review of this Agreement, the City shall deliver to MINI of Santa Monica 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 MINI of Santa Monica a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver to MINI of Santa Monica a copy of all staff reports prepared in connection with such Notice of Breach, all written comments from the public and all related exhibits concerning such Notice of Breach. 10.4. Notice of Breach, Cure Rights. If during any Periodic Review, the City reasonably concludes on the basis of substantial evidence that MINI of Santa Monica has not demonstrated that it is in good faith compliance with this Agreement, then the City may issue and deliver to MINI of Santa Monica a written Notice of Breach pursuant to Section 11.1 below, and MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica fails MINI of Santa Monica - 22138 7.9.14 Page 30 to timely cure any item(s) of non - compliance set forth in a Notice of Default, then the City shall have the right but not the obligation to initiate proceedings for the purpose of terminating this Agreement pursuant to Section 11.4 below. 10.7. City Cost Recovery. Following completion of each Periodic Review, MINI of Santa Monica shall reimburse the City for its actual and reasonable costs incurred in connection with such review. ARTICLE 11 DEFAULT 11.1. Notice and Cure. 11.1.1. Breach. If either Party fails to substantially to perform any term, covenant or condition of this Agreement which is required on its part to be performed (a "Breach "), the non - defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non - defaulting Party has first sent a written notice of Breach (a "Notice of Breach "), in the manner required by Section 15.1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by MINI of Santa Monica, the City shall also deliver a copy of the Notice of Breach to any Secured Lender of MINI of Santa Monica which has delivered a Request for Notice to the City in accordance with Article 12. 11.1.2. Monetary Breach. In the case of a monetary Breach by MINI of Santa Monica, MINI of Santa Monica shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by MINI of Santa Monica 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, MINI of Santa Monica shall deliver to the City reasonable evidence of the Excusable Delay. 11.1.3. Non - Monetary Breach. In the case of a non - monetary Breach by either Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for a non - monetary Breach shall be extended as is reasonably necessary to remedy such Breach; provided that the alleged defaulting Party commences such cure promptly after receiving the Notice of Breach and continuously and diligently pursues such remedy at all times until such Breach is cured. 111.4. 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. MINI of Santa Monica - 22138 7.9.14 Page 31 11.2. Remedies for Monetary Default. If there is a Breach by MINI of Santa Monica in the performance of any of its monetary obligations under this Agreement which remains uncured (a) thirty (30) business days after receipt by MINI of Santa Monica of a Notice of Breach from the City and (b) after expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica, after the expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of MINI of Santa Monica has delivered a Request for Notice to the City in accordance with Section 12. 1), then an "Event of Non - Monetary Default" shall have occurred and the non - defaulting Party shall have available any right or remedy provided in this Agreement, or provided at law or in equity except as prohibited by this Agreement. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy. 11.3.2. Specific Performance. The City and MINI of Santa Monica acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance is an appropriate remedy for the enforcement of this Agreement. Therefore, unless otherwise expressly provided herein, the remedy of specific performance shall be available to the non - defaulting party if the other Party causes an Event of Non - Monetary Default to occur. 11.3.3. Writ of Mandate. The City and MINI of Santa Monica hereby stipulate that MINI of Santa Monica shall be entitled to obtain relief in the form of a writ of mandate in accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy any Event of Non - Monetary Default by the City of its obligations and duties under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary standard or the standard of review applicable to any action of, or approval by, the City pursuant to this Agreement or with respect to the Project. 11.3.4. No Damages Relief Against City. It is acknowledged by MINI of Santa Monica 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 MINI of Santa Monica and MINI of Santa Monica MINI of Santa Monica - 22138 7.9.14 Page 32 covenants on behalf of itself and its successors in interest not to sue for or claim any damages: (a) for any default under this Agreement; (b) for the regulatory taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; or (c) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. The City and MINI of Santa Monica agree that the provisions of this Section 11.3.4 do not apply for damages which: (a) do not arise under this Agreement; (b) are not with respect to any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or (c) do not arise out of or which are not connected to any dispute, controversy, or issue regarding the application, interpretation, or effect of the provisions of this Agreement or the application of any City rules, regulations, or official policies. 11.3.5. Enforcement by the City. The City, at its discretion, shall be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the same may be amended from time to time and shall follow the notice procedures of Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these remedies are applied. 11.3.6. No Damages Against MINI of Santa Monica. It is acknowledged by the City that MINI of Santa Monica would not have entered into this Agreement if MINI of Santa Monica 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, MINI of Santa Monica shall not be liable in damages to the City for any nonmonetary default and the City covenants on behalf of itself not to sue for or claim any damages: (a) for any non - monetary default hereunder or; (b) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. The City and MINI of Santa Monica agree that the provisions of this Section 11.3.6 do not apply for damages which: MINI of Santa Monica - 22138 7.9.14 Page 33 (a) are for a monetary default; (b) do not arise out of or which are not connected with any dispute, controversy or issue regarding the application, interpretation, or effect of the provisions of this Agreement to or the application of, any City rules, regulations, or official policies; or (c) Constitute Damages which arise under Section 14.1. 11.3.7. No Other Limitations. Except as expressly set forth in this Section 11.3, the provisions of this Section 11.3 shall not otherwise limit any other rights, remedies, or causes of action that either the City or MINI of Santa Monica 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 MINI of Santa Monica. If MINI of Santa Monica 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 MINI of Santa Monica (and to any Secured Lender of MINI of Santa Monica 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 MINI of Santa Monica (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 MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica has not been in good faith compliance with this Agreement pursuant to Section 10. 1, as applicable and (ii) further determines that MINI of Santa Monica (or the Secured Lender, if applicable) has not cured (within the applicable cure periods) the acts or omissions that constitute the basis of the determination under clause (i) above or if those acts or omissions could not be reasonably remedied prior to the public hearing that MINI of Santa Monica (or the Secured Lender) has not in good faith commenced to cure or correct such acts or omissions prior to the public hearing or is not diligently and NIINI of Santa Monica - 22138 7.9.14 Page 34 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 MINI of Santa Monica. If the City Council does not terminate this Agreement, but proposes a modification to this Agreement as a result of the public hearing and MINI of Santa Monica does not (within five (5) days of receipt) execute and deliver to the City the form of modification of this Agreement submitted to MINI of Santa Monica by the City, then the City Council may elect to terminate this Agreement at any time after the sixth day after MINI of Santa Monica'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, MINI of Santa Monica has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit issued by the City, then MINI of Santa Monica 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 MINI of Santa Monica (in its sole discretion), from encumbering the Property (in any manner) or any portion thereof or any improvement thereon by any mortgage, deed of trust, assignment of rents or other security device securing financing with respect to the Property (a "Mortgage "). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a "Secured Lender ") on the Property shall be entitled to the rights and privileges set forth in this ARTICLE 12. Any Secured Lender may require from the City certain interpretations of this Agreement. The City shall from time to time, upon request made by MINI of Santa Monica, meet with MINI of Santa Monica 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. MINI of Santa Monica - 22138 7.9.14 Page 35 12.1.1. Mortgage Not Rendered Invalid. Except as provided in Section 12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any Event of Monetary Default nor any Event of Non - Monetary Default shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. 12.1.2. Priority of Agreement. This Agreement shall be superior and senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Secured Lender or its successor in interest (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise) shall be subject to all of the terms and conditions of this Agreement. 12.1.3. Right of Secured Lender to Cure Default. (a) A Secured Lender may give notice to the City, specifying the name and address of such Secured Lender and attaching thereto a true and complete copy of the Mortgage held by such Secured Lender, specifying the portion of the Property that is encumbered by the Secured Lender's lien (a "Request for Notice "). If the Request for Notice has been given, at the same time the City sends to MINI of Santa Monica 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 MINI of Santa Monica. The copy of the Notice of Breach or the Hearing Notice sent to the Secured Lender pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the City. The period within which a Secured Lender may cure a particular Event of Monetary Default or Event of Non - Monetary Default shall not commence until the City has sent to the Secured Lender such copy of the applicable Notice of Breach or Hearing Notice. (b) After a Secured Lender has received a copy of such Notice of Default or Hearing Notice, such Secured Lender shall thereafter have a period of time (in addition to any notice and/or cure period afforded to MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica - 22138 7.9.14 Page 36 agreement on MINI of Santa Monica's part to be performed hereunder with the same force and effect as though performed by MINI of Santa Monica. (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 MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica's or the affirmative covenants of MINI of Santa Monica'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 MINI of Santa Monica that accrued prior to the date the Secured Lender became the fee owner of the Property. (b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City's authority to terminate this Agreement, as against any Secured Lender as well as against MINI of Santa Monica if any curable Event of Monetary Default or an Event of Non - Monetary Default is not completely cured within the Secured Lender's Cure Period. ARTICLE 13 TRANSFERS AND ASSIGNMENTS 13.1. Transfers and Assignments. 