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O2475City Council Meeting: 11 -25 -2014 Santa Monica, California ORDINANCE NUMBER 2475 (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 PICO ELEVEN, LLP WHEREAS, on June 12, 2012, PICO ELEVEN, LLP, hereinafter "Developer," submitted an application for a development agreement ('Development Agreement') which involves the construction of a 32,088 square -foot, 45- foot -tall residential building consisting of 32 two- bedroom rental units and two -level subterranean parking garage consisting of 64 parking spaces, with 4 of these units affordable for occupancy by 50% Income Households and 11 additional units price- restricted ( "the Project'); and WHEREAS, this project is an infill housing project exempt from the California Environmental Quality Act pursuant to CEQA Section 21159.24; 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 consists of a multi - family building containing thirty -two large, two- bedroom units with large outdoors spaces that would be developed in conformity with the High Density Housing land use designation of the LUCE. (b) Consistent with LUCE Goal LU 10 and LU Policy 10.2, which requires new development to contribute directly to the community's core social, physical and transportation goals through mechanisms such as community benefits, the proposed project provides 4 on -site affordable housing units for occupancy by 50% Income Households and 11 additional price- restricted units, is a LEEDO Platinum building that incorporates widened sidewalks and other sustainable design features, provides a contribution to the City's transportation infrastructure, includes a TDM plan to help reduce vehicle trips, and provides a contribution to open space. (c) Consistent with LUCE Policy LU 10.2, which requires new development that requests height above the base to provide measurable benefits to foster complete neighborhoods and support the goals of the LUCE, the proposed project provides 4 on -site affordable housing units for occupancy by 50% Income Households and 11 additional price- restricted units, is a LEEDO Platinum building that incorporates widened sidewalks and other sustainable design features, provides a contribution to the City's transportation infrastructure, includes a TDM plan to help reduce vehicle trips, and provides a contribution to open space. (d) Consistent with LUCE Policies H1.1 through H1.7, the proposed project provides four affordable housing units subject to the City's Affordable Housing Production Program and the City has provided direct financial assistance by waiving specified fees and taxes for these units. 2 (e) Consistent with Housing Element Policy 2.4, which encourages the distribution of affordable housing throughout the City, the proposed project provides four affordable housing units subject to the City's Affordable Housing Production Program. (f) Consistent with Housing Element Policy 3.4, which encourages the replacement of multi - family housing that is demolished, the proposed project will provide thirty -two housing units. 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 Pico Eleven, LLP, 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. 3 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: Aim t MA HA J ES MOU RIE City ttorne F1 EXHIBIT 1 5 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 PICO ELEVEN, LLC ,2014 Table of Contents RECITALS.................................................................................................. ..............................1 ARTICLE1 DEFINITIONS ........................................................................ ............................... 3 ARTICLE 2 DESCRIPTION OF THE PROJECT ...................................... ............................... 5 2.1 General Description ................................................................... ..............................5 2.2 Principal Components of the Project ......................................... ..............................5 2.3 No Obligation to Develop .......................................................... ..............................5 2.4 Vested Rights ............................................................................. ..............................6 2.5 Permitted Uses ........................................................................... ..............................8 2.6 Significant Project Features and LUCE Community Benefits .. ..............................8 2.7 Local Preference Housing ......................................................... .............................18 2.8 Parking ...................................................................................... .............................18 2.9 Design ....................................................................................... .............................19 ARTICLE 3 CONSTRUCTION ................................................................ ............................... 20 3.1. Construction Mitigation Plan .................................................... .............................20 3.2. Construction Hours ................................................................... .............................20 3.3. Outside Building Permit Issuance Date .................................... .............................20 3.4. Construction Period .................................................................. .............................21 3.5. Tiebacks .................................................................................... .............................21 3.6. Damage or Destruction ............................................................. .............................21 3.7. Construction Staging ................................................................. .............................21 ARTICLE 4 PROJECT FEES, EXACTIONS, AND CONDITIONS ....... ............................... 21 4.1 Fees, Exactions, and Conditions ............................................... .............................21 4.2 Conditions on Modifications ..................................................... .............................22 4.3 Implementation of Conditions of Approval .............................. .............................22 ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS ........... 22 5.1 Development Standards for the Property; Existing Regulations ...........................22 5.2 Permitted Subsequent Code Changes ....................................... .............................23 5.3 Common Set.of Existing Regulations ....................................... .............................25 5.4 Conflicting Enactments ............................................................. .............................25 5.5 Timing of Development ............................................................ .............................25 ARTICLE 6 ARCHITECTURAL REVIEW BOARD .............................. ............................... 25 6.1 Architectural Review Board Approval ..................................... .............................26 6.2 Expiration of ARB Approval .................................................... .............................26 6.3 Concurrent Processing .............................................................. .............................26 ARTICLE 7 CITY TECHNICAL PERMITS ............................................ ............................... 26 7.2 Diligent Action by City ............................................................. .............................26 7.3 Conditions for Diligent Action by the City ............................... .............................27 7.4 Duration of Technical City Permits .......................................... .............................28 7.5 Accessibility of Deed - Restricted Affordable Units .................. .............................28 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 .......................... ............................... 29 10.1 City Review .............................................................................. .............................29 10.2 Evidence of Good Faith Compliance ........................................ .............................29 10.3 Information to be Provided to Developer ................................. .............................30 10.4 Notice of Breach; Cure Rights .................................................. .............................30 10.5 Failure of Periodic Review ....................................................... .............................30 10.6 Termination of Development Agreement ................................. .............................30 10.7 City Cost Recovery ................................................................... .............................30 ARTICLE11 DEFAULT ............................................................................ ............................... 31 11.1 Notice and Cure ........................................................................ .............................31 11.2 Remedies for Monetary Default ................................................ .............................31 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 ......................................... .............................34 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 2 13.2 Release Upon Transfer .............................................................. .............................37 ARTICLE 14 INDEMNITY TO CITY ....................................................... ............................... 38 14.1 Indemnity .................................................................................. .............................38 14.2 City's Right to Defense ............................................................. .............................38 ARTICLE 15 GENERAL PROVISIONS ................................................... ............................... 38 15.1 Notices ...................................................................................... .............................38 15.2 Entire Agreement; Conflicts ..................................................... .............................39 15.3 Binding Effect ........................................................................... .............................39 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 .......................................................................................... .............................40 15.8 Excusable Delays ...................................................................... .............................41 15.9 Governing Law ......................................................................... .............................42 15.10 Cooperation in Event of Legal Challenge to Agreement .......... .............................42 15.11 Attorneys' Fees ......................................................................... .............................42 15.12 Recordation ............................................................................... .............................42 15.13 No Waiver ................................................................................. .............................42 15.14 Construction of this Agreement ................................................ .............................42 15.15 Other Governmental Approvals ................................................ .............................42 15.16 Venue ........................................................................................ .............................44 15.17 Exhibits ..................................................................................... .............................44 15.18 Counterpart Signatures .............................................................. .............................44 15.19 Certificate of Performance ........................................................ .............................45 15.20 Interests of Developer ............................................................... .............................45 15.21 Operating Memoranda .............................................................. .............................45 15.22 Acknowledgments, Agreements and Assurance on the Part of Developer . .......... 45 15.23 Waiver of Protest ...................................................................... .............................46 15.24 Not a Public Dedication ............................................................ .............................46 15.25 Other Agreements ..................................................................... .............................46 15.26 Severability and Termination .................................................... .............................46 [c3 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement "), dated 2014 ( "Effective Date "), is entered into by and between, PICO ELEVEN, LLC, a California limited liability company ( "Developer"), and the CITY OF SANTA MONICA, a municipal corporation organized and existing pursuant to the laws of the State of California and the Charter of the City of Santa Monica (the "City "), with reference to the following facts: RECITALS A. Pursuant to California Government Code Section 65864 et seq., Chapter 9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No. 2466 (collectively, the "Development Agreement Statutes "), the City is authorized to enter into binding development agreements with persons or entities having a legal or equitable interest in real property for the development of such real property. B. Developer is the owner of approximately 19,000 square feet of land located in the City of Santa Monica, State of California, commonly known as 1112 -1122 Pico Boulevard, as more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). The Property is currently vacant and unimproved. C. The City has included the Property within the High Density Housing land use designation under the City's recently adopted Land Use and Circulation Element of its General Plan (the "LUCE "). To aid in the redevelopment of the Property, the City and Developer desire to allow Developer to construct a new building and related improvements. D. On June 6, 2012, Developer filed an application for a Development Agreement, pursuant to Santa Monica Municipal Code ( "SMMC ") Section 9.48.020 (the "Development Application "). The Development Application was designated by the City as Application No. DEV 12DEV -008. The Development Application is for the development of a four story residential apartment building containing 32 residential units and two levels of subterranean parking and is more fully described in this Agreement. The Project contains no commercial uses. Under the LUCE the Project is deemed a Tier 2 project. The Project is more particularly shown on the Project Plans attached hereto as Exhibit "B" (the "Project Plans "). E. On April 26, 2011, the City Council adopted Interim Ordinance No. 2356, which has been extended and modified on several occasions thereafter, including most recently by Santa Monica Interim Ordinance No. 2466 ( "IZO "). 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 as delineated in the Land Use Designation Map approved by the City Council on July 6, 2010 unless developed pursuant to a development agreement adopted in accordance with the Development Agreement Statutes. Adoption of this Agreement will allow for the issuance of permits for the Project. F. Developer has paid all necessary costs and fees associated with the City's processing of the Development Application and this Agreement. G. Following filing of the Development Application, the City determined that the project was exempt from the California Environmental Quality Act ( "CEQA ") pursuant to CEQA Guideline Section 21159.24. H. The primary purpose of the Project is to create an apartment building that contains family -sized units along with deed - restricted affordable units and would be considered a multi - family "preferred permitted project" as defined in Zoning Ordinance Table 9.04 -1 and is also consistent with the LUCE. L The Parties desire to enter into this Agreement in conformance with the Development Agreement Statutes and the LUCE in order to achieve the development of the Project on the Property. J. 