13.1.1. Not Severable from Ownership Interest in Property. This Agreement shall not be severable from MINI of Santa Monica's interest in the Property and any transfer of the Property or any portion thereof shall automatically operate to transfer the benefits and burdens of this Agreement with respect to the transferred Property or transferred portions, as applicable. 13.1.2. Transfer Rights. MINI of Santa Monica may freely sell, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Property, without the consent of the City. MINI of Santa Monica shall, however, give written notice to the City, in accordance with Section 15. 1, of any transfer of the Property, MINI of Santa Monica - 22138 7.9.14 Page 37 disclosing in such notice (a) the identity of the transferee of the Property (the "Property Transferee ") and (b) the address of the Property Transferee as applicable. 13.2. Release Upon Transfer. Upon the sale, transfer, exchange or hypothecation of the rights and interests of MINI of Santa Monica to the Property, MINI of Santa Monica 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) MINI of Santa Monica has provided written notice of such transfer to City; and (b) the Property Transferee executes and delivers to City a written agreement in which the Property Transferee expressly and unconditionally assumes all of the obligations of MINI of Santa Monica under this Agreement with respect to the Property in the form of Exhibit "H" attached hereto (the "Assumption Agreement "). Upon such transfer of the Property and the express assumption of MINI of Santa Monica's obligations under this Agreement by the transferee, the City agrees to look solely to the transferee for compliance with the provisions of this Agreement. Any such transferee shall be entitled to the benefits of this Agreement as "MINI of Santa Monica" 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. MINI of Santa Monica 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 MINI of Santa Monica or those of its officers, board members, agents, employees, volunteers, contractors, subcontractors or other persons acting on its behalf (collectively referred to as the "MINI of Santa Monica Parties ") which occurs during the Term and relates to this Agreement; (2) for any act or omission related to the operations of MINI of Santa Monica Parties, including but not limited to the maintenance and operation of areas on the Property accessible to the public. MINI of Santa Monica's obligation to defend, indemnify and hold harmless applies to all actions and omissions of MINI of Santa Monica 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 ght to Defense. The City shall have the right to approve legal counsel retained by MINI of Santa Monica to defend any claim, action or proceeding MINI of Santa Monica - 22138 7.9.14 Page 38 which MINI of Santa Monica 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 MINI of Santa Monica in defense of any such action, or if the City is reasonably dissatisfied with legal counsel retained by MINI of Santa Monica, the City shall have the right (a) at MINI of Santa Monica's costs and expense, to have the City Attorney undertake and continue the City's defense, or (b) with MINI of Santa Monica'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 MINI of Santa Monica, 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 Ci : City of Santa Monica 1685 Main Street, Room 204 Santa Monica, CA 90401 Attention: City Manager Fax: (310) 917 -6640 With a Copy to: City of Santa Monica 1685 Main Street, Room 212 Santa Monica, CA 90401 Attn: Planning and Community Development Director Fax: (310) 458 -3380 To MINI of Santa Monica: MINI of Santa Monica c/o The Quinn Automotive Group 1155 Leslie St. Toronto, ON, CANADA, M3C2J6 Attn: Steve Quinn MINI of Santa Monica - 22138 7.9.14 Page 39 With a Copy to: Harding Larmore Katcher & Kozal, LLP 1250 Sixth Street, Suite 200 Santa Monica, CA 90401 Attn: Christopher M. Harding Fax: (310) 392 -3537 Notice given in any other manner shall be effective when received by the addressee. Any Party may change the addresses for delivery of notices to such Party by delivering notice to the other 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. 15.3. Binding Effect. The Parties intend that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property during the Term for the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of all successors -in- interest to the Parties hereto. Every Party who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Project during the Term is and shall be conclusively deemed to have consented and agreed to every provision contained herein, to the extent relevant to said right, title or interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project. 15.4. Agreement Not for Benefit of Third Parties. This Agreement is made and entered into for the sole protection and benefit of MINI of Santa Monica 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 j oint venture between the City and MINI of Santa Monica or to render either Parry 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 MINI of Santa Monica - 22138 7.9.14 Page 40 any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the responding Party, any event has occurred or failed to occur which, with the passage of time or the giving of notice, or both, would constitute an Event of Monetary Default or an Event of Non-Monetary Default and, if so, specifying each such event. A Party receiving a request for an Estoppel Certificate shall execute and return such Certificate within thirty (30) days following the receipt of the request therefor. If the party receiving the request hereunder does not execute and return the certificate in such 30 -day period and if circumstances are such that the Party requesting the notice requires such notice as a matter of reasonable business necessity, the Party requesting the notice may seek a second request which conspicuously states "FAILURE TO EXECUTE THE REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE DEVELOPMENT AGREEMENT" and which sets forth the business necessity for a timely response to the estoppel request. If the Party receiving the second request fails to execute the Estoppel Certificate within such 15 -day period, it shall be conclusively deemed that the Agreement is in full force and effect and has not been amended or modified orally or in writing, and that there are no uncured defaults under this Agreement or any events which, with passage of time of giving of notice, of both, would constitute a default under the Agreement. The City Manager shall have the right to execute any Estoppel Certificate requested by MINI of Santa Monica under this Agreement. The City acknowledges that an Estoppel Certificate may be relied upon by any Property Transferee, Secured Lender or other party. 15.7. Time. Time is of the essence for each provision of this Agreement of which time is an element. 15.8. Excusable Delays. 15.8.1. In addition to any specific provisions of this Agreement, non- performance by MINI of Santa Monica 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 MINI of Santa Monica (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 -- whether instituted by MINI of Santa Monica, the City or any other person or entity, or the filing of a lawsuit by any Party arising out of this Agreement, the EIR, the corresponding Mitigation Monitoring Program, the Project's MINI of Santa Monica - 22138 7.9.14 Page 41 Statement of Overriding Considerations, or any permit or approval MINI of Santa Monica deems necessary or desirable for the implementation of the Project; (d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement; (e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes; and (1) 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 MINI of Santa Monica to secure financing be an Excusable Delay to the obligations of MINI of Santa Monica 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 MINI of Santa Monica. 15.8.3. In order for an extension of time to be granted for any Excusable Delay, MINI of Santa Monica must deliver to the City written notice of the commencement of the Excusable Delay within sixty (60) days after the date on which MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica. The City shall cooperate with MINI of Santa Monica in any such defense as MINI of Santa Monica may reasonably request. 15.11. Attorneys' Fees. If any Party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this Agreement or for specific performance for the Breach of this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post - judgment proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid whether or not such action is prosecuted to judgment. In any case where this Agreement provides that the City or MINI of Santa Monica 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 MINI of Santa Monica - 22138 7.9.14 Page 42 market value of services provided by attorneys employed by it as well as any attorneys' fees actually paid by it to third Parties. The fair market value of the legal services for public attorneys shall be determined by utilizing the prevailing billing rates of comparable private attorneys. 15.12. Recordation. The Parties shall cause this Agreement to be recorded against title to the Property in the Official Records of the County of Los Angeles. The cost, if any, of recording this Agreement shall be borne by MINI of Santa Monica. 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. MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica - 22138 7.9.14 Page 43 (c) the processing of applications for and issuing of all City Technical Permits requiring the determination of conformance with the Existing Regulations. 15.15.3. No Revocation. The City shall not revoke or subsequently disapprove any approval or future approval for the development of the Project or the Property once issued by the City provided that the development of the Project or the Property is in accordance with such approval. Any disapproval by the City shall state in writing the reasons for such disapproval and the suggested actions to be taken in order for approval to be granted. 15.15.4. Processing During Third Party Litigation. If any third party lawsuit is filed against the City or MINI of Santa Monica relating to this Agreement or to other development issues affecting the Property, the City shall not delay or stop the development, processing or construction of the Property, or issuance of the City Technical Permits, unless the third party obtains a court order preventing the activity. The City shall not stipulate to or fail to oppose the issuance of any such order. Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8(c), after service on the City or MINI of Santa Monica of the initial petition or complaint challenging this Agreement or the Project, the MINI of Santa Monica may apply to the Planning Director for a tolling of the applicable deadlines for MINI of Santa Monica 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" Exhibit "B" Exhibit "C" Exhibit "D" Exhibit `B" MINI of Santa Monica - 22138 7.9.14 Page 44 Legal Description of the Property Project Plans Permitted Fees and Exactions Mitigation Measures and Conditions SMMC Article 9 (Planning and Zoning) Exhibit "F -1 " Local Hiring Program for Construction Exhibit "F -2" Local Hiring Program for Permanent Employment Exhibit "G" Construction Mitigation Plan Exhibit "H" 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 MINI of Santa Monica, upon MINI of Santa Monica's request, with a statement ( "Certificate of Performance ") evidencing said completion, termination or revocation and the release of MINI of Santa Monica 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 MINI of Santa Monica 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 MINI of Santa Monica. MINI of Santa Monica represents to the City that, as of the Effective Date, it is the owner of the entire Property, subject to encumbrances, easements, covenants, conditions, restrictions, and other matters of record. 15.21. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and MINI of Santa Monica. 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 MINI of Santa Monica. If and when, from time to time, during the term of this Agreement, the City and MINI of Santa Monica agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by the City and MINI of Santa Monica, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by the City and MINI of Santa Monica. 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, MINI of Santa Monica, 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 MINI of Santa Monica - 22138 7.9.14 Page 45 provisions of Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council. 15.22. Acknowledgments, Agreements and Assurance on the Part of MINI of Santa Monica. 15.22.1. MINI of Santa Monica's Faithful Performance. The Parties acknowledge and agree that MINI of Santa Monica'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 MINI of Santa Monica'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. MINI of Santa Monica 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 MINI of Santa Monica on the Property. 15.22.2. Obligations to be Non - Recourse. As a material element of this Agreement, and in partial consideration for MINI of Santa Monica's execution of this Agreement, the Parties each understand and agree that the City's remedies for breach of the obligations of MINI of Santa Monica under this Agreement shall be limited as described in Sections 11.2 through 11.4 above. 15.22.3. Waiver of Protest. MINI of Santa Monica acknowledges and agrees that by executing this Agreement, MINI of Santa Monica waives any and all claims and rights, if any, under Government Code Section 66020 to protest fees, dedications, reservations, or exactions required by this Agreement, including the City's right to request and receive the fee pursuant to this Agreement, the total fee amount if specified by the Agreement, and the formula for subsequently calculating fees or exactions if the formula is established by the Existing Regulations. Notwithstanding the above, if the amount of any fee or exaction is not expressly set forth in this Agreement, MINI of Santa Monica reserves the right to protest the subsequent calculation of this amount. 15.23. Not a Public Dedication. Except for the dedications to be made by MINI of Santa Monica pursuant to Section 2.6, nothing in this Agreement shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. MINI of Santa Monica shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose inimical to the development of the Project, including without limitation to prevent any person or entity MINI of Santa Monica - 22138 7.9.14 Page 46 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. MINI OF SANTA MONICA: Q6 REAL ESTATE INC., a California Corporation By: DRAFT_ Name: Title: CITY: CITY OF SANTA MONICA, a municipal corporation By: _ Name: Title: ATTEST: By: Name: DRAFT DRAFT City Clerk APPROVED AS TO FORM: By: DRAFT Name: City Attorney MINI of Santa Monica - 22138 7.9.14 Page 47 MINI of Santa Monica - 22138 7.9.14 Page 48 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY REAL PROPERTY IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: LOTS 'W", "W" AND "X" IN BLOCK 160 OF SANTA MONICA, IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3, PAGES 80 AND 81 AND IN BOOK 39, PAGE(S) 45, ET SEQ., OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. MINI of Santa Monica - 22138 7.9.14 Page 49 EXHIBIT `B" PROJECT PLANS On file with the City of Santa Monica. MINI of Santa Monica - 22138 7.9.14 Page 50 EXHIBIT "C" PERMITTED FEES AND EXACTIONS MINI of Santa Monica 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, MINI of Santa Monica shall pay City fees for processing of ARB applications; (b) Upon submittal for plan check, MINI of Santa Monica shall pay City plan check fees; (c) Prior to issuance of construction permits, MINI of Santa Monica 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 Contribution. (See Section 2.6.1.e) • Cultural Arts Fee (SMMC Section 9.04.10.20). MINI of Santa Monica shall execute a contract to pay the fee prior to issuance of a building permit. MINI of Santa Monica 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 MINI of Santa Monica in accordance with the City's standard practice should MINI of Santa Monica not proceed with development of the Project. MINI of Santa Monica - 22138 7.9.14 Page 51 2. Prior to issuance of permits for any construction work in the public right -of -way, or use of public property, MINI of Santa Monica shall pay the following City fees: ® Use of Public Property Permit fees (SMMC 7.04.670) (EPWM) ® Utility Excavation Permit fee (SMMC 7.04.010) (EPWM) ® Street Permit fee (SMMC 7.04.790) (EPWM) 3. MINI of Santa Monica shall reimburse the City for its actual costs to monitor environmental mitigation measures. The City shall bill MINI of Santa Monica for staff time and any material used pursuant to the hourly fees in effect at the time monitoring is performed. MINI of Santa Monica shall submit payment to the City within 30 days after receipt of an invoice for same from the City. MINI of Santa Monica shall reimburse the City for its ongoing actual costs to monitor the project's compliance with this Development Agreement. The City shall bill MINI of Santa Monica for staff time and any material used pursuant to the hourly fees in effect at the time monitoring is performed. MINI of Santa Monica shall submit payment to the City within 30 days after receipt of an invoice for same from the City. MINI of Santa Monica - 22138 7.9.14 Page 52 EXHIBIT "D" 1 � 1402 Santa Monica Boulevard EIR — Mitigation Measures MM A -1 The damaged Bronze Loquat tree removed on Santa Monica Boulevard shall be replaced by the project applicant on a 2:1 basis at minimum. Replacement trees shall consist of a minimum of 36 -inch box trees. The replacement trees shall be planted within the public right -of -way. The trees shall be planted in accordance with the requirements of the Urban Forest Master Plan, guaranteed for 2 years, and under the guidance of the City of Santa Monica's Urban Forester. MM C -1 The applicant shall prepare, implement and maintain a Construction Impact Mitigation Plan prior to issuance of a building permit to adequately manage traffic during construction and shall be designed to: • Prevent traffic impacts on the surrounding roadway network • 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 traffic control 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 he 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 MINI of Santa Monica - 22138 7.9.14 Page 53 queuing /staging shall not be allowed on Santa Monica streets. Limited queuing may occur on the construction site itself. • Materials and equipment shall be minimally visible to the public; the preferred location for materials is to be on -site, with a minimum amount of materials within a work area in the public right -of -way, subject to a current Use of Public Property Permit. • Any requests for work before or after normal construction hours within the public right -of -way shall be subject to review and approval through the After Hours Permit process administered by the Building and Safety Division. • 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 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, or implementation of an approved traffic control 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 (if necessary) requiring encroachment into pubic 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 affect agencies (e.g., Big Blue Bus, Metro (MTA), 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. MME-1 Prior to approval of the first grading plan, the project applicant shall submit a soils management plan and a transportation plan to the appropriate cleanup agency (e.g., LARWCB, DTSC, SMFD) for review and approval. The soils management plan and transportation plan shall include the following tasks: Soils Management Plan Affected soils shall be either directly loaded into awaiting trucks for immediate offsite disposal or temporarily stockpiled on plastic sheeting prior to load -out and offsite disposal. If temporarily stockpiled, soil removed from MINI of Santa Monica - 22138 7.9.14 Page 54 the excavations shall be placed next to or as close as possible to the excavation from which it came. Prior to load -out, the construction contractor shall prepare waste profiles and example waste manifests for approval by the receiving facilities. Soil and material segregation, stockpile handling, truck loading, and stormwater management practices shall be followed during the remedial action according to the following. Soil and Material Segregation Overburden soils shall be screened with an organic vapor analyzer (OVA) in accordance with SCAQMD Rule 1166. Any significant quantities of construction debris encountered during excavation shall be segregated and disposed of in accordance with federal, state, and local regulations. Soil cuttings during the installation of soldier piles shall be disposed of offsite with any affected soils from the deep excavation. Stockpile Management The stockpiled soils for load -out shall be segregated by waste classification: • Nonhazardous waste. • VOC- contaminated nonhazardous waste with OVA readings greater than 50 ppm but less than 1,000 ppm. • VOC- contaminated nonhazardous waste with OVA readings of 1,000 ppm or greater. These soils shall be immediately sprayed with water or suppressant and placed in a sealed container (roll -off bin) or directly loaded into a suitable transport truck, moistened with water, and covered with a tarp for offsite transportation to the appropriate disposal