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. K. This Agreement is consistent with the public health, safety, and welfare needs of the residents of the City and the surrounding region. The City has specifically considered and approved the impact and benefits of the development of the Project on the Property in accordance with this Agreement upon the welfare of the region. The Project will provide a number of public benefits, including without limitation the following: on- site affordable housing, a transportation demand management plan, shared parking, community physical improvements including widened sidewalks, bicycle storage, LEED® Gold equivalency, a transportation infrastructure contribution, local hiring, electric vehicle conduits, photovoltaic panels, family -sized residential units, and enhanced project design. L. 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. M. The City Council has also found that the additional density bonus units in the Project are consistent with both the City's Affordable housing Production Program (SMMC Chapter 9.56) and the City's standards for density bonuses in residential zones 2 as set forth in SMMC Part 9.04.10.14, and with the State Density Bonus provisions as set forth in California Gov't Code Sections 65915 et. seq. N. On August 27, 2014, the City's Planning Commission held a duly noticed public hearing on the Development Application and this Agreement. At such hearing, the Commission recommended approval of the Development Application and this Agreement subject to certain modifications to this Agreement. 0. On November 11, 2014, the City Council held a duly noticed public hearing on the Development Application and this Agreement and at such hearing the City made the necessary California Environmental Quality Act ( "CEO A ") findings that the Project qualifies for an exemption from CEQA pursuant to Public Resources Code Section 21159.24; and introduced Ordinance No. _ for first reading, approving this Agreement. P. On November 25, 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 The terms defined below have the meanings in this Agreement as set forth below unless the Agreement expressly requires otherwise: 1.1 "Agreement" means this Development Agreement entered into between the City and Developer as of the Effective Date. 1.2 "Affordable Units" means the two (2) dwelling units required by the City's Affordable Housing Production Program, and the additional the two (2) dwelling units being provided, for a total of four (4) dwelling units, pursuant to Sections 2.6.1(h), 2.6.2(a)(1) and 2.6.2(a)(2) of this Agreement and as designated on the Project Plans. 1.3 "ARB" means the City's Architectural Review Board. 1.4 `Building" means a new four -story residential building, as shown on the Project Plans (Exhibit `B "). 1.5 "City Council" means the City Council of the City of Santa Monica, or its designee. 1.6 "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. 3 1.7 "Certificate of Occupancy" means either a temporary or permanent Certificate of Occupancy, unless otherwise expressly specified in this Agreement. 1.8 "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. 1.9 "Effective Date" has the meaning set forth in Section 9.1 below. 1.10 "Floor Area" has the meaning given that term in Section 9.04.02.030.315 of the Zoning Ordinance. 1.11 "Floor Area Ratio" and "FAR" means floor area ratio as defined in Section 9.04.02.030.320 of the Zoning Ordinance. 1.12 "Including" means "including, but not limited to." 1.13 "LEEDS Rating System" means the Leadership in Energy and Environmental Design (LEED(M) for New Construction & Major Renovations adopted by the U.S. Green Building Council and implemented by the Green Building Certification Institute in effect at the time of ARB submittal. In the event no such system exists at the time Developer submits for ARB approval, an alternative green building rating system may be selected by the Developer subject to approval by the City. 1.14 "Legal Action" means any action in law or equity. 1.15 "Ministerial Approvals" mean any action which merely requires the City (including any board, commission, or department of the City and any officer or employee of the City), in the process of approving or disapproving a permit or other entitlement, to determine whether there has been compliance with applicable statutes, ordinances, regulations, or conditions of approval. 1.16 "Parties" mean both the City and Developer, and "Ear " means either the City or Developer, as applicable. 1.17 "Planning Director" means the Planning Director of the City of Santa Monica, or his or her designee. 1.18 "Price Regulated Units" mean the eleven (11) deed restricted dwelling units being provided pursuant to Section 2.6.2(a)(3) of this Agreement and as designated on the Project Plans. 1.19 "Project" means the development project reflected on the Project Plans. 1.20 "Project Plans" mean the plans for the Project that are attached to this Agreement as Exhibit "B ". 12 1.21 "Rental Housing" means dwelling units intended for Residential Use, as defined in Section 1.2 1, but which are not available for separate or individual ownership. The tern Rental Housing shall not include short-term rental housing or hotel uses as defined in SMMC Sections 9.04.02.030.778 and 9.04.02.030.410, respectively. 1.22 "Residential Use" means one or more rooms designed, occupied or intended for occupancy as primary living quarters in a building or portion thereof. 1.23 "Subterranean Space" consists of two levels in the Project below theoretical grade and designated as "P1" and "P2" as shown on the Project Plans attached as Exhibit `B ". 1.24 "Zoning Ordinance" means the City of Santa Monica Comprehensive Land Use and Zoning Ordinance (Chapter 9.04 of the SMMQ, and Santa Monica Interim Ordinance No. 2466, as the same are in effect on the Effective Date, as set forth in their entirety as part of Exhibit `B" (Planning and Zoning). ARTICLE 2 DESCRIPTION OF THE PROJECT 2.1 General Description. The Project includes all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans. If there is a conflict or inconsistency between the text of this Agreement and the Project Plans, the Project Plans will prevail; provided, however, that omissions from the Project Plans shall not constitute a conflict or inconsistency with the text of this Agreement. 2.2 Principal Components of the Project. The Project consists of the following principal components, as well as the other components delineated in the Project Plans, all of which are hereby approved by the City subject to the other provisions of this Agreement: (a) Construction of a new four -story residential building, including thirty-two (32) two - bedroom Rental Housing units as shown on the Project Plans. Of the 32 two - bedroom Rental Housing units, four (4) will be deed - restricted affordable Rental Housing units as specified in Sections 2.6.1(h) 2.6. 101) and 2.6.2(a)(2) as the Affordable Units, and eleven (11) will be deed restricted with price regulations as specified in Section 2.6. 2(a)(3) as the Price Regulated Units. (b) Sixty-Four (64) on -site vehicular parking stalls will be provided as shown on the Project Plans. 2.3 No Obligation to Develo 2.3.1 Except as specifically provided herein: 5 (a) Nothing in this Agreement shall be construed to require Developer to proceed with the construction of the Project or any portion thereof. (b) The decision to proceed or to forbear or delay in proceeding with construction of the Project or any portion thereof shall be in Developer's sole discretion. (c) Failure by Developer to proceed with construction of the Project or any portion thereof shall not give rise to any liability, claim for damages or cause of action against Developer, except as may arise pursuant to a nuisance abatement proceeding under SMMC Chapter 8.96, or any successor legislation. 2.3.2 Failure by Developer to proceed with construction of the Projector any portion thereof shall not result in any loss or diminution of development rights, except upon expiration of Developer's vested rights pursuant to this Agreement, or the termination of this Agreement. 2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary, Developer shall be required to implement all conditions 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 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 Developer shall maintain a complete copy of the Project Plans, stamped "Approved" by the City, in its offices or at the Project site. The Project Plans to be maintained by the City and Developer shall be in a half -size set. Further detailed plans for the construction of the Building and improvements, including, without limitation, structural plans and working drawings, shall be prepared by Developer subsequent to the Effective Date based upon the Project Plans. 11 2.4.2 Minor Modifications to Project. Developer with the approval of the Planning Director, may make minor changes to the Project or Project Plans ( "Minor Modifications ") without amending this Agreement; provided that the Planning Director makes the following specific findings that the Minor Modifications: (i) are consistent with the Project's approvals as approved by the City Council; (ii) are consistent with the provisions, purposes and goals of this Agreement; (iii) are not detrimental to the public health, safety, convenience or general welfare; and (iv) will not significantly and adversely affect the public benefits associated with the Project. The Planning Director shall notify the Planning Commission in writing of any Minor Modifications approved pursuant to this Section 2.4.2. Any proposed change which the Planning Director denies as not qualifying for a Minor Modification based on the above findings must be processed as a Major Modification. 2.4.3 Modifications Requiring Amendment to this Agreement. Developer shall not make any "Major Modifications" (defined below) to the Project without first amending this Agreement to permit such Major Modifications. A "Major Modification" means the following: (a) Reduction of any setback of the Project, as depicted on the Project Plans, if by such reduction the applicable setback would be less than is permitted in the applicable zoning district under the Zoning Ordinance in effect on the date such modification is applied for; (b) Any change in use not consistent with the permitted uses defined in Section 2.5 below; (c) A reduction in the number of Rental Housing units specified in Section 2.2(a) by more than 3 units. (d) Any increase in the number of parking spaces shown on the Project Plans by more than three (3) spaces; or any decrease in the number of parking spaces below 62; (e) Any material change in the number or location of curb cuts shown on the Project Plans; (f) Any variation in the design, massing or building configuration, including but not limited to, floor area and building height, that renders such aspects out of substantial compliance with the Project Plans after ARB Approval; and (g) Any change that would substantially reduce or alter the community benefits or significant project features as set forth in Section 2.6. 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. 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, Developer shall not be required to obtain any other Discretionary Approvals for such modification, except for ARB approval in the case of certain Major Modifications. 2.4.5 Right to Develop. Subject to the provisions of Section 3.3 below, during the Term (as defined in Section 9.2 below) of this Development Agreement, Developer shall have the vested rights (the "Vested Rights ") to (a) develop and construct the Project in accordance with the following: (i) the Project Plans (as the same may be modified from time to time in accordance with this Agreement); (ii) any Minor Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications which are approved pursuant to Section 2.4.3; and (iv) the requirements and obligations of Developer related to the improvements which are specifically set forth in this Agreement, and (b) use and occupy the Project for the permitted uses set forth in Section 2_5. Except for any required approvals from the ARB pursuant to Article 6 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 Proj ect: 2.5.1 Permitted Uses. Permitted Uses in the Project are as specified below: (a) Rental Housing, including the residential lobby, as shown on the Project Plans. (b) Vehicle parking, bicycle parking and storage as shown on the Project Plans. Except as specifically provided herein, Developer will not be required to obtain any additional Discretionary Approvals for any of the Permitted Uses. Permitted Uses may commence in the Project upon issuance of a City business license and without any discretionary planning approvals for such uses. 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. 9 2.6.1 Significant Project Features. Set forth below in this Section 2.6.1 are the significant project features that will be provided to the City: (a) new Rental Housing, including family -sized units; (b) tax revenues; (c) construction jobs; (d) City fee revenue for cultural arts; (e) City fee revenue for child care facilities; (f) Santa Monica- Malibu Unified School District fee revenue for capital improvements; (g) various standard public improvements and fees; and (h) Developer shall meet its affordable housing obligation through the development of two on -site units for 50% Income Households pursuant to the City's Affordable Housing Production Program (Chapter 9.56 of the Existing Regulations). 