facility, as specified in the SCAQMD Rule 1166 Mitigation Plan. The temporary stockpiles containing affected soils shall be managed as follows: • The temporary stockpiles for non -VOC contaminants shall be placed on plastic sheeting and kept moist during working hours and covered with plastic sheeting at the end of the day to control dust. • The VOC- contaminated stockpiles shall be placed on plastic sheeting and immediately covered with plastic sheeting. The edges of the plastic shall have an overlap of at least 24 inches. The plastic shall be secured at the base of the stockpile and along the seams of overlapping plastic sheeting with sandbags or equivalent means. The stockpiles shall remain covered until load -out. • Daily inspections of the stockpiles shall be conducted to verify the integrity of the stockpile covers. Any gaps, tears, or other deficiencies shall be corrected immediately. Daily records shall be kept of stockpile inspections and any repairs made. • If necessary, commercial vapor suppressants and sealants shall be prepared and applied to VOC- contaminated soil in accordance with the manufacturer's recommendations. MINI of Santa Monica - 22138 7.9.14 Page 55 • During stockpile generation and removal, only the working face of the stockpile shall be uncovered. Decontamination Methods and Procedures Each piece of equipment used for the excavation of affected soils shall have a clean-out bucket or continuous edge across the cutting face of its bucket. No excavation of affected soil shall be permitted with equipment utilizing teeth across the cutting edge of its bucket. Entry to the contaminated areas (i.e., work exclusion zones) shall be limited to avoid unnecessary exposure and related transfer of contaminants. In unavoidable circumstances, any equipment or truck(s) that come into direct contact with affected soil shall be decontaminated to prevent the onsite and offsite distribution of contaminated soil. The decontamination shall be conducted within a designated area by brushing off equipment surfaces onto plastic sheeting. Trucks shall be visually inspected before leaving the site, and any dirt adhering to the exterior surfaces shall be brushed off and collected on plastic sheeting. The storage bins or beds of the trucks shall be inspected to ensure the loads are properly covered and secured. Excavation equipment surfaces shall also be brushed off prior to removing the equipment from contaminated areas. Movement of affected soils from the excavation area to temporary stockpiles shall be conducted using enclosed transfer trucks, if possible. If affected soils must be moved within an open receptacle (e.g., loader bucket), the travel path for the loader shall be scraped following this activity, with scraped soils placed in the temporary stockpile for load -out. Sampling equipment that comes into direct contact with potentially contaminated soil or water shall be decontaminated to assure the quality of samples collected and /or to avoid cross - contamination. Disposable sampling equipment intended for one -time use shall not be decontaminated, but shall be packaged for appropriate offsite disposal. Decontamination shall occur prior to and after each designated use of a piece of sampling equipment, using the following procedures: • Nonphosphate detergent and tap -water wash, using a brush if necessary • Tap -water rinse • Initial deionized/distilled water rinse • Final deionized/distilled water rinse Truck Loading Trucks may be loaded directly from the excavation or temporary stockpile based on truck availability and excavation logistics. Trucks shall be routed and stockpile areas shall be located so as to avoid having trucks pass through impacted areas. The truckloads shall be wetted and tarped prior to exiting the site. All soil hauled from the site shall comply with the following: • Materials shall be transported to an approved treatment /disposal facility. • No excavated material shall extend above the sides or rear of the truck/trailer. MINI of Santa Monica - 22138 7.9.14 Page 56 • Trucks /trailers carrying affected soils shall be completely tarped /covered to prevent particulate emissions to the atmosphere. Prior to covering /tarping, the surface of the loaded soil shall be moistened. • The exterior of the trucks /trailers shall be cleaned off prior to leaving the site to eliminate tracking of material offsite. Stormwater Management The good housekeeping practices prescribed in the City's Urban Runoff Mitigation Plan (Municipal Code Section 7.10.060) shall be implemented during soil excavation activities to contain and control stormwater runoff that might convey contaminated or excessive sediments. If rainfall is expected, the areas around open excavations shall be graded and bermed to prevent stormwater from flowing into the excavation. Any standing water that collects in the bottom of the excavations shall be removed and handled in accordance with federal, state, and local regulations. The water shall be sampled and analyzed either as standing water in the excavation or following containment in a temporary aboveground storage tank. Depending on the volume of water and the sampling results, options for handling the standing water could include: • Pumping the standing water into temporary aboveground storage tanks for reuse onsite for dust suppression. • Pumping the standing water through filters and a carbon adsorption filter (if required based on analytical results) prior to discharge to a storm drain, subject to approval by the City of Santa Monica Water Resources Protection Programs Division. • Pumping the standing water into vacuum trucks for transport and disposal at a recycling facility Transportation Plan All affected soils shall be transported offsite for lawful management and disposal. Prior to load -out, the construction contractor shall prepare waste profiles for the receiving facility using analytical data from the previous environmental site assessment. MM H -1 The project construction contractors shall ensure that equipment is properly maintained per the manufacturers' specifications and fitted with the best available noise suppression devices (i.e., mufflers, silencers, wraps, etc). MM H -2 The project construction contractors shall shroud or shield all impact tools, and muffle or shield all intake and exhaust ports on power equipment. MM H -3 The project construction contractors shall ensure that construction equipment does not idle for extended periods of time. MM H -4 The project construction contractors shall locate fixed and /or stationary equipment as far as possible from noise - sensitive receptors (e.g., generators, compressors, cement mixers). MM H -5 Prior to the issuance of a building permit, the construction contractors shall submit a MINI of Santa Monica - 22138 7.9.14 Page 57 list of equipment and activities required during construction. In particular, this list shall include the following: • Construction equipment to be used, such as pile drivers, jackhammers, pavement breakers or similar equipment; • Construction activities such as twenty -four hour pumping, excavation or demolition A list of all measures that will be implemented to minimize noise impacts on nearby residential uses. MM H -6 Construction activities that will exceed 80 dBA Lea shall be limited to the hours of 10:00 a.m, to 3:00 p.m. Monday through Friday. MM H -7 Two weeks prior to the commencement of construction at the project site, notification shall be provided to the owners and tenants of residential properties located within 500 feet of the project site disclosing the planned construction schedule, including the various types of activities and equipment that would be occurring throughout the duration of the construction period. This notification shall also provide a contact name and phone number for residents to call for construction noise related complaints. All reasonable concerns shall be rectified within 24 hours of receipt. INITIAL STUDY MITIGATION MEASURES: MM IS -1 (same as MM A -1) MM IS -2 If archaeological materials are discovered during project grading and excavation activities, all work within a 100 -meter radius shall be temporarily ceased. The materials shall be treated in accordance with Federal, State and local guidelines, including those set forth in California Public Resources Code Section 21083.2. In addition, if it determined that an archaeological site is a historical resource, the provision of Section 21084.1 of the Public Resources Code and CEQA Guidelines Section 15064.5 would be implemented. MINI of Santa Monica - 22138 7.9.14 Page 58 SECTION B — CONDITIONS OF APPROVAL Project Specific Conditions 1. The project shall provide the Significant Project Features and LUCE Community Benefits as established in Section 2.6 of this Agreement. CITY PLANNING Administrative Conditions 2. In the event MINI of Santa Monica 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 This approval is for those plans dated June 18, 2014, 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. 4. 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. 5. Except as otherwise provided by the Development Agreement, project plans shall be subject to complete Code Compliance review when the building plans are submitted for plan check and shall comply with all applicable provisions of Article IX of the Municipal Code and all other pertinent ordinances and General Plan policies of the City of Santa Monica prior to building permit issuance. Fees 6. No building permit shall be issued for the project until the developer complies with the requirements of Part 9.04.10.20 of the Santa Monica Municipal Code, Private Developer Cultural Arts Requirement. If the developer elects to comply with these requirements by providing on site public art work or cultural facilities, no final City approval shall be granted until such time as the Director of the Community and Cultural Services Department issues a notice of compliance in accordance with Part 9.04.10.20. Cultural Resources If any archaeological remains are uncovered during excavation or construction, work in the affected area shall be suspended and a recognized specialist shall be MINI of Santa Monica - 22138 7.9.14 Page 59 contacted to conduct a survey of the affected area at project's owner's expense. A determination shall then be made by the Director of Planning to determine the significance of the survey findings and appropriate actions and requirements, if any, to address such findings. Project Operations 8. 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. 9. The project, including the Automobile Dealership's service and repair department, shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). 