2.6.2 LUCE Community Benefits. Set forth below in this Section 2.6.2 are the additional community benefits that will be provided by the Project. (a) On -Site Deed Restricted Housing. (1) Instead of meeting part of its affordable housing obligation through the payment of a fee as allowed by the City's Affordable Housing Production Program (Chapter 9.56 of the Existing Regulations), Developer has agreed to provide and shall provide an additional (third) on -site affordable unit for occupancy by 50% Income Households pursuant to the City's Affordable Housing Production Program. (2) In addition to the affordable housing units Developer is providing pursuant to Sections 2.6. IN and 2.6.2(x)(1), Developer shall deed - restrict one (1) additional (fourth) Rental Housing unit for occupancy by households making 50% Income Households pursuant to the City's Affordable Housing Production Program (Chapter 9.56 of the Existing Regulations). The total number of affordable housing units provided in the Project that will be deed - restricted and subject to the provisions the City's Affordable Housing Production Program pursuant to Sections 2.6. IN, 2.6.2(a)(1), and 2.6.2(a)(2) shall be four affordable units for occupancy by 50% Income Households, which four (4) shall constitute the Affordable Units. (3) In addition to the four (4) Affordable Units, the Developer shall deed - restrict eleven (11) additional units as the Price Regulated Units as shown on the Project Plans, which deed restriction shall establish the provisions for regulating the rents on these units as set forth below: M (i) The Developer shall establish the initial rent for each of these units without restriction. (ii) The initial rent level established by the Developer shall constitute the base rent for proposes of computing all future rent adjustments during the tenancy of that tenant. (iii) Upon initial rental of each of these units, the Developer shall provide the following information to the Planning Director or his or her designee: (A) The name of the tenant(s) occupying the unit. (B) The initial date of tenancy. (C) The rental rate for the unit. (D) The amenities included in the rent (E) The amenities, including parking, that are provided for separate charge in addition to the rent and the amount of that charge, if any. (F) Evidence demonstrating that the tenant(s) have been informed in writing of the restricted rent adjustments established in this subsection as set forth in the lease. (iv) Except after termination of the tenancy upon just cause eviction pursuant to City Charter Section 2304, lawful court order or voluntary vacancy of the unit by the tenant(s), the rent and the charge for any amenity shall thereafter only be adjusted once annually on the anniversary date of the initial date of tenancy for said tenant with said adjustment being equal to 100% of the percentage increase in the Consumer Price Index (All Urban Consumers, Los Angeles, Riverside, Orange County region) ( "CPI"). This increase shall be calculated as the percentage increase in the CPI from the month that is two months before the month in which said tenant commenced their tenancy to the month that is two months before the month in which the adjustment is to occur. (v) Upon termination of the tenant(s) lease for just cause pursuant to City Charter Section 2304, lawful court order, or voluntary vacancy, the Developer may again establish the rent and amenity charges, if any, for the subsequent occupancy of the unit without restriction. (vi) Upon re- rental of the unit, the Developer shall provide the same information to the Planning Director as described above in Section 2.6.2(a)(3)(iii) and the reason that the unit had previously become vacant. 10 (vii) The rent level established by the Developer shall constitute the new base rent for purposes of computing all future rent adjustments during the tenancy of that tenant. (viii) Except upon just cause eviction pursuant to City Charter Section 2304, lawful court order or voluntary vacancy of the unit by the tenant(s), the rent and the charge for any amenity shall only be adjusted once annually on the anniversary date of the initial date of tenancy in accordance with the same CPI increase procedure as set forth above in Section 2.6.2(aR3)(iv). (ix) Subdivisions (v) through (viii) shall apply to each subsequent rental of the Price Regulated Units. (4) All Affordable Units and Price Regulated Units provided pursuant to Sections 2.6.1(h) and this Section 2.6.2(a) shall be two- bedroom units and specifically identified on the Project Plans. (b) Community Physical Improvements. Developer shall incorporate, construct, operate and maintain enhanced elements of the Building's design, including an Enhanced Walkway Area as shown on the Project Plans. Developer shall make the Enhanced Walkway accessible to the public at all times, except that Developer may limit public access to such Enhanced Walkway between the hours of 2:00 a.m. through 5:00 a.m. The public use of the Enhanced Walkway shall be: (i) consistent with the terms and conditions of this Agreement; (ii) solely for pedestrian access to and passive use of the Enhanced Walkway by the public, including walking, strolling, and similar activity; and (iii) compatible with Developer's development, use and enjoyment of the Project. No use other than passive use of the Enhanced Walkway by the public shall be permitted on the Enhanced Walkway. The Enhanced Walkway shall remain the private property of Developer with members of the public having only a license to occupy and use the Enhanced Walkway in a manner consistent with this Article 2. Nothing in this Agreement shall give members of the public the right, without the prior written consent of Developer, which consent may be conditioned or withheld by Developer in Developer's sole discretion, to engage in any other activity on the Enhanced Walkway, including, without limitation any of the following: (i) cooking, dispensing or preparing food; (ii) selling any item or engaging in the solicitation of money, signatures, or other goods or services; (iii) sleeping or staying overnight; (iv) using sound amplifying equipment; or (v) engaging in any illegal, dangerous, intimidating or other activity that Developer reasonably deems to be inconsistent with other uses in the Project or with the use of the Enhanced Walkway by other members of the public for the permitted purposes, such as excessive noise or boisterous activity, bicycle or skateboard riding skating or similar activity, being intoxicated, having offensive bodily hygiene, having shopping carts or other wheeled conveyances (except for wheelchairs and baby strollers /carriages), and Developer shall retain the right to cause persons engaging in such conduct to be removed from the Project. Should any such persons refuse to leave the Property, they may be deemed by Developer to be trespassing and Developer may contact local law 11 enforcement to request that appropriate law enforcement actions be taken. Developer shall be entitled to establish and post rules and regulations for use of the Enhanced Walkway consistent with the foregoing. Nothing in this Agreement or in the Project Plans shall be deemed to mean that the Enhanced Walkway is a public park or is subject to legal requirements applicable to a public park or other public space. Nothing in this Section 2.6.2(b) is intended to limit the rights of any 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 Developer under this Development Agreement with respect to limitations on use of the Enhanced Walkway. (c) Transportation Infrastructure Contribution. Developer shall pay to the City, prior to obtaining a building permit for the Project, the sum of Seventy Seven Thousand, Four Hundred Fifty Three Dollars and Fifty Five Cents ($77,453.55) to be used by the City for transportation infrastructure improvements. In calculating this sum, the Affordable Units were exempted entirely and the Price Regulated Units were provided a 50 percent discount. (d) Parks and Open Space Contribution. Developer shall pay to the City, prior to obtaining a building permit for the Project, the sum of One Hundred Forty Nine Thousand, Nine Hundred Eighty Dollars and Fifty Cents ($149,980.50) to be used by the City for off -site parks and open space. In calculating this sum, the Affordable Units were exempted entirely and the Price Regulated Units were provided a 50 percent discount. (e) Sustainable Design Features. Developer shall design the Building so that, at a minimum, the Building shall achieve LEED® "Platinum" certification by the Green Building Certification Institute under the LEEDS Rating System (the "Sustainable Design Status "). Developer shall confirm to the City that the design for the Building has achieved the Sustainable Design Status in accordance with the following requirements: (1) Prior to the submission of plans and documents to the City for Architectural Review Board review for the Building, Developer shall submit for review by the City a preliminary checklist of anticipated LEEDS credits along with a narrative describing the project's sustainable features to demonstrate that the Building is likely to achieve the Sustainable Design Status. The preliminary checklist will account for credits targeted to be achieved; however, the credits shown on the preliminary checklist may be subject to revision so long as the cumulative point total does not result in a lower Sustainable Design Status. (2) Prior to or concurrent with submittal of the plan check application for the Building, Developer shall: (i) Submit for review by the City an updated checklist of anticipated LEEDS credits along with a narrative describing the project's 12 sustainable features to demonstrate that the Building is likely to achieve the Sustainable Design Status. (ii) 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 "). (iii) Submit a Commissioning Plan which includes the elements specified in California Code of Regulations Title 24, Part 11, Section 5.410.2.3. (3) 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 Developer 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. (4) After the City's issuance of a final Certificate of Occupancy for the Building and after Developer has opened the Building or any portions thereof to the public, Developer shall be obligated to diligently pursue a determination from the Green Building Certification Institute on such application. (5) If the Building is ultimately denied certification for the Sustainable Design Status by the Green Building Certification Institute and Developer has exhausted all administrative remedies and appeals of that denial, then Developer shall be subject to a fine in the amount of four dollars per square foot of Floor Area. This fine may be waived if the City in its sole discretion determines that Developer made a good faith effort to achieve and meet the intent of the Sustainable Design Status. Alternatively, the fine may be waived if Developer 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 Developer fails to obtain this certification within this time period, the fine shall be reimposed and immediately payable to City. (f) Shared Parking. In furtherance of the LUCE's shared parking policies and consistent with providing sufficient on -site parking for the Project's users, Developer may make any unused on -site parking (parking that is not leased to a resident or required to be provided for Guest Parking in accordance with Section 2.8(a) below) available for monthly lease to third parties ( "Shared Parking ") if (i) Developer obtains a written report by a traffic and parking engineering firm that demonstrates that 13 the proposed additional parking spaces to be leased to third parties are not needed to meet the Project's peak parking demand, (ii) Developer submits such report to the City for review and approval, and (iii) the Planning Director approves the additional parking spaces for Shared Parking. The Planning Director shall have the authority to include reasonable conditions on the approval of any Shared Parking. Alternatively, Developer may make parking spaces available for Shared Parking in accordance with any SMMC procedure authorizing shared parking then in effect. (g) Solar Panels. Photovoltaic panels shall be installed on the roof deck in accordance with the Project Plans. (h) Local Hiring. Developer shall implement the local hiring program set forth on Exhibit "H ". (i) EV Conduit. Developer shall in the parking garage 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 two of the standard -sized parking spaces as shown on the Project Plans. If the Planning Director makes a determination based on demonstrated demand by drivers at the Project, that one or both of the spaces should be equipped with electric vehicle charging stations, then Developer shall install such electric vehicle charging stations. Such electric vehicle charging service shall be made available to Project residents at no charge and the cost of leasing a parking space equipped with electric vehicle charging stations in the Project shall be the same as the cost of leasing a regular non -tandem single -car parking space in the Project. All parking spaces with electric charging stations may be utilized without regard to vehicle type at Developer's sole and absolute discretion. Notwithstanding the foregoing, to the extent permissible by law, the Developer shall, within sixty days of Developer's receipt of a request from a tenant and to the extent such spaces are not already leased to tenants who own or long -term (2 years or more) lease electric vehicles, make those parking spaces equipped with electric charging stations available to tenants who then own or long -term (2 years or more) lease an electric vehicle on a first -come first served basis. Developer shall require any tenant leasing parking spaces equipped with electric vehicle infrastructure (be it panel capacity and conduit stubs for installation of electrical outlets or electrical vehicle charging stations) to enter into a contract acknowledging and agreeing that: (1) tenants of the Project who own or long -term lease an electric vehicle have a superior right to lease such EV spaces on a first -come first- served basis, and (2) if such tenant, as the current lessee of the EV space, does not then own or long -term lease an electric vehicle, that tenant's lease of the EV space may be terminated upon 30 -days' notice and its parking rights relocated to another available automobile parking space in the Project of Developer's choosing (irrespective of whether the location of such replacement parking space is less convenient than the EV space). 14 0) TDM Plan. Developer 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, Developer shall submit for review and approval by the Planning Director a TDM Plan as follows: (1) TDM Plan Format. Developer shall submit a TDM Plan including: (i) Project description; (ii) Site conditions that affect travel; (iii) Annual Budget to implement TDM Plan; (iv) TDM Plan Physical and Programmatic Elements; and (v) 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. (2) TDM Plan Physical Elements: (i) On -Site Transportation Information. The Developer shall provide on -site transportation information located where the greatest number of residents 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 other media, such as on a website or other digital means. Information shall include, but is not limited to, the following: • Current maps, routes, and schedules for public transit routes within one -half mile of the project site; • 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 locations (if any) and service information; • Walking maps and information about local services, restaurants and recreational activities within one -half mile of the project site; • Transportation information including regional ridesharing agency, local transit operators, and certified TMO where available; • Ridesharing promotional material supplied by trip reduction - oriented organizations; • Information for project tenants regarding the Project's TDM Plan and the physical and programmatic elements of the plan; and • Information for project tenants regarding local job opportunities. W (ii) Short -Term Bicycle Parking. Developer shall provide bicycle parking for use by short-term parkers in the amount of four (4) short-term bicycle spaces with signage identifying such spaces as being for "short- term" use, as shown on the Project Plans. (iii) Long -Term Bicycle Storage. The Developer shall provide a convenient and secure bicycle storage area for residents of the Project in the Subterranean Space that shall accommodate one bicycle per bedroom, as shown on the Project Plans. Up to 50 percent of the total long -term bike parking may be provided in a vertical or hanging rack. (iv) Bicycle Amenities. Bike tools and a repair stand shall be provided on -site for residents as shown on the Project Plans. The tools to be provided shall include, but shall not necessarily be limited to, the following: (i) a bicycle tire pump, (ii) a set of tire bars for replacing tire tubes, (iii) a set of monkey wrenches, and (iv) a set of Allen wrenches (hex keys). (v) Carshare Parking Space. Developer shall offer one parking space free of charge to a carsharing service for a minimum of one (1) car, if such a service is available from a third parry provider on terms mutually and reasonably acceptable to such