10. Loading. (a) Vehicles. Inventory vehicles shall be primarily delivered to the Project site through driving such vehicles to the site individually. Any off - loading of inventory vehicles at the Project site, including in the adjacent public right -of -way, shall be conducted pursuant to an inventory off - loading plan that is reasonably approved by the Planning Director (or his or her designee), which at a minimum meets the following restrictions: such loading and unloading of vehicles at the Project site shall be limited to the hours of eight a.m. to five p.m. Monday through Saturday, excluding legal holidays, and shall not block the path of travel for ingress or egress of any other property. Furthermore, such loading and unloading of vehicles in the public right -of -way shall occur only on Santa Monica Boulevard. Neither 14`h Court nor 14th Street shall be utilized for the loading and unloading of vehicles directly to the Project site. From time to rime, the inventory off - loading plan may be modified subject to reasonable approval by the Planning Director (or his or her designee). (b) Other. To the extent that 14`h Court may be used for parts deliveries or other deliveries of supplies (other than sales inventory vehicles) to the Automobile Dealership, such deliveries shall not occur between the hours of 10 p.m. and 7 a.m., daily. 11. Test Driving. Test driving shall be conducted pursuant to a plan that includes a test driving route or multiple routes that are reasonably approved by the Planning Director (or his or her designee). Test driving is only permitted on streets designated by the City as a primary or secondary truck route as shown on Exhibit "I" to this Agreement and shall not be permitted on residential streets or alleys. MINI of Santa Monica shall inform its employees of this requirement and ensure compliance with it. From time to rime, the test driving plan may be modified subject to reasonable approval by the Planning Director (or his or her designee). MINI of Santa Monica - 22138 7.9.14 Page 60 12. Vehicular Ingress Notification for Customers and Project Visitors. As described in this Condition 11, MINI of Santa Monica shall notify its potential customers and visitors to the Project that sales and parts customers are to enter the Project Site through the 14th Street vehicular ingress and service customers are to enter the Project Site through the Santa Monica Boulevard vehicular ingress. Specifically, MINI of Santa Monica shall take the following specific steps: (a) If MINI of Santa Monica has a website, the features of the website that include the directions to or location of the Dealership shall notify potential customers and visitors that sales and parts customers are to enter the Project Site through the 14th Street vehicular ingress, while service customers are to enter the Project Site through the Santa Monica Boulevard vehicular ingress. (b) If MINI of Santa Monica has an automated greeting /recording for telephone callers that provides information, such greeting /recording shall notify potential customers and visitors to the Project that sales and parts customers are to enter the Project Site through the 14th Street vehicular ingress, while service customers are to enter the Project Site through the Santa Monica Boulevard vehicular ingress. (c) MINI of Santa Monica shall (i) notify customers who make an appointment to visit the sales department and plan to drive to the Project Site to utilize the 14th Street vehicular ingress to the Project and (ii) notify customers who make an appointment to visit the service department to utilize the Santa Monica Boulevard vehicular ingress to the Project. (d) All MINI of Santa Monica employees shall be made aware, at their initial hiring and at least once annually thereafter, that sales and parts customers are to be directed to the Project's 14th Street vehicular ingress and service customers are to be directed to the Project's Santa Monica Boulevard vehicular ingress. 13. Customer and Employee Parking. (a) On -site customer parking shall be provided at no charge to the customers. (b) Areas designated for employee or customer parking shall not be used for vehicle storage or display. 14. Storage of Vehicles. MINI of Santa Monica shall not, for any period of time, park or store on any public street or alley vehicles for sale, to be repaired, that have been repaired, or that are part of an automobile rental operation associated with the dealership. 15. Control of Alley Traffic. Prior to issuance of Certificate of Occupancy for the Project, MINI of Santa Monica shall submit to the City a plan for controlling traffic associated with the Automobile Dealership in 14`" Court. Such plan shall MINI of Santa Monica - 22138 7.9.14 Page 61 be designed to limit the maximum speed of MINI of Santa Monica patrons, customers and employees to 15 miles per hour and shall include signage that confirms the 14`h Court driveway is for vehicle egress only, that turns from the driveway onto 14`h Court are limited to left turns only (out to Santa Monica Boulevard), and parking and loading prohibitions. 16. Noise Control. (a) There shall be no outdoor loudspeakers at the Automobile Dealership. Interior loudspeakers shall produce no more than 45 dba at the southernmost property line under normal operating conditions (e.g., with windows open if they are likely to be opened). (b) To minimize noise impacts on adjacent properties, no noise - generating auto service or repair equipment shall be operated outside of the Building. 17. Air Quality. (a) All mechanical ventilating equipment shall be directed to top story exhaust vents, which face away from abutting or adjacent residential properties. (b) Exhaust systems shall be equipped with appropriate and reasonably available control technology to minimize or eliminate noxious pollutants, which would otherwise be emitted. 18. Hours of Operation. Unless otherwise approved by the Planning Commission, the Automobile Dealership's service and sales department shall not be permitted to perform sales, service or repairs between the hours of 10 p.m. and 7 a.m. 19. During the term of this Agreement, MINI of Santa Monica shall, as part of its annual compliance report described in Section 10.2 of the Agreement, affirm its continued use of the test - driving, vehicle off - loading, and alley traffic control plans described in Conditions 9, 10 and 14 above. After the term of this Agreement, MINI of Santa Monica shall submit a letter annually in June affirming their continued use of the test - driving, vehicle off - loading, and alley traffic control plans described in Conditions 9, 10 and 14 above. Any changes to approved plans shall require approval of the Planning Director. 20. MINI of Santa Monica shall provide to City contact information for an on -site dealership community liaison including name, telephone number, and email address. Final Design 21. Plans for final design, landscaping, screening, trash enclosures, and signage shall be subject to review and approval by the Architectural Review Board. MINI of Santa Monica - 22138 7.9.14 Page 62 22. Landscaping plans shall comply with Subchapter 9.04.10.04 (Landscaping Standards) of the Zoning Ordinance including use of water - conserving landscaping materials, landscape maintenance and other standards contained in the Subchapter. 23. Refuse areas, storage areas and mechanical equipment shall be screened in accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas shall be of a size adequate to meet on -site need, including recycling. Notwithstanding Section 9.04.10.02.151 of the SMMC, the size and dimensions of the refuse area shall be as shown on the Project Plans. The Architectural Review Board in its review shall pay particular attention to the screening of such areas and equipment. Any rooftop mechanical equipment shall be minimized in height and area, and shall be located in such a way as to minimize noise and visual impacts to surrounding properties. Unless otherwise approved by the Architectural Review Board, rooftop mechanical equipment shall be located at least five feet from the edge of the roof. 24. No gas or electric meters shall be located within the required front or street side yard setback areas. The Architectural Review Board in its review shall pay particular attention to the location and screening of such meters. 25. 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. 26. As appropriate, the Architectural Review Board shall require the use of anti - graffiti materials on surfaces likely to attract graffiti. Construction Plan Requirements 27. 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. Standard Conditions 28. Mechanical equipment shall not be located on the side of any building which is adjacent to a residential building on the adjoining lot, unless otherwise permitted by applicable regulations. Roof locations may be used when the mechanical equipment is installed within a sound -rated parapet enclosure. 29. 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 MINI of Santa Monica - 22138 7.9.14 Page 63 submitted to the Community Noise Officer for review to ensure that noise levels do not exceed maximum allowable levels for the applicable noise zone. 30. The property owner shall insure any graffiti on the site is promptly removed through compliance with the City's graffiti removal program. Condition Monitoring 31. 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 32. Final auto parking, bicycle parking and loading layouts specifications shall be subject to the review and approval of the Strategic and Transportation Planning Division: http: / /www. smgov. net /uploadedFiles/ Departments /Transportation/Transportation Management/ParkingStandards.pdf 33. 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. smgov. net /uploadedFiles/ Departments /Transportation/Transportation _ManagementJW O.pdf 34. Slopes of all driveways and ramps used for ingress or egress of parking facilities shall be designed in accordance with the standards established by the Strategic and Transportation Planning Manager but shall not exceed a twenty percent slope. Please reference the following standards: http: / /www. smgov. net /uploadedFiles/ Departments /Transportation/Transportation Management/RampSlope.pdf PUBLIC LANDSCAPE 35. Except as provided on the Project Plans, 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). Except as provided on the Project Plans, no street trees shall be removed without the approval of the Public Landscape Division. 36. Prior to the issuance of a building permit all street trees that are adjacent to or will be impacted by the construction access (except for the street tree that will be removed as shown on the Project Plans) shall have tree protection zones MINI of Santa Monica - 22138 7.9.14 Page 64 established in accordance with the Urban Forest Master Plan. All tree protection zones established prior to the issuance of the demolition permit shall remain in place until demolition and /or construction has been completed. 37. During construction, replace or plant three new street trees immediately adjacent to the project site (two trees along 14`h Street and one tree along Santa Monica Boulevard) as shown on the Project plans and in accordance with Urban Forest Master Plan and in consultation with City Arborist. OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT 38. MINI of Santa Monica 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. MINI of Santa Monica shall execute an incentive agreement with Southern California Edison prior to the issuance of a building permit. 39. 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 40. MINI of Santa Monica shall be responsible for the payment of the following Public Works Department (PWD) permit fees prior to issuance of a building permit: a. Water Services b. Wastewater Capital Facility C. Water Demand Mitigation d. Fire Service Connection e. Tieback Encroachment, if any, f Encroachment of on -site improvements into public right -of -way g. Construction Waste Management — If the valuation of a project is at least $50,000 or if the total square feet of the project is equal to or greater than 1000 square feet, then the owner or contractor is required to complete and submit a Waste Management Plan. A performance deposit is collected for all Waste Management Plans equal to 3% of the project value, not to exceed $30,000. MINI of Santa Monica - 22138 7.9.14 Page 65 Some of these fees shall be reimbursed to MINI of Santa Monica in accordance with the City's standard practice should MINI of Santa Monica not proceed with development of the Project. In order to receive a refund of the Construction and Demolition performance deposit, the owner or contractor must provide receipts of recycling 70% of all materials listed on the Waste Management Plan. 41. 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. 42. 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. 43. 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. 44. Until 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. Water Resources 45. 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. 46. 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. 47. If the project involves dewatering, developer /contractor shall contact the LA Regional Water Quality Control Board (RWQCB) to obtain an NPDES Permit for discharge of groundwater from construction dewatering to surface water. For more information refer to: http:// www .waterboards.ca.gov /losangeles/ and search for Order # R4- 2003 -0111. 48. 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 MINI of Santa Monica - 22138 7.9.14 Page 66 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. 49. Absent City approval, MINI of Santa Monica shall not directly connect to a public storm drain pipe or direct site drainage to the public alley. 50. The fire services and domestic services 3- inches or greater must be above ground, on the applicant's site, readily accessible for testing. 51. MINI of Santa Monica is required to meet state cross - connection and potable water sanitation guidelines. Refer to requirements and comply with the cross - connections guidelines available at: http: // www.lapublichealth.org /eh/progs /envirp /eheross.htm. Prior to issuance of a Certificate of Occupancy, a cross - connection inspection shall be completed. 52. All new restaurants and cooking facilities at the site are required to install Gravity Grease Interceptors to pretreat wastewater containing grease. The minimum capacity of the interceptor shall be determined by using table 10 -3 of the 2007 Uniform Plumbing Code, Section 1014.3. All units shall be fitted with a standard final -stage sample box. The 2007 Uniform Plumbing Code guideline in sizing Gravity Grease Interceptors is intended as a minimum requirement and may be increased at the discretion of PWD, Water Resources Protection Program. 53. Plumbing fixtures that meet the standards for 20% water use reduction specified in the California Green Building Standards Code are required on all new development and remodeling where plumbing is to be added. Urban Water Runoff Mitigation 54. 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: h. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution Ordinance for the construction phase and post construction activities; i. Non- storinwater runoff, sediment and construction waste from the construction site and parking areas is prohibited from leaving the site; j. Any sediments or materials which are tracked off -site must be removed the same day they are tracked off -site; MINI of Santa Monica - 22138 7.9.14 Page 67 k. 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; 1. No runoff from the construction site shall be allowed to leave the site; and m. Drainage control measures shall be required depending on the extent of grading and topography of the site. n. 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. 55. 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 56. 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. 57. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable during the grading and construction phase of the project. 58. Upon completion of the project, sidewalks, curbs, gutters, paving and driveways which need replacing or removal as a result of the project or needed improvement prior to the project, as determined by the PWD shall be reconstructed to the satisfaction of the PWD. Design, materials and workmanship shall match the adjacent elements. This is especially true for areas within the City that have architectural concrete, pavers, tree wells, art elements, special landscaping, etc. 59. Upon completion of the project, street and alley sections adjacent to the development shall be replaced as determined by the PWD. This typically requires full reconstruction of the street or alley in accordance with City of Santa Monica standards for the full adjacent length of the property. Utilities 60. 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 MINI of Santa Monica - 22138 7.9.14 Page 68 to measures associated with joint trench opportunities, location of tie -back and other underground installations, telecommunications conduit size and specifications, fiber optic cable specifications, telecommunications vault size and placement and specifications, interior riser conduit and fiber optic cable, and adjacent public right of way enhancements. Developer shall install two Telecommunication 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 Telecommunication 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 Ikm terminating in a new Telecommunications Vault for future interconnection with City network. The final telecommunications design plans for the project site shall be submitted to and approved by the City of Santa Monica Information Systems Department prior to approval of project. a. Project shall comply with City of Santa Monica Telecommunications Guidelines. b. Project shall comply with City of Santa Monica Right -of -Way Management Ordinance No. 2129CCS, Section 3 (part), adopted 7/13/04 61. Prior to submittal of plan check application, MINI of Santa Monica 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, MINI of Santa Monica shall pay for undergrounding of all overhead utilities within the Project Site. MINI of Santa Monica is not required to pay the City to underground the existing utility poles outside of the Project Site, including along 14th Court. 62. Location of Southern California Edison electrical transformer and switch equipment/structures must be clearly shown of the development site plan and other appropriate plans within the project limits. The SCE structures serving the proposed development shall not be located in the public right -of -way. Resource Recovery and Recycling 63. Development plans must show the refuse and recycling (RR) area dimensions to demonstrate adequate and easily accessible area. If the RR area is completely enclosed, then lighting, ventilation and floor drain connected to sewer will be required. Notwithstanding Section 9.04.10.02.151 of the SMMC, the dimensions of the RR area shall be as shown on the Project Plans. 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. MINI of Santa Monica - 22138 7.9.14 Page 69 64. Prior to issuance of a building permit for the project, MINI of Santa Monica shall submit a waste management plan, a map of the enclosure and staging area with dimensions and a recycling plan to the RRR Division for its approval. All commercial businesses generating 4 cubic yards of trash per week must have a recycling program in place for its employees and clients /customers. Show compliance with,these requirements on the building plans. Pursuant to the project architect's prior meeting with the RRR Division, the dimensions of the RRR area shall be as provided on the Project Plans. 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. 66. Nothing contained in the Development Agreement for this Project or these Conditions of Approval shall prevent MINI of Santa Monica 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. 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 67. 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. 68. 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 MINI of Santa Monica - 22138 7.9.14 Page 70 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. 69. Buildings four or more stories in height shall be provided with not less than one standpipe during construction. 70. 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. 71. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum rating of 2A- 10B:C. Extinguishers shall be located on every floor or level. Maximum travel distance from any point in space or building shall not exceed 75 feet. Extinguishers shall be mounted on wall or installed in cabinet no higher than 4 ft. above finished floor and plainly visible and readily accessible or signage shall be provided. 72. An automatic fire extinguishing system complying with UL 300 shall be provided to protect commercial -type cooking or heating equipment that produces grease - laden vapors. A separate plan submittal is required for the installation of the system and shall be in accordance with UFC Article 10, NFPA 17A and NFPA 96. Provide a Class "K" type portable fire extinguisher within 30 feet the kitchen appliances emitting grease -laden vapors. 73. 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) 74. 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. 75. 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. 76. Show ALL door hardware intended for installation on Exit doors. MINI of Santa Monica - 22138 7.9.14 Page 71 77. 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) 78. Stairway Identification shall be in compliance with CBC 1022.8 79. Floor - level, exit signs are required in Group A, E, I, R -1, R -2 and R -4 occupancies. 80. In buildings two stories in height at least one elevator shall conform to the California Building Code Chapter 30 section 3003.5a for General Stretcher Requirements for medical emergency use. a. The elevator entrance shall not be less than 42 inches wide by 72 inches high. b. The elevator car shall have a minimum clear distance between walls excluding return panels of not less than 80 inches by 54 inches. c. Medical emergency elevators shall be identified by the international symbol (star of life) for emergency elevator use. The symbol shall be not less than 3- inches in size. 81. 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. 82. 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 83. An approved fire alarm system shall be installed as follows: a. 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. MINI of Santa Monica - 22138 7.9.14 Page 72 b. Group E Occupancies having occupant loads of 50 or more shall be provided with an approved manual fire alarm system. c. Group R -1, R -2 Apartment houses containing 16 or more dwelling units, in building three or more stories in height R -2.1 and R -4 Occupancies shall be provided with a manual alarm system. Smoke detectors shall be provided in all common areas and interior corridors of required exits. Recreational, laundry, furnace rooms and similar areas shall be provided with heat detectors. 