third party provider and the Developer (including a reasonable indemnification as well as reasonable insurance from the car share provider). Any car share service operating at the Project will be available to the residents of the Project as well as other customers of the particular car share provider who do not reside at the Project. Required parking spaces may be used for carshare vehicles. The carshare parking space shall be located as identified on the Project Plans. (3) TDM Plan Programmatic Elements. (i) Transportation Welcome Package for Tenants. The Developer shall provide all new tenants of the Project with a welcome package on a per -unit basis upon the commencement of a new tenancy. The Transportation Welcome Package will inform tenants about the On -Site Transportation Information discussed in section (1) above and the transportation allowance identified in section (5) below. (ii) Marketing and Outreach. Developer shall prepare and implement a marketing and outreach program for the rental of units for the Project pursuant to Section 2.7 below that is designed to, among other things, encourage those that work in the area to consider residing in the Project. (iii) Transportation Management Association /Organization ( "TMO') Participation. Active participation in the formation and ongoing activities of a certified TMO (if a TMO that includes the project site is established), including: attendance at organizational meetings, providing travel and parking demand data to the TMO and providing project tenants with information regarding the services provided by the TMO. 16 (iv) Unbundled Parking. Developer shall lease its parking to residential tenants separately from the residential units. Such parking shall be leased at market rates established by Developer from time to time. However, Developer shall offer one (1) parking space to each of the tenant(s) of the affordable units at no additional cost. If an affordable unit tenant(s) declines a parking space, such tenant shall be entitled to a $100.00 per month reimbursement from the Developer for each month when he /she does not use such parking space. The aforementioned $100.00 monthly reimbursement amount shall increase each year on a cumulative basis by the same percentage increase allowed for the rents on the affordable units. Developer may, subject to the Planning Director's approval, reconfigure the parking spaces and operations from time -to -time in order to facilitate unbundling of parking. (v) Transportation Allowance. If individual tenants or occupants listed on the leases at the Project elect not to lease parking spaces at the Project and sign an acknowledgment that they do not own or long -term lease an automobile and will not own nor long -term lease an automobile for so long as they are in receipt of the transportation allowance identified in this section, Developer shall offer a transportation allowance to said tenants and occupants as long as they meet the then - applicable legal requirements to obtain a driver's license to operate an automobile in the State of California (i.e., the tenant or occupant listed on the lease is old enough to be able to obtain a driver's license). Any of such tenants or occupants accepting the transportation allowance shall be required to execute a contract acknowledging that they do not own or long -term lease an automobile. The transportation allowance shall be a cash payment equivalent to 50% of the then - current cost of the Metro EZ Transit Pass (or its successor equivalent). The transportation allowance made available under this section is to be made available on a monthly basis. In addition to the transportation allowance specified above, for all tenants, and for occupants at the Project ages 5 and older residing at the building on a full -time basis, the Developer shall make available, a universal transit pass, such as the Metro EZ Transit Pass or Big Blue Bus 30 -Day Pass, at a discount of at least 50% of the then current market rate for such transit pass. If the occupant is under the age of 18, the Developer may require that the child's parent or guardian signs an affidavit stating that the child permanently resides at the building on a full -time basis. Developer shall not be required to offer a discounted transit pass to any individual at the Project whose pass was sold or gifted to another. . The specific type of universal pass made available shall be in the sole discretion of the tenant or occupant. Additionally, in the tenant's or occupant's sole discretion, the tenant or occupant may choose an alternative transit pass of equal or less value than the universal transit pass, such as a Big Blue Bus 13 Ride Pass which shall similarly be made available at a discount of at least 50% of the then current price for such transit pass as charged by the transportation agency selling the pass. The transit passes shall be made available on a monthly basis. (vi) Shared Bikes. A minimum of two free on- site shared bicycles intended for resident and visitor use shall be provided unless bike share is available within a two -block radius of the project site. 17 (4) TDMPlan Monitoring. As a part of this Agreement's annual compliance report pursuant to Article 10 below, Developer shall submit an annual monitoring report on the TDM Plan implementation and performance the number of parking spaces leased per unit. (5) Changes to TDMPlan. Subject to approval by the City's Planning Director, the Developer may modify this TDM Plan provided the TDM Plan, as modified, can be demonstrated as equal or superior in its effectiveness at mitigating the traffic- generating effects of this Project. Any of the modifications to the TDM proposed by Developer (or proposed by the Planning Director and agreed to by the Developer) shall be subject to the reasonable approval by the City's Planning Director as a Minor Modification. (6) New TDM Ordinance. If the City adopts a new ordinance of general application that updates or replaces Chapter 9.16 of the SMMC and that applies to the geographic area in which the Property is located ( "New TDM Ordinance"), then, subject to the Planning Director's approval in his or her sole and absolute discretion, Developer may elect to comply with the New TDM Ordinance in lieu of complying with the TDM Plan outlined in this Agreement. 2.7 Local Preference Housing. Prior to issuance of a Certificate of Occupancy, the Developer shall prepare a marketing and outreach program for the rental of units for the Project, except for the four Affordable Units, which program shall be subject to the prior written approval of the Planning Director, which approval shall not be unreasonably withheld, conditioned or delayed. This marketing and outreach program shall target (i) employees of the City's police and fire departments, (ii) employees of local hospitals and healthcare providers, (iii) employees of the Santa Monica Malibu Unified School District and Santa Monica College, (iv) employees of businesses located within a half -mile radius of the Property, and (v) employees of businesses outside the half -mile radius but within the City of Santa Monica. For purposes of this Section 2.7, employees shall also include households with persons who are job training in Santa Monica or persons who were previously in the Santa Monica workforce but are now receiving unemployment, worker's compensation, vocational rehabilitation benefits, disability benefits or retirement benefits. In leasing units, the Developer shall give priority to applicants in the foregoing categories, provided that all such applicants meet generally applicable leasing qualifications and criteria imposed by such Developer. Nothing in this Agreement shall require that any units in the Project be occupied by such persons. 2.8 Parking. (a) The number of parking spaces provided in the Project shall be 64 spaces, including up to 26 tandem spaces and up to 40% percent compact parking spaces. A minimum of six of the side -by -side (non - tandem) parking spaces shall be reserved for guest parking. This Agreement and the Project Plans set forth the exclusive in off - street parking requirements for the Project and supersede all other minimum space parking requirements under the Existing Regulations, including without limitation Part 9.04.10.08 of the Zoning Ordinance. (b) No residential tenant or occupant of the Project who decides not to lease an on -site parking space(s) shall be entitled to obtain or renew Preferential Parking Permits from the City pursuant to Santa Monica Municipal Code Chapter 3.08 or any successor thereto ( "preferential parking regulations ") if the City's preferential parking regulations are amended to authorize this prohibition. Developer shall include notification of this prohibition on purchasing preferential parking permits from the City in any lease it executes with Project residents at a time when the SMMC allows such a prohibition. 2.9 Design. (a) Setbacks. Developer shall maintain the setbacks for the Project as set forth 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 45 feet as set forth on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the building height allowed by this Agreement, then the building height allowed by this Agreement shall prevail. (c) Stepbacks. Developer shall maintain the stepbacks for the Project as set forth on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the stepbacks required by this Agreement, then the stepbacks established by this Agreement shall prevail. (d) Permitted Projections. Projections shall be permitted as reflected on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the projections permitted by this Agreement, then the projections permitted by this Agreement shall prevail. (e) Signage. The location, size, materials, and color of any signage shall be reviewed by the ARB (or the Planning Commission on appeal) in accordance with the procedures set forth in Section 6.1 of this Agreement. All signs on the Property shall be subject to Chapter 9.52 of the SMMC (Santa Monica Sign Code) in effect as of the Effective Date, a copy of which is contained within Exhibit "E ". Directional signs for vehicles shall be located at approaches to driveways as required by the City's Strategic Transportation Planning Division. (f) Balconies. Balconies shall be provided in accordance with the Project Plans. 2.10 Contract with City. Developer hereby acknowledges that in approving this Development Agreement for the Project, the City is waiving or reducing certain fees IF' and taxes, including but not limited to, childcare, transportation impact, and parks and recreation fees and the City is modifying development standards otherwise applicable to the Project such as increasing unit density and other property development standards. In exchange for such forms of assistance from the City, which are of financial benefit to the Developer, Developer has entered into this contract with the City and agreed to the other conditions of the Development Agreement, including the requirement to provide and maintain the four (4) Affordable Units on site for occupancy by income qualified households subject to and consistent with the provisions of the City's Affordable Housing Program and to provide and maintain the eleven (11) additional Price Regulated Units subject to limitations on rent increases during the tenancy of each tenant. The parties agree and acknowledge that this is a contract providing forms of assistance to the Developer within the meaning of Civil Code Section 1954.52(b) and Chapter 4.3 of the State Planning and Zoning Laws, Government Code Section 65915 et. seq. With regard to the remaining 17 units not subject to any deed restrictions, there shall be no limitations or restrictions upon the initial rental rates and all subsequent rental rates and increases, including rent increases on existing tenants during their tenancies, notwithstanding anything to the contrary herein. City acknowledges and agrees that nothing in Civil Code Section 1954.52(b), Chapter 4.3 of the State Planning and Zoning Laws or Government Code Section 65915 et. seq. limit or restrict the initial and subsequent rental rates and increases, including any increases during a tenant's occupancy, that Developer may charge on said 17 units. ARTICLE 3 CONSTRUCTION 3.1. Construction Mitigation Plan. During the construction phase of the Project, Developer shall comply with the Construction Mitigation Plan attached as Exhibit "F" hereto. 3.2. Construction Hours. Developer shall be permitted to perform construction between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to 5:00 p.m. Saturday; provided that interior construction work which does not generate noise of more than thirty (30) decibels beyond the Property line may also be performed between the hours of 7:00 a.m. to 8:00 a.m, and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding the foregoing, pursuant to SMMC Section 4.12.110(e), Developer has the right to seek a permit from the City authorizing construction activity during the times otherwise prohibited by this Section. The Parties acknowledge and agree that, among other things, afterhours construction permits can be granted for concrete pours. 3.3. Outside Building Permit Issuance Date. If Developer has not been issued a building permit for the Project by the "Outside Building Permit Issuance Date" (defined below), then on the day after the Outside Building Permit Issuance Date, without any further action by either Party, this Agreement shall automatically terminate and be of no further force or effect. For purposes of clarity, if Developer has not been issued a 20 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 Buildine Permit Issuance Date" means the date that is the last day of the thirty -sixth (30h) full calendar month after the Effective Date; provided that the Outside Building Permit Issuance Date may be extended by applicable Excusable Delays and otherwise in accordance with the remainder of this paragraph. If the approval by the ARB of the Project design does not occur within four (4) months of the submittal by Developer to the ARB of the Project design, then the Outside Building Permit Issuance Date shall be extended one month for each additional month greater than four that the final ARB approval is delayed. At any time before the thirty -sixth (36th) full calendar month after the Effective Date, Developer may deliver written notice to the Planning Director, requesting an extension of the Outside Building Permit Issuance Date for an additional twelve (12) months. The Outside Building Permit Issuance Date may be administratively extended not more than one (1) time for an additional twelve (12) months. The Planning Director may grant such extension if Developer can demonstrate substantial progress has been made towards obtaining a building permit and show reasonable cause why Developer will not be able to obtain the building permit for the Project by the initial Outside Building Permit Issuance Date and can demonstrate that: (a) the condition of the Property will not adversely affect public health or safety and (b) the continued delay will not create any unreasonable visual or physical detriment to the neighborhood. 3.4. Construction Period. Construction of the Project shall be subject to the provisions of SMMC Section 8.08.070. 3.5. Tiebacks. City will provide Developer with tiebacks, subject to reasonable terms and conditions, for Pico Boulevard and Pico Court. Developer shall compensate the City for such tiebacks in accordance with the City's tieback fees then in effect. 3.6. Damage or Destruction. If the Project, or any part thereof, is damaged or destroyed during the term of this Agreement, Developer shall be entitled to reconstruct the Project in accordance with this Agreement if. (a) Developer obtains a building permit for this reconstruction prior to the expiration of this Agreement and (b) the Project is found to be consistent with the City's General Plan in effect at the time of obtaining the building permit. 3.7. Construction Staging. Developer may use the Pico Boulevard frontage and a portion of Pico Court for construction staging at City's customary costs and procedures or permits then in effect. ARTICLE 4 PROJECT FEES, EXACTIONS, AND CONDITIONS 4.1 Fees Exactions, and Conditions. Except as expressly set forth in Section 2.4.4 (relating to modifications), Section 2.6 (relating to Community Benefits), and 21 Section 5.2 (relating to Subsequent Code Changes) below, the City shall charge and impose only those fees, exactions, conditions, and standards of construction set forth in this Agreement, including Exhibits "C ", "D" and "F" attached hereto, and no others. If any of the conditions set forth on Exhibit "D" is satisfied by others, Developer shall be deemed to have satisfied such measures or conditions. 4.2 Conditions on Modifications. The City may impose fees, exactions and conditions in connection with its approval of Minor or Major Modifications, provided that all fees, exactions and conditions shall be in accordance with any applicable law. 4.3 Implementation of Conditions of Approval. 4.3.1 Compliance with Conditions of Approval. Developer shall be responsible to adhere to the conditions of approval set forth in Exhibit "D" in accordance with the timelines established in Exhibit "D ". 4.3.2 Survival of Conditions of Approval. If Developer proceeds with the construction of the Project, except as otherwise expressly limited in this Agreement, the obligations and requirements imposed by the conditions of approval set forth in the attached Exhibit "D" shall survive the expiration of the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and shall continue in effect for the life of the Project. Notice of the conditions of approval shall be recorded by the City separately and concurrently with this Agreement. 4.3.3 On -Site Affordable Fee Waivers and Reductions. Notwithstanding the foregoing, the Project shall be entitled to all fee waivers and fee reductions available for projects involving on -site affordable housing under the SMMC then in effect. ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS 5.1 Development Standards for the Property' Existing Regulations. The following development standards and restrictions set forth in this Section 5.1 govern the use and development of the Project and shall constitute the Existing Regulations, except as otherwise expressly required by this Agreement. 5. 1.1 Defined Terms. The following terms shall have the meanings set forth below: (a) "Existing Regulations" collectively means all of the following which are in force and effect as of the Effective Date: (i) the General Plan (including, without limitation, the LUCE); (ii) the Zoning Ordinance except as modified herein; (iii) the IZO; (iv) any and all ordinances, rules, regulations, standards, specifications and official policies of the City governing, regulating or affecting the demolition, grading, design, development, building, construction, occupancy or use of buildings and improvements or any exactions therefore, except as amended by this 22 Agreement; and (v) the development standards and procedures in Section 2 of this Agreement. (b) "Subsequent Code Changes" collectively means all of the following which are adopted or approved subsequent to the Effective Date, whether such adoption or approval is by the City Council, any department, division, office, board, commission or other agency of the City, by the people of the City through charter amendment, referendum, initiative or other ballot measure, or by any other method or procedure: (i) any amendments, revisions, additions or deletions to the Existing Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications and official policies of the City governing or affecting the grading, design, development, construction, occupancy or use of buildings or improvements or any exactions therefor. "Subsequent Code Changes" includes, without limitation, any amendments, revisions or additions to the Existing Regulations imposing or requiring the payment of any fee, special assessment or tax. 5.1.2 Existing Regulations Govern the Project. Except as provided in Section 5.2, development of the Building and improvements that will comprise the Project, including without limitation, the development standards for the grading, design, development, construction, occupancy or use of such Building and improvements, and any exactions therefor, shall be governed by the Existing Regulations. The City agrees that this Agreement is consistent with the General Plan, including the LUCE, as more fully described in the Recitals. Any provisions of the Existing 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 Article 6 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; (H) 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 23 check fee and public works inspection fee for public improvements constructed and installed by Developer and (iv) fees for monitoring compliance with any development approvals; 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 High Density Housing District (as defined in the City's General Plan as of the Effective Date). (c) Procedural regulations relating to hearing bodies, petitions, applications, notices, documentation of findings, records, manner in which hearings are conducted, reports, recommendations, initiation of appeals, and any other matters of procedure; provided such regulations are uniformly imposed by the City on all matters, do not result in any unreasonable decision - making delays and do not affect the substantive findings by the City in approving this Agreement or as otherwise established in this Agreement. (d) Regulations governing construction standards and specifications which are of general application that establish standards for the construction and installation of structures and associated improvements, including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code; provided that such construction standards and specifications are applied on a City -wide basis and do not otherwise limit or impair the Project approvals granted in this Agreement unless adopted to meet health and safety concerns. (e) Any City regulations to which Developer has consented in writing. (f) Collection of such fees or exactions as are imposed and set by governmental entities not controlled by City but which are required to be collected by City. (g) Regulations which do not impair the rights and approvals granted to Developer under this Agreement. For the purposes of this Section 5.2.1(a), regulations which impair Developer's rights or approvals include, but are not limited to, regulations which (i) materially increase the cost of the Project (except as provided in Section 5.2.1(a), (b), and (d) above) or (ii) which would materially delay development of the Project, or that would cause a material change in the uses of the Project as provided in this Agreement. 24 5.2.2 New Rules and Regulations. This Agreement shall not be construed to prevent the City from applying new rules, regulations and policies in those circumstances specified in Government Code Section 65866. 5.2.3 State or Federal Laws. In the event that state or federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations; provided that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City and Developer shall use reasonable efforts to identify, assemble and copy three identical sets of the Existing Regulations, to be retained by the City and Developer, so that if it becomes necessary in the future to refer to any of the Existing Regulations, there will be a common set of the Existing Regulations available to all Parties. 5.4 Conflicting Enactments. Except as provided in Section 5.2 above, any Subsequent Code Change which would conflict in any way with or be more restrictive than the Existing Regulations shall not be applied by the City to any part of the Property. Developer may, in its sole discretion, give the City written notice of its election to have any Subsequent Code Change applied to such portion of the Property as it may have an interest in, in which case such Subsequent Code Change shall be deemed to be an Existing Regulation insofar as that portion of the Property is concerned. If there is any conflict or inconsistency between the terms and conditions of this Agreement and the Existing Regulations, the terms and conditions of this Agreement shall control. 5.5 Timing of Development. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in that case to provide for the timing of development resulted in a later- adopted initiative restricting the timing of development to prevail over the parties' agreement. It is the intent of Developer and the City to cure that deficiency by expressly acknowledging and providing that any Subsequent Code Change that purports to limit over time the rate or timing of development or to alter the sequencing of development phases (whether adopted or imposed by the City Council or through the initiative or referendum process) shall not apply to the Property or the Project and shall not prevail over this Agreement. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed by the City on the amount of total square feet or the number of buildings, structures or residential units that can be built each year on the Property, except as expressly provided in this Agreement. ARTICLE 6 ARCHITECTURAL REVIEW BOARD 25 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 number of Rental Housing units, or reduction in Floor Area greater than two percent (2 %) either by floor or in aggregate from the building. Decisions of the ARB are appealable to the Planning Commission in accordance with the Existing Regulations. 6.2 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. Developer may concurrently process plan check (SMMC § 8.08.060) with ARB design review (SMMC ch. 9.32); provided, however, that Developer 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) demolition, excavation and grading permits, (d) encroachment permits, and (e) temporary and final certificates of occupancy. 7.1.2 "Technical Permit Applications" means any applications required to be filed by Developer for any Technical City Permits. 7.2 Diligent Action by City. 7.2.1 Upon satisfaction of the conditions set forth in Section 7.3, the City shall accept the Technical Permit Applications filed by Developer with the City and shall diligently proceed to process such Technical Permit Applications to completion. 7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the City shall diligently issue the Technical City Permits which are the subject of the Technical Permit Applications. 7.2.3 In accordance with SMMC Section 9.56.0500), the Project shall receive priority building department plan check processing by which housing developments shall have plan check review in advance of other pending developments to the extent authorized by law. 7.3 Conditions for Diligent Action by the City. 7.3.1 Acceptance and Processing of Technical Permit Applications. The obligation of the City to accept and diligently process the Technical Permit Applications which are filed by Developer, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions: (a) Developer shall have completed and filed all Technical Permit Applications which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided_ that such procedures and policies are uniformly in force and effect throughout the City; (b) Developer shall have paid all processing and permit fees established by the City in connection with the filing and processing of any Technical Permit Application which are in effect on the date when the Technical Permit Application is filed; provided that such fees are uniformly in force and effect throughout the City; and (c) If required for the particular Technical Permit Application, Developer shall have obtained the approval of the ARB referred to in Article 6 above. 7.3.2 Issuance of a Technical City Permit. The obligation of the City to issue a Technical City Permit which is the subject of a Technical Permit Application filed by Developer is subject to the satisfaction of the following conditions (and only such conditions and no others): (a) Developer shall have complied with all of its obligations under this Agreement which are required to be performed prior to or concurrent with the issuance of the Technical City Permits for the proposed Building; (b) Developer shall have received any permits or approvals from other governmental agencies which are required by law to be issued prior to or concurrent with the issuance of the Technical City Permits for the proposed Building; (c) The proposed Building conforms to the development standards for such Building established in this Agreement. In the event that a proposed Building is not in conformance with the development standards, Developer shall have the right to seek any relief from such standards under the procedures then available in the City; and 27 (d) The proposed Building conforms to the Administrative and Technical Construction Codes of the City (Article VIII, Chapter 1 of the Santa Monica Municipal Code) (the "Technical Codes ") in effect on the date that the Technical Permit Application is filed. 7.3.3 New Technical Requirements. From time to time, the City's Technical Codes are amended to meet new technical requirements related to techniques of building and construction. If the sole means of achieving compliance for the Project with such revisions to the Technical Codes made after the Effective Date ( "New Technical Requirements ") would require an increase from the allowable Building Height established in this Agreement for the Project, then the Planning Director is hereby authorized to grant Developer limited relief from the allowable Building Height without amending this Agreement if the requested relief is in compliance with the City's General Plan. Any such approval shall be granted only after the Planning Director's receipt of a written request for such relief from Developer. Developer is required to supply the Planning Director with written documentation of the fact that compliance with the New Technical Requirements cannot be achieved by some other method. Any such relief shall only be granted to the extent necessary in the Planning Director's determination for Developer to comply with the New Technical Requirements. 7.4 Duration of Technical City Permits. The duration of Technical City Permits issued by the City, and any extensions of the time period during which such Technical City Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. Subject to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall not preclude or impair Developer from subsequently filing another Technical Permit Application for the same matter during the Term of this Agreement, which shall be processed by the City in accordance with the provisions of this Article 7. Notwithstanding anything to the contrary in this Agreement, if Developer obtains building permits for the Project and, at any time after the Outside Construction Start Date, such building permits expire or are revoked pursuant to the applicable terms of the SMMC (as the same may be amended from time to time), then Developer may not subsequently apply for new building permits for the Project without first obtaining the prior written consent of the Planning Director, which may be granted or withheld in the Planning Director's sole discretion. 