84. Plans and specifications for fire alarm systems shall be submitted and approved prior to system installation 85. 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. It. Standby power and light and emergency systems. MINI of Santa Monica - 22138 7.9.14 Page 73 i. Exits j. Seismic consideration. Total Floor Area of Building or Project • Basic Allowable Floor Area • Floor Area for each room or area e Detail allowable area increase calculations Corridor Construction • Type of Construction • Detail any and all code exceptions being used Occupant Load Calculations • Occupancy Classification for each room or area. e Occupant Load Calculation for each room or area based on use or occupancy • Total Proposed Occupant Load Means of Egress e Exit width calculations • Exit path of travel e Exit Signage and Pathway Illumination (low level exit signage) Atria - Atria shall comply with CBC Section 404 as follows: • Atria shall not be permitted in buildings containing Group H Occupancies. • The entire building shall be sprinklered. • A mechanically operated smoke - control system meeting the requirements of Section 909 and 909.9 shall be installed. • Smoke detectors shall be installed in accordance with the Fire Code. • Except for open exit balconies within the atrium, the atrium shall be separated from adjacent spaces by one -hour fire - resistive construction. See exceptions to Section 404.6. • 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. MINI of Santa Monica - 22138 7.9.14 Page 74 ® Standby power shall be provided for the atrium and tenant space smoke - control system. Sections 404.7 and 909.11. ® The interior finish for walls and ceilings of the atrium and all unseparated tenant spaces shall be Class I. Section 404.8. Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only contain furnishings and decorative materials with potential heat of combustion less than 9,000 Btu's per pound. All furnishings to comply with California Bureau of Home Furnishings, Technical Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies." All furnishings in public areas shall comply with California Bureau of Home Furnishings, Technical Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies." Los Angeles County Fire 86. Fire Flow Requirements I. 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 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 MINI of Santa Monica - 22138 7.9.14 Page 75 1. The Department's Fire Prevention Engineering Section shall review building plans and apply fire flow and hydrant spacing requirements in accordance with this regulation. III. POLICY A. The procedures, standards, and policies contained herein are provided to ensure the adequacy of, and access to, fire protection water and shall be enforced by all Department personnel. 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. 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. 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. MINI of Santa Monica - 22138 7.9.14 Page 76 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 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. (1) Design features shall assist in allowing distance modifications. b. Factors considered when allowing distance modifications. MINI of Santa Monica - 22138 7.9.14 Page 77 (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. C. Adequate flushing of the installation. 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 property owner to maintain on- site hydrants. a. Hydrants shall be painted with two coats of red primer and one coat of red, with the exception of the stem and threads, prior to flow test and acceptance of the system. b. No barricades, walls, fences, landscaping, etc., shall be installed or planted within three feet of a fire hydrant. MINI of Santa Monica - 22138 7.9.14 Page 78 E. Public Hvdrant Flow Procedure The minimum acceptable flow from any existing 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 1,250 GPM and below Two hydrants 1,251— 3,500 GPM flowing simultaneously Three hydrants 3,501— 5,000 GPM flowing simultaneously 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 I 1 and 12). G. Hydrant Specifications All required public and on -site fire hydrants shall be installed to the following specifications prior to flow test and acceptance of the system. 1. Hydrants shall be: a. Installed so that the center line of the lowest outlet is between 14 and 24 inches above finished grade MINI of Santa Monica - 22138 7.9.14 Page 79 b. Installed so that the front of the riser is between 12 and 24 inches behind the curb face C. Installed with outlets facing the curb at a 45- degree angle to the curb line if there are double outlet hydrants d. Similar to the type of construction which conforms to current A.W.W.A. Standards e. Provided with three -foot unobstructed clearance on all sides. f. Provided with approved plastic caps g. Painted with two coats of red primer and one coat of traffic signal yellow for public hydrants and one coat of red for on- site hydrants, with the exception of the sterns 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). MINI of Santa Monica - 22138 7.9.14 Page 80 Barricade /Clearance Details CONCRETECAP V BARRICADE POST CONCRETE FILLED 3'MIN, MIN, A` DIA SCHEDULE 40 STEEL, SEE 1707E Ht CONCRETE 4- MIN. -" I 111 Figure 1 Figure 2 MINI of Santa Monica - 22138 7.9.14 Page 81 t' DE` �s �d1 iy FA 4 AN[ 1 i I I 1 � � 1 as° O,yO'... yrrdd PLAN FIRE HYDRANT BARRICADES (TYPICAL) Figure 3 _ 6'x4 "x2I /2" Notes: HYDRANT 1. Constructed of steel not lestthafour inches in diame , six inches if heavy truck traffic is anticipated, schedule 40 steel and concrete frl 2. Posts shall be set not leEs than three feetdeep 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 frreground operations. Notice apparatus (hydra- assist - valve) connected to hydrant and the required area. Figure 3 shows the importance of not constructing barricades or other obstructions in front of hydrant outlets. H. Blue reflective hvdrant markers replacement polic 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. MINI of Santa Monica - 22138 7.9.14 Page 82 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 I* BUILDING SIZE (First floor area) Fire Flow* (1) (2) Duration Hydrant Spacing Under 3,000 sq. ft. 1,000 GPM 2 hrs 300 ft 3,000 to 4,999 sq. ft. 1,250 GPM 2 hrs 300 ft 5,000 to 7,999 sq. ft. 1,500 GPM 2 hrs 300 ft 8,000 to 9,999 sq. ft. 2,000 GPM 2 hrs 300 ft 10,000 to 14,999 sq. ft. 2,500 GPM 2 hrs 300 ft 15,000 to 19,999 sq. ft. 3,000 GPM 3 hrs 300 ft 20,000 to 24,999 sq. ft. 3,500 GPM 3 hrs 300 ft 25,000 to 29,999 sq. ft. 4,000 GPM 4 hrs 300 ft 30,000 to 34,999 sq. ft. 4,500 GPM 4 hrs 300 ft 35,000 or more sq. ft. 5,000 GPM 5 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 III one -hour, Type III -N, Type IV, Type IV one hour, and Type V one -hour. This reduction shall be automatic and credited on all projects using these types MINI of Santa Monica - 22138 7.9.14 Page 83 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. MINI of Santa Monica - 22138 7.9.14 Page 84 EXHIBIT `B" SMMC ARTICLE 9 (PLANNING AND ZONING) On file with the City Clerk. MINI of Santa Monica - 22138 7.9.14 Page 85 EXHIBIT "F -1" I1�ZNa \iIr 1771►[ " �Zfi7_ \�fIC�7ZK�7�7. _ : a Local Hiring Policy olicy For Construction. MINI of Santa Monica shall implement a local hiring policy (the "Local Hiring Policy ") for construction of the Project, consistent with the following guidelines: 1. Put ose. The purpose of the Local Hiring Policy is to facilitate the employment by MINI of Santa Monica 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) by ensuring Targeted Job Applicants are aware of Project construction employment opportunities and have a fair opportunity to apply and compete for such jobs. 2. Findings. a. Approximately 73,000- 74,000 individuals work in the City. The City has a resident labor force of approximately 57,300. 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 7.6% 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 Construction jobs, this local hiring policy will facilitate job opportunities to City residents which would MINI of Santa Monica - 22138 7.9.14 Page 86 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. "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 MINI of Santa Monica 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 -1;' the Local Hiring Policy provides that the Targeted Job Applicants shall be considered for each On -Site Job in the following order of priority: a. First Priority: Any resident of a household with no greater than 80% Median Income that resides within the Low and Moderate Income Areas identified in Figure 3 -12 of the City of Santa Monica's 2013 -2021 Housing Element; b. Second Priority: Any resident of a household with no greater than 80% Median Income that resides within the City; and MINI of Santa Monica - 22138 7.9.14 Page 87 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 MINI of Santa Monica and its Contractors. 6. Outreach. So that Targeted Job Applicants are made aware of the availability of On -Site Jobs, MINI of Santa Monica or its Contractors shall advertise available On -Site Jobs in the Santa Monica Daily Press or similar local media and /or electronically on a city- sponsored website, if such a resource exists. In addition, MINI of Santa Monica 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: a. Local first source hiring programs b. Trade unions c. Apprenticeship programs at local colleges d. Santa Monica educational institutions e. Other non - profit organizations involved in referring eligible applicants for job opportunities Hiring. MINI of Santa Monica and its contractor(s) 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 make a good faith effort to hire Targeted Job Applicants when most qualified or equally qualified as other applicants. 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. Contractors are not precluded from advertising regionally or nationally for employees in addition to its local outreach efforts. 8. Term. The Local Hiring Policy shall continue to apply to the construction of the Project until the final certificate of occupancy for the Project has been issued by the City. MINI of Santa Monica - 22138 7.9.14 Page 88 EXHIBIT "F -2" LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT Local Hiring Policy For Permanent Employ. MINI of Santa Monica shall implement a local hiring policy (the "Local Hiring Policy "), consistent with the following guidelines: Propose. The purpose of the Local Hiring Policy is to facilitate the employment of residents of the City of Santa Monica (the "Targeted Job Applicants ") by the dealership, 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 57,300. 