7.5 Accessibility of Deed - Restricted Affordable Units. The four deed - restricted affordable units in the Project shall be fully accessible in accordance with 2013 California Building Code Chapter 1113, or any successor thereto. Developer shall inform local disability advocacy organizations of the availability of these units and the mechanism for applying to be placed on the City's Affordable Housing waiting list administered by the City's Housing Division. W 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 fi•om time to time only with the written consent of Developer and the City or their successors and assigns in accordance with the provisions of the SMMC and Section 65868 of the California Government Code. ARTICLE 9 TERM 9.1 Effective Date. This Agreement shall be dated, and the obligations of the Parties hereunder shall be effective as of the date upon which the ordinance approving this Agreement becomes effective (the "Effective Date "). The Parties shall execute this Agreement within ten (10) working days of the Effective Date. 9.2 Term. 9.2.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue for ten (10) years thereafter (the "Term "), unless the Term is otherwise terminated pursuant to Section 11.4, after the satisfaction of all applicable public hearing and related procedural requirements or pursuant to Section 2.3.4 or Section 3.3. 9.2.2 Termination Certificate. Upon termination of this Agreement, the Parties hereto shall execute an appropriate certificate of termination in recordable form (a "Termination Certificate "), which shall be recorded in the official records of Los Angeles County. 9.2.3 Effect of Termination. Except as expressly provided herein (e.g., Section 4.4.2), 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 31 si (each, a "Periodic Review "), in accordance with this Article 10 in order to determine whether or not Developer is out -of- compliance with any specific term or provision of this Agreement. 10.2 Evidence of Good Faith Compliance. On or before October I" of each year, Developer shall deliver to the City a written report demonstrating that Developer 29 has been in good faith compliance with this Agreement during the twelve (12) month period prior to the anniversary of the Effective Date. The written report shall be provided in the form established by the City. For purposes of this Agreement, the phrase "good faith compliance" shall mean the following: (a) compliance by Developer with the requirements of the Existing Regulations, except as otherwise modified by this Agreement; and (b) compliance by Developer with the terms and conditions of this Agreement, subject to the existence of any specified Excusable Delays (as defined in Section 15.8 below) which prevented or delayed the timely performance by Developer of any of its obligations under this Agreement. 10.3 Information to be Provided to Developer. Prior to any public hearing concerning the Periodic Review of this Agreement, the City shall deliver to Developer a copy of all staff reports prepared in connection with a Periodic Review, written comments from the public and, to the extent practical, all related exhibits concerning such Periodic Review. If the City delivers to Developer a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver to Developer a copy of all staff reports prepared in connection with such Notice of Breach, all written comments from the public and all related exhibits concerning such Notice of Breach. 10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City reasonably concludes on the basis of substantial evidence that Developer has not demonstrated that it is in good faith compliance with this Agreement, then the City may issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1 below, and Developer shall have the opportunity to cure the default identified in the Notice of Breach during the cure periods and in the manner provided by Section 11. 1.2 and Section 11.1.3, as applicable. 10.5 Failure of Periodic Review. The City's failure to review at least annually compliance by Developer with the terms and conditions of this Agreement shall not constitute or be asserted by any Party as a breach by any other Party of this Agreement. 10.6 Termination of Development Agreement. If Developer fails to timely cure any material item(s) of non - compliance set forth in a Notice of Default, then the City shall have the right but not the obligation to initiate proceedings for the purpose of terminating this Agreement pursuant to Section 11.4 below. 10.7 City Cost Recovery. Following completion of each Periodic Review, Developer shall reimburse the City for its actual and reasonable costs incurred in connection with such review after provision of an invoice by the City. 30 ARTICLE 11 DEFAULT 11.1 Notice and Cure. 11.1.1 Breach. If either Party fails to substantially to perform any term, covenant or condition of this Agreement which is required on its part to be performed (a "Breach "), the non - defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non - defaulting Party has first sent a written notice of Breach (a "Notice of Breach "), in the manner required by Section 15. 1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice of Breach to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance with Section 12. 11.1.2 Monetary Breach. In the case of a monetary Breach by Developer, Developer shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by Developer of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable evidence of the Excusable Delay. 11.1.3 Non - Monetary Breach. In the case of anon-monetary Breach by either Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for a non - monetary Breach shall be extended as is reasonably necessary to remedy such Breach; provided that the alleged defaulting Party commences such cure promptly after receiving the Notice of Breach and continuously and diligently pursues such remedy at all times until such Breach is cured. 11. 1.4 Excusable Delay. Notwithstanding anything to the contrary contained in this Agreement, the City's exercise of any of its rights or remedies under this Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8 below. 11.2 Remedies for Monetary Default. If there is a Breach by Developer in the performance of any of its monetary obligations under this Agreement which remains uncured (a) thirty (30) business days after receipt by Developer of a Notice of Breach from the City and (b) after expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in accordance with Section 12.1), then an "Event of Monetary Default" shall have occurred by Developer, and the City shall have available any right or remedy provided in 31 this Agreement, at law or in equity. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy. 11.3 Remedies for Non - Monetary Default. 11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from the other Party regarding a non - monetary Breach, and the non - monetary Breach remains uncured: (a) after expiration of all applicable notice and cure periods, and (b) in the case of a Breach by Developer, after the expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in accordance with Section 12. 1), then an "Event of Non - Monetary Default" shall have occurred and the non - defaulting Party shall have available any right or remedy provided in this Agreement, or provided at law or in equity except as prohibited by this Agreement. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy. 11.3.2 Specific Performance. The City and Developer acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance is an appropriate remedy for the enforcement of this Agreement. Therefore, unless otherwise expressly provided herein, the remedy of specific performance shall be available to the non - defaulting party if the other Party causes an Event of Non - Monetary Default to occur. 11.3.3 Writ of Mandate. The City and Developer hereby stipulate that Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy any Event of Non - Monetary Default by the City of its obligations and duties under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary standard or the standard of review applicable to any action of, or approval by, the City pursuant to this Agreement or with respect to the Project. 11.3.4 No Damages Relief Against Citv. It is acknowledged by Developer that the City would not have entered into this Agreement if the City were to be liable in damages under or with respect to this Agreement or the application thereof. Consequently, and except for the payment of attorneys' fees and court costs, the City shall not be liable in damages to Developer and Developer covenants on behalf of itself and its successors in interest not to sue for or claim any damages: (a) for any default under this Agreement; (b) for the regulatory taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; or (c) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 32 The City and Developer agree that the provisions of this Section 11.3.4 do not apply for damages which: (a) do not arise under this Agreement; (b) are not with respect to any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or (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 Chapters 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these remedies are applied. 11.3.6 No Damages Against Developer. It is acknowledged by the City that Developer would not have entered into this Agreement if Developer were to be liable in damages in connection with any non - monetary default hereunder. Consequently, and except for the payment of attorneys' fees and court costs, Developer shall not be liable in damages to the City for any nonmonetary default and the City covenants on behalf of itself not to sue for or claim any damages: (a) for any non - monetary default hereunder or arising out of or connected with any dispute, controversy or issue regarding; or (b) the application or interpretation or effect of the provisions of this Agreement. The City and Developer agree that the provisions of this Section 11.3.6 do not apply for damages which: (a) are for a monetary default; (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 Developer may have at law or equity after the occurrence of any Event of Non-Monetary Default. 33 11.4 Modification or Termination of Agreement by City_. 11.4.1 Default by Developer. If Developer causes either an Event of Monetary Default or an Event of Non - Monetary Default, then the City may commence proceedings to modify or terminate this Agreement pursuant to this Section 11.4. 11.4.2 Procedure for Modification or Termination. The procedures for modification or termination of this Agreement by the City for the grounds set forth in Section 11.4.1 are as follows: (a) The City shall provide a written notice to Developer (and to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance of Section 12.1) of its intention to modify or terminate this Agreement unless Developer (or the Secured Lender) cures or corrects the acts or omissions that constitute the basis of such determinations by the City (a "Hearing Notice'). The Hearing Notice shall be delivered by the City to Developer in accordance with Section 15.1 and shall contain the time and place of a public hearing to be held by the City Council on the determination of the City to proceed with modification or termination of this Agreement. The public hearing shall not be held earlier than: (i) thirty -one (3 1) days after delivery of the Hearing Notice to Developer or (ii) if a Secured Lender has delivered a Request for Notice in accordance with Section 12. 1, the day following the expiration of the "Secured Lender Cure Period" (as defined in Section 12.1). (b) If, following the conclusion of the public hearing, the City Council: (i) determines that an Event of Non - Monetary Default has occurred or the Developer has not been in good faith compliance with this Agreement pursuant to Section 10. 1, as applicable and (ii) further determines that Developer (or the Secured Lender, if applicable) has not cured (within the applicable cure periods) the acts or omissions that constitute the basis of the determination under clause (i) above or if those acts or omissions could not be reasonably remedied prior to the public hearing that Developer (or the Secured Lender) has not in good faith commenced to cure or correct such acts or omissions prior to the public hearing or is not diligently and continuously proceeding therewith to completion, then upon making such conclusions, the City Council may modify or terminate this Agreement. The City cannot unilaterally modify the provisions of this Agreement pursuant to this Section 11.4. Any such modification requires the written consent of Developer. If the City Council does not terminate this Agreement, but proposes a modification to this Agreement as a result of the public hearing and Developer does not (within five (5) days of receipt) execute and deliver to the City the form of modification of this Agreement submitted to Developer by the City, then the City Council may elect to terminate this Agreement at any time after the sixth day after Developer's receipt of such proposed modification. 11.5 Cessation of Rights and Obligations. If this Agreement is terminated by the City pursuant to and in accordance with Section 11.4, the rights, duties and obligations of the Parties under this Agreement shall cease as of the date of such termination, except only for those rights and obligations that expressly survive the 34 termination of this Agreement. In such event, any and all benefits, including money received by the City prior to the date of termination, shall be retained by the City. 11.6 Completion of Improvements. Notwithstanding the provisions of Sections 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Developer has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit issued by the City, then Developer shall have acquired a vested right to complete construction of the Building in accordance with the terms of the building permit and occupy or use each such Building upon completion for the uses permitted for that Building as provided in this Agreement. Any Building completed or occupied pursuant to this Section 11.6 shall be considered legal non - conforming subject to all City ordinances standards and policies as they then exist governing legal non- conforming buildings and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district. ARTICLE 12 MORTGAGEES 12.1 Encumbrances on the Property. This Agreement shall not prevent or limit Developer (in its sole discretion), from encumbering the Property (in any manner) or any portion thereof or any improvement thereon by any mortgage, deed of trust, assignment of rents or other security device securing financing with respect to the Property (a "Mortgaee "). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a "Secured Lender') on the Property shall be entitled to the rights and privileges set forth in this Article 12. Any Secured Lender may require from the City certain interpretations of this Agreement. The City shall from time to time, upon request made by Developer, meet with Developer and representatives of each of its Secured Lenders to negotiate in good faith any Secured Lender's request for interpretation of any part of this Agreement. The City will not unreasonably withhold, condition or delay the delivery to a Secured Lender of the City's written response to any such requested interpretation. 12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section 12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any Event of Monetary Default nor any Event of Non- Monetary Default shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. 12.1.2 Priority of Agreement. This Agreement shall be superior and senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Secured Lender or its successor in interest (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise) shall be subject to all of the terms and conditions of this Agreement. 