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 7.6% 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 MINI of Santa Monica - 22138 7.9.14 Page 89 employment base and reduce the impacts on the environment caused by long commuting times to jobs outside the area. Definitions. For purposes of this Exhibit "F -2 ", the following terms have the following meanings: a. "Low Income Individual" means a resident of the City of Santa Monica whose household income is no greater than 80% of the Median Income. b. "Median Income" means the median income for the Los Angeles -Long Beach Primary Metropolitan Statistical Area, as published from time to time by the City in connection with its Affordable Housing Production Program pursuant to SMMC Section 9.56. C. "On -Site Jobs" means all jobs on the Project site exclusive of the corner cafe, regardless of whether such job is in the nature of an employee or an independent contractor. d. "Dealership" means the operator of the car dealership 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 identified in Figure 3 -12 of the City of Santa Monica's 2013 -2021 Housing Element; 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 dealership is authorized to rely on the most recent year's income tax records (W -2) and proof of residency (e.g. driver's license, utility bill, voter registration) if voluntarily submitted by a prospective job applicant for purposes of assessing a Targeted Job Applicant's place of residence and income. 5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs. Notwithstanding the foregoing, the Local Hiring Policy shall not apply to temporary employees utilized while a permanent employee is temporarily absent or while a replacement is being actively sought for a recently - departed permanent employee. Furthermore, the Local Hiring Policy shall not (a) preclude the re- hiring of a prior employee or the transfer of an existing employee from another location or (b) apply to any employment opportunities which may require a level MINI of Santa Monica - 22138 7.9.14 Page 90 of confidentiality or that may not be reasonably advertised to the general public without causing harm to the Dealership. 6. Recruitment. a. Local Hiring Goal. MINI of Santa Monica 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 MINI of Santa Monica, nor shall MINI of Santa Monica be deemed to be in Default under the Development Agreement, if such goal is not achieved. MINI of Santa Monica shall report its actual local hiring results to the City as part of its annual report as mandated by Section10.2 of the Development Agreement. b. Advanced Local Recruitment - Initial Hiring for New Car Dealership 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 this new car dealership, Dealership 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/or electronically on a City - sponsored website, if such a resource exists. In addition, Dealership shall consult with and provide written notice to the persons in charge of (a) Santa Monica College Business Department's Introductory Automotive Technician program and (b) Santa Monica High School's Regional Occupational Program (which includes an Automotive Technology program). In the event one or both of these programs no longer exists or Dealership chooses to consult with and provide written notice to additional first source hiring organizations, which may include but are not limited to the following: (i) Local first source hiring programs (ii) Trade unions, if applicable (iii) Apprenticeship programs at local colleges (iv) Santa Monica educational institutions (v) Other non - profit organizations involved in referring eligible applicants for job opportunities Dealership shall hold the positions open for no less than 30 days in order to allow for referrals from the first source hiring organizations. Dealership shall review information provided by the selected organizations with respect to all applicants referred by such organizations and interview those individuals who, following a review of such information, are determined by the Dealership to meet the Dealership's written minimum qualifications for the position. Dealership shall maintain a written record explaining the reasons for not selecting any individual MINI of Santa Monica - 22138 7.9.14 Page 91 referred to Dealership by the selected organizations who was interviewed by the Dealership for the position. C. Advanced Local Recruitment - Subsequent Hiring. For subsequent On- Site Jobs, 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, Dealership 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, Dealership is not precluded from advertising regionally or nationally for employees. Hiring. Dealership shall consider in good faith all applications submitted by Targeted Job Applicants for On -Site Jobs in accordance with its normal practice to hire the most qualified candidate for each position and shall be make good faith efforts to hire Targeted Job Applicants when such Applicants are most qualified or equally qualified as other applicants. The City acknowledges that the Dealership shall determine in its 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. Dealership 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. In addition to implementation of the Local Hiring Policy, the FHC can have other work duties unrelated to the Local Hiring Policy. 9. Term. The Local Hiring Policy shall apply for the life of the Project. MINI of Santa Monica - 22138 7.9.14 Page 92 EXHIBIT "G" 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. Indicate where any cranes are to be located for erection/construction; C. Describe how much of the public street, alleyway, or sidewalk is proposed to be used in conjunction with construction; d. Set forth the extent and nature of any pile- driving operations; e. Describe the length and number of any tiebacks which must extend under the public right -of -way and other private properties; f. Specify the nature and extent of any dewatering and its effect on any adjacent buildings; g. Describe anticipated construction- related truck routes, number of truck trips, hours of hauling and parking location; h. Specify the nature and extent of any helicopter hauling; i. State whether any construction activity beyond normally permitted hours is proposed; j. Describe any proposed construction noise mitigation measures, including measures to limit the duration of idling construction trucks; k. Describe construction- period security measures including any fencing, lighting, and security personnel; 1. Provide a grading and drainage plan; m. Provide a construction - period parking plan which shall minimize use of public streets for parking; MINI of Santa Monica - 22138 7.9.14 Page 93 n. List a designated on -site construction manager; o. Provide a construction materials recycling plan which seeks to maximize the reuse /recycling of construction waste; P. Provide a plan regarding use of recycled and low - environmental- impact materials in building construction; and q. 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: • Diesel - powered equipment such as booster pumps or generators should be replaced by electric equipment to the extent feasible; and MINI of Santa Monica - 22138 7.9.14 Page 94 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 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. 8. 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. 9. 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. 10. During 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: 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. ii. 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. iii. Soils stockpiles shall be covered. MINI of Santa Monica - 22138 7.9.14 Page 95 iv. Onsite vehicle speeds shall be limited to 15 mph. V. 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. vi. An appointed construction relations officer shall act as a community liaison concerning onsite construction activity including resolution of issues related to PM 10 generation. vii. 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). viii. All active portions the construction site shall be sufficiently watered three times a day to prevent excessive amounts of dust. 7. MINI of Santa Monica shall prepare a notice, subject to the review by the Director of Planning and Community Development, that lists all construction mitigation requirements, permitted hours of construction, and identifies a contact person at City Hall as well as the developer who will respond to complaints related to the proposed construction. The notice shall be mailed to property owners and residents of the neighborhood within 1000 feet of the Project at least five (5) days prior to the start of construction. 8. 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. 9. A copy of these conditions shall be posted in an easily visible and accessible location at all times during construction at the project site. The pages shall be laminated or otherwise protected to ensure durability of the copy. 10. 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 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. 11. Construction period signage shall be subject to the approval of the Architectural Review Board. MINI of Santa Monica - 22138 7.9.14 Page 96 EXHIBIT "H" 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: Christopher M. Harding ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made and entered into by and between , a ( "Assignor "), and ( "Assignee "). RECITALS A. The City of Santa Monica ( "City ") and Assignor entered into that certain Development Agreement dated , 2014 (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 for the Project Site (collectively, the "Project Approvals "). C. Assignor intends to sell, and Assignee intends to purchase, the Project Site. D. In connection with such purchase and sale, Assignor desires to transfer all of the Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Project Site. Assignee desires to accept such assignment from Assignor and assume the obligations of Assignor under the Development Agreement and the Project Approvals with respect to the Project Site. THEREFORE, the parties agree as follows: 1. Assignment. Assignor hereby assigns and transfers to Assignee all of Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Project Site. Assignee hereby accepts such assignment from Assignor. MINI of Santa Monica - 22138 7.9.14 Page 97 2. Assumption. Assignee expressly assumes and agrees to keep, perform, and fulfill all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled by Assignor under the Development Agreement and the Project Approvals with respect to the Project Site. 3. Effective Date. The execution by City of the attached receipt for this Agreement shall be considered as conclusive proof of delivery of this Agreement and of the assignment and assumption contained herein. This Agreement shall be effective upon its recordation in the Official Records of Los Angeles County, California, provided that Assignee has closed the purchase and sale transaction and acquired legal title to the Project Site. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below. "ASSIGNOR" "ASSIGNEE" MINI of Santa Monica - 22138 7.9.14 Page 98 RECEIPT BY CITY The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the City of Santa Monica on this day of , CITY OF SANTA MONICA IC MINI of Santa Monica - 22138 7.9.14 Page 99 Planning Director Approved and adopted this 22nd day of July, 2014. 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. 2463 (CCS) had its introduction on July 8, 2014, and was adopted at the Santa Monica City Council meeting held on July 22, 2014, by the following vote: Ayes: Councilmembers: Davis, Holbrook, McKeown, Vazquez, Mayor O'Connor, Mayor Pro Tern O'Day Noes: Councilmembers: None Absent: Councilmembers: Winterer A summary of Ordinance No. 2463 (CCS) was duly published pursuant to California Government Code Section 40806 . ATTEST: Sarah P. Gorman, City Clerk