12.1.3 Right of Secured Lender to Cure Default. 35 (a) A Secured Lender may give notice to the City, specifying the name and address of such Secured Lender and attaching thereto a true and complete copy of the Mortgage held by such Secured Lender, specifying the portion of the Property that is encumbered by the Secured Lender's lien (a "Request for Notice "). If the Request for Notice has been given, at the same time the City sends to Developer any Notice of Breach or Hearing Notice under this Agreement, then if such Notice of Breach or Hearing Notice affects the portion of the Property encumbered by the Secured Lender's lien, the City shall send to such Secured Lender a copy of each such Notice of Breach and each such Hearing Notice from the City to Developer. The copy of the Notice of Breach or the Hearing Notice sent to the Secured Lender pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the City. The period within which a Secured Lender may cure a particular Event of Monetary Default or Event of Non - Monetary Default shall not commence until the City has sent to the Secured Lender such copy of the applicable Notice of Breach or Hearing Notice. (b) After a Secured Lender has received a copy of such Notice of Default or Hearing Notice, such Secured Lender shall thereafter have a period of time (in addition to any notice and/or cure period afforded to Developer under this Agreement) equal to: (a) ten (10) business days in the case of any Event of Monetary Default and (b) thirty (30) days in the case of any Event of Non - Monetary Default, during which period the Secured Lender may provide a remedy or cure of the applicable Event of Monetary Default or may provide a remedy or cure of the applicable Event of Non- Monetary Default; provided that if the cure of the Event of Non - Monetary Default cannot reasonably be completed within thirty days, Secured Lender may, within such 30 -day period, commence to cure the same and thereafter diligently prosecute such cure to completion (a "Secured Lender's Cure Period "). If Developer has caused an Event of Monetary Default or an Event of Non - Monetary Default, then each Secured Lender shall have the right to remedy such Event of Monetary Default or an Event of Non - Monetary Default, as applicable, or to cause the same to be remedied prior to the conclusion of the Secured Lender's Cure Period and otherwise as herein provided. The City shall accept performance by any Secured Lender of any covenant, condition, or agreement on Developer's part to be performed hereunder with the same force and effect as though performed by Developer. (c) The period of time given to the Secured Lender to cure any Event of Monetary Default or an Event of Non - Monetary Default by Developer which reasonably requires that said Secured Lender be in possession of the Property to do so, shall be deemed extended to include the period of time reasonably required by said Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver or otherwise) promptly and with due diligence; provided that during such period all other obligations of Developer under this Agreement, including, without limitation, payment of all amounts due, are being duly and promptly performed. 12.1.4 Secured Lender Not Obligated Under this Agreement. REP (a) No Secured Lender shall have any obligation or duty under this Agreement to perform the obligations of Developer's or the affirmative covenants of Developer's hereunder or to guarantee such performance unless and until such time as a Secured Lender takes possession or becomes the owner of the estate covered by its Mortgage. If the Secured Lender takes possession or becomes the owner of any portion of the Property, then from and after that date, the Secured Lender shall be obligated to comply with all provisions of this Agreement; provided that the Secured Lender shall not be responsible to the City for any unpaid monetary obligations of Developer that accrued prior to the date the Secured Lender became the fee owner of the Property. (b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City's authority to terminate this Agreement, as against any Secured Lender as well as against Developer if any curable Event of Monetary Default or an Event of Non - Monetary Default is not completely cured within the Secured Lender's Cure Period. ARTICLE 13 TRANSFERS AND ASSIGNMENTS 13.1 Transfers and Assignments. 13. 1.1 Not Severable from Ownership Interest in Property. This Agreement shall not be severable from Developer's interest in the Property and any transfer of the Property or any portion thereof shall automatically operate to transfer the benefits and burdens of this Agreement with respect to the transferred Property or transferred portions, as applicable. 13.1.2 Transfer Rights. Developer may freely sell, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Property, without the consent of the City. Developer shall, however, give written notice to the City, in accordance with Section 15. 1, of any transfer of the Property, disclosing in such notice (a) the identity of the transferee of the Property (the "Property Transferee ") and (b) the address of the Property Transferee as applicable. 13.2 Release Upon Transfer. Upon the sale, transfer, exchange or hypothecation of the rights and interests of Developer to the Property, Developer shall be released from its obligations under this Agreement to the extent of such sale, transfer or exchange with respect to the Property if : (a) Developer has provided written notice of such transfer to City; and (b) the Property Transferee executes and delivers to City a written agreement in which the Property Transferee expressly and unconditionally assumes all of the obligations of Developer under this Agreement with respect to the Property in the form of Exhibit "G" attached hereto (the "Assumption Agreement "). Upon such transfer of the Property and the express assumption of Developer's obligations under this Agreement by the transferee, the City agrees to look solely to the transferee for compliance with the provisions of this Agreement. Any such transferee shall be entitled to the benefits of this Agreement as "Developer" hereunder and shall be subject to the 37 obligations of this Agreement. Failure to deliver a written Assumption Agreement hereunder shall not affect the transfer of the benefits and burdens as provided in Section 13. 1, provided that the transferor shall not be released from its obligations hereunder unless and until the executed Assumption Agreement is delivered to the City. ARTICLE 14 INDEMNITY TO CITY 14.1 Indemnity. Developer agrees to and shall defend, indemnify and hold harmless the City, its City Council, boards and commissions, officers, agents, employees, volunteers and other representatives (collectively referred to as "City Indemnified Parties ") from and against any and all loss, liability, damages, cost, expense, claims, demands, suits, attorney's fees and judgments (collectively referred to as "Damages "), including but not limited to claims for damage for personal injury (including death) and claims for property damage arising directly or indirectly from the following: (1) for any act or omission of Developer or those of its officers, board members, agents, employees, volunteers, contractors, subcontractors or other persons acting on its behalf (collectively referred to as the "Developer Parties ") which occurs during the Tenn and relates to this Agreement; (2) for any act or omission related to the operations of Developer Parties, including but not limited to the maintenance and operation of areas on the Property accessible to the public. Developer's obligation to defend, indemnify and hold harmless applies to all actions and omissions of Developer Parties as described above caused or alleged to have been caused in connection with the Project or Agreement, except to the extent any Damages are caused by the active negligence or willful misconduct of any City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to have been suffered by the City Indemnified Parties regardless of whether or not the City prepared, supplied or approved plans or specifications or both for the Project. 14.2 City's Right to Defense. The City shall have the right to approve legal counsel retained by Developer to defend any claim, action or proceeding which Developer is obligated to defend pursuant to Section 14. 1, which approval shall not be unreasonably withheld, conditioned or delayed. If any conflict of interest results during the mutual representation of the City and Developer in defense of any such action, or if the City is reasonably dissatisfied with legal counsel retained by Developer, the City shall have the right (a) at Developer's costs and expense, to have the City Attorney undertake and continue the City's defense, or (b) with Developer's approval, which shall not be reasonably withheld or delayed, to select separate outside legal counsel to undertake and continue the City's defense. ARTICLE 15 GENERAL PROVISIONS 15.1 Notices. Formal notices, demands and communications between the Parties shall be deemed sufficiently given if delivered to the principal offices of the City or Developer, as applicable, by (i) personal service, or (ii) express mail, Federal Express, IN or other similar overnight mail or courier service, regularly providing proof of delivery, or (iii) registered or certified mail, postage prepaid, return receipt requested, or (iv) facsimile (provided that any notice delivered by facsimile is followed by a separate notice sent within twenty -four (24) hours after the transmission by facsimile delivered in one of the other manners specified above). Such notice shall be addressed as follows: To City: City of Santa Monica 1685 Main Street, Room 204 Santa Monica, California 90401 Attention: City Manager With a Copy to: City of Santa Monica 1685 Main Street, Room 212 Santa Monica, California 90401 Attn: Planning and Community Development Director To Developer: Pico Eleven, LLC 1225 Coast Village Road Ste. C Santa Barbara, CA 93108 With a Copy to: Harding Larmore Kutcher & Kozal, LLP 1250 Sixth Street, Suite 200 Santa Monica, California 90401 Attention: Kevin V. Kozal, Esq. 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. 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 39 interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project. 15.4 Agreement Not for Benefit of Third Parties. This Agreement is made and entered into for the sole protection and benefit of Developer and the City and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 15.5 No Partnership or Joint Venture. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the City and Developer or to render either Party liable in any manner for the debts or obligations of the other. 15.6 Estoppel Certificates. Either Party may, at any time, and from time to time, deliver written notice to the other Party requesting such Party to certify in writing (each, an "Estoppel Certificate "): (a) that this Agreement is in full force and effect, (b) that this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, (c) whether or not, to the knowledge of the responding Party, the requesting Party is in Breach or claimed Breach in the performance of its obligations under this Agreement, and, if so, describing the nature and amount of any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the responding Party, any event has occurred or failed to occur which, with the passage of time or the giving of notice, or both, would constitute an Event of Monetary Default or an Event of Non - Monetary Default and, if so, specifying each such event. A Party receiving a request for an Estoppel Certificate shall execute and return such Certificate within thirty (30) days following the receipt of the request therefor. If the party receiving the request hereunder does not execute and return the certificate in such 30 -day period and if circumstances are such that the Party requesting the notice requires such notice as a matter of reasonable business necessity, the Party requesting the notice may seek a second request which conspicuously states "FAILURE TO EXECUTE THE REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE DEVELOPMENT AGREEMENT" and which sets forth the business necessity for a timely response to the estoppel request. If the Party receiving the second request fails to execute the Estoppel Certificate within such 15 -day period, it shall be conclusively deemed that the Agreement is in full force and effect and has not been amended or modified orally or in writing, and that there are no uncured defaults under this Agreement or any events which, with passage of time of giving of notice, of both, would constitute a default under the Agreement. The City Manager shall have the right to execute any Estoppel Certificate requested by Developer under this Agreement. The City 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. .x 15.8 Excusable Delays. 15.8.1 In addition to any specific provisions of this Agreement, non- performance by Developer of its obligations under this Agreement shall be excused when it has been prevented or delayed in such performance by reason of any act, event or condition beyond the reasonable control of Developer (collectively, "Excusable Delays ") for any of the following reasons: (a) War, insurrection, walk -outs, riots, acts of terrorism, floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused performances; (b) Governmental restrictions or moratoria imposed by the City or by other governmental entities or the enactment of conflicting State or Federal laws or regulations; (c) The imposition of restrictions or moratoria by judicial decisions or by litigation, contesting the validity, or seeking the enforcement or clarification of, this Agreement whether instituted by Developer, the City or any other person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or any permit or approval Developer deems necessary or desirable for the implementation of the Project; (d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement; (e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes; and (f) Failure of the City to timely perform its obligations hereunder, including its obligations under Section 7.2 above. 15.8.2 Under no circumstances shall the inability of Developer to secure financing be an Excusable Delay to the obligations of Developer except to the extent the inability to secure financing is directly associated with war, insurrection, walk -outs, riots, acts of terrorism, floods, earthquakes, fires, casualties, acts of God, or similar grounds beyond the control of Developer. 15.8.3 In order for an extension of time to be granted for any Excusable Delay, Developer must deliver to the City written notice of the commencement of the Excusable Delay within sixty (60) days after the date on which Developer becomes aware of the existence of the Excusable Delay. The extension of time for an Excusable Delay shall be for the actual period of the delay. 15.8.4 Nothing contained in this Section 15.8 is intended to modify the terms of either Section 5.1.2 or Section 5.5 of this Agreement. 41 15.9 Governing Law. This Agreement shall be governed exclusively by the provisions hereof and by the laws of the State of California. 15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any court action or other proceeding commenced that includes any challenge to the validity, enforceability or any term or provision of this Agreement, then Developer shall indemnify, hold harmless, pay all costs actually incurred, and provide defense in said action or proceeding, with counsel reasonably satisfactory to both the City and Developer. The City shall cooperate with Developer in any such defense as Developer may reasonably request. 15.11 Attorneys' Fees. If any Party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this Agreement or for specific performance for the Breach of this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. Such attorneys' fees shall be paid whether or not such action is prosecuted to judgment. In any case where this Agreement provides that the City or Developer is entitled to recover attorneys' fees from the other, the Party so entitled to recover shall be entitled to an amount equal to the fair market value of services provided by attorneys employed by it as well as any attorneys' fees actually paid by it to third Parties. The fair market value of the legal services for public attorneys shall be determined by utilizing the prevailing billing rates of comparable private attorneys. 15.12 Recordation. The Parties shall cause this Agreement to be recorded against title to the Property in the Official Records of the County of Los Angeles. The cost, if any, of recording this Agreement shall be borne by Developer. 15.13 No Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and referring expressly to this Section 15.13. No delay or omission by either Party in exercising any right or power accruing upon non - compliance or failure to perform by the other Party under any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof, except as expressly provided herein. No waiver by either Party of any of the covenants or conditions to be performed by the other Party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof of this Agreement. 15.14 Construction of this Agreement. The Parties agree that each Party and its legal counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. 15.15 Other Governmental Approvals. Developer may apply for such other permits and approvals as may be required for development of the Project in accordance 42 with this Agreement from other governmental or quasi - governmental agencies having jurisdiction over the Property. The City shall reasonably cooperate with Developer in its endeavors to obtain such permits and approvals. 15.15.1 Further Assurances; Covenant to Sign Documents. Each Party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings, which may be necessary or proper to achieve the purposes and objectives of this Agreement. 15.15.2 Processing. Upon satisfactory completion by Developer of all required preliminary actions and payments of appropriate processing fees, if any, the City shall, subject to all legal requirements, promptly initiate, diligently process, and complete at the earliest possible time all required steps, and expeditiously act upon any approvals and permits necessary for the development by Developer of the Project in accordance with this Agreement, including, but not limited to, the following: (a) the processing of applications for and issuing of all Discretionary Approvals requiring the exercise of judgment and deliberation by City; (b) the holding of any required public hearings; and (c) the processing of applications for and issuing of all City Technical Permits requiring the determination of conformance with the Existing Regulations. 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 Developer relating to this Agreement or to other development issues affecting the Property, the City shall not delay or stop the development, processing or construction of the Property, or issuance of the City Technical Permits, unless the third party obtains a court order preventing the activity. The City shall not stipulate to or fail to oppose the issuance of any such order. Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8.1(c), after service on the City or Developer of the initial petition or complaint challenging this Agreement or the Project, the Developer may apply to the Planning Director for a tolling of the applicable deadlines for Developer to otherwise comply with this Agreement. Within 40 days after receiving such an application, the Planning Director shall either toll the time period for up to five years during the pendency of the litigation or deny the requested tolling. 15.15.5 State, Federal or Case Law. Where any state, federal or case law allows the City to exercise any discretion or take any act with respect to that law, the City 43 shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. 15.16 Venue. Any legal action or proceeding among the Parties arising out of this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California. 15.17 Exhibits. The following exhibits which are part of this Agreement are attached hereto and each of which is incorporated herein by this reference as though set forth in full: Exhibit "A ": Legal Description of Property Exhibit "B ": Project Plans Exhibit "C ": Permitted Fees and Exactions Exhibit "D" Conditions of Approval Exhibit "E ": SMMC Article 9 (Planning and Zoning) Exhibit "F ": Local Hiring Exhibit "G ": Construction Mitigation Obligations Exhibit "H ": Reserved Exhibit "F': Assignment and Assumption Agreement Except as to the Project Plans (attached hereto as Exhibit B) which shall be treated in accordance with Section 2.1 above, the text of this Agreement shall prevail in the event that any inconsistencies exist between the Exhibits and the text of this Agreement. 15.18 Counterpart Signatures. The Parties may execute this Agreement on separate signature pages which, when attached hereto, shall constitute one complete Agreement. ,. 15.19 Certificate of Performance. Upon the completion of the Project, or any phase thereof, or upon performance of this Agreement or its earlier revocation and termination, the City shall provide Developer, upon Developer's request, with a statement ( "Certificate of Performance ") evidencing said completion, termination or revocation and the release of Developer from further obligations hereunder, except for any further obligations which survive such completion, termination or revocation. The Certificate of Performance shall be signed by the appropriate agents of Developer and the City and shall be recorded against title to the Property in the official records of Los Angeles County, California. Such Certificate of Performance is not a notice of completion as referred to in California Civil Code Section 3093. 15.20 Interests of Developer. Developer represents to the City that, as of the Effective Date, it is the owner of the entire Property subject to encumbrances, easements, covenants, conditions, restrictions, and other matters of record. 15.21 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and Developer. During the Term of this Agreement, clarifications to this Agreement and the Existing Regulations may be appropriate with respect to the details of performance of the City and Developer. If and when, from time to time, during the term of this Agreement, the City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by the City and Developer, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by the City and Developer. Operating memoranda are not intended to and cannot constitute an amendment to this Agreement but mere ministerial clarifications, therefore public notices and hearings shall not be required for any operating memorandum. The City Attorney shall be authorized, upon consultation with, and approval of, Developer, to determine whether a requested clarification may be effectuated pursuant to the execution and delivery of an operating memorandum or whether the requested clarification is of such character to constitute an amendment of this Agreement which requires compliance with the provisions of Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council. 15.22 Acknowledgments, Agreements and Assurance on the Part of Developer. 15.22.1 Developer's Faithful Performance, The Parties acknowledge and agree that Developer's faithful performance in developing the Project on the Property and in constructing and installing certain public improvements pursuant to this Agreement and complying with the Existing Regulations will fulfill substantial public needs. The City acknowledges and agrees that there is good and valuable consideration to the City resulting from Developer's assurances and faithful performance thereof and that same is in balance with the benefits conferred by the City on the Project. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable. Developer acknowledges that the consideration is reasonably related to the 45 type and extent of the impacts of the Project on the community and the Property, and further acknowledges that the consideration is necessary to mitigate the direct and indirect impacts caused by Developer on the Property. l 5.22.2 Obligations to be Non - Recourse. As a material element of this Agreement, and in partial consideration for Developer's execution of this Agreement, the Parties each understand and agree that the City's remedies for breach of the obligations of Developer under this Agreement shall be limited as described in Sections 11.2 through 11.4 above. 15.23 Waiver of Protest. Developer acknowledges and agrees that by executing this Agreement, Developer 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 (hereinafter "exactions "), including the City's right to request and receive the exaction pursuant to this Agreement, the total exaction amount if specified by the Agreement, and the formula for subsequently calculating exactions if the formula is established by the Existing Regulations. Notwithstanding the above, if the amount of any exaction is not expressly set forth in this Agreement, Developer reserves the right to protest the subsequent calculation of this amount. 15.24 Not a Public Dedication. Except for the dedications to be made by Developer pursuant to Section 2.6, nothing in this Agreement shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Developer shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and building and improvements located thereon, by any person for any purpose inimical to the development of the Project, including without limitation to prevent any person or entity from obtaining or accruing any prescriptive or other right to use the Property or the Project. 15.25 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. 15.26 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. :. ATTEST: C MARIA M. STEWART City Clerk APPROVED AS TO FORM: MARSHA JONES MOUTRIE City Attorney DEVELOPER: PICO ELEVEN, LLC a limited liability company BY: Name: Peter Bohlinger Title: Managing Member CITY: CITY OF SANTA MONICA, a municipal corporation C 47 Rod Gould City Manager EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY LOT 1 OF TRACT NO. 61782, IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1345 PAGES 94 AND 95 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN: 4284 -017 -041 A -1 EXHIBIT `B" PROJECT PLANS On file with the City of Santa Monica. ME EXHIBIT "C" PERMITTED FEES AND EXACTIONS 1. Developer shall pay the following fees and charges that are within the City's jurisdiction and at the rate in effect at the time payments are made: (a) Upon submittal for Architectural Review Board (ARB) review, Developer shall pay City fees for processing of ARB applications; (b) Upon submittal for plan check, Developer shall pay City plan check fees; (c) Prior to issuance of construction permits, Developer shall pay the following City fees and all other standard fees imposed on similar development projects: • Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping, Excavation and Shoring Permit fees (collected by Building & Safety) • Shoring Tieback fee (collected by EPWM) • Construction and Demolition (C &D) Waste Management fee (SMMC Chapter 8.108) (collected by EPWM) (collected by EPWM) • Wastewater Capital Facilities Fee (SMMC Section 7.04.460) (collected by EPWM) • Water Capital Facilities Fee & Water Meter Instillation fee (Water Meter Permit fee) (SMMC Section 7.12.090) (collected by EPWM) • Fireline Meter fee (SMMC Section 7.12.090) (collected by EPWM) • Childcare Linkage Fee (SMMC Section 9.72.040). Developer shall execute a contract to pay the fee prior to issuance of a building permit. Developer shall pay the fee prior to the issuance of a final certificate of occupancy for the Project. The affordable units are exempted entirely from this fee calculation and the price - regulated units are provided a 50% discount. • Cultural Arts Fee (SMMC Section 9.04.10.20). Developer shall execute a contract to pay the fee prior to issuance of a building permit. Developer shall pay the fee prior to the issuance of a final certificate of occupancy for the Project. (d) Upon inspection of the Project during the course of construction, City inspection fees. C -1 These fees shall be reimbursed to Developer in accordance with the City's standard practice should Developer not proceed with development of the Project. 2. Prior to issuance of permits for any construction work in the public right -of -way, or use of public property, Developer shall pay the following City fees: ® Use of Public Property Permit fees (SMMC 7.04.670) (EPWM) ® Utility Excavation Permit fee (SMMC 7.04.010) (EPWM) ® Street Permit fee (SMMC 7.04.790) (EPWM) Developer shall reimburse the City for its ongoing actual costs to monitor the project's compliance with this Development Agreement. The City shall bill Developer for staff time and any material used pursuant to the hourly fees in effect at the time monitoring is performed. Developer shall submit payment to the City within 30 days after receipt of an invoice for same from the City. C -2 EXHIBIT "D" CONDITIONS OF APPROVAL SECTION A - [RESERVED] D -1 Project Specific Conditions (e) 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 (f) In the event Developer violates or fails to comply with any conditions of approval of this permit, no further permits, licenses, approvals or certificates of occupancy shall be issued until such violation has been fully remedied. Conformance with Approved Plans (g) This approval is for those plans dated November 11, 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. (h) 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. (i) 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 (j) 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. D -2 (k) No building permit shall be issued for the project until the developer complies with the requirements of Chapter 9.72 of the Santa Monica Municipal Code, the Child Care Linkage Program. Cultural Resources (1) If any archaeological remains are uncovered during excavation or construction, work in the affected area shall be suspended and a recognized specialist shall be contacted to conduct a survey of the affected area at.project's owner's expense. A determination shall then be made by the Director of Planning to determine the significance of the survey findings and appropriate actions and requirements, if any, to address such findings. Project Operations (m) 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. (n) The project shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12 or any successor thereto). Final Design (o) Plans for final design, landscaping, screening, trash enclosures, and signage shall be subject to review and approval by the Architectural Review Board. Furthermore, the Board shall pay particular attention to the massing and compatibility of the proposed building to the surrounding neighborhood, subject to Article 6. In addition, the ARB should pay particular attention to: (i) The landscaping in the courtyard areas. Specifically, the depth of any planting areas and the height of any planters in order to provide appropriate landscaping on -site for the residents. (ii) The pedestrian orientation of the entrance on Pico Boulevard. Specifically, the Council was concerned with the sloping sidewalk grade at the entry court and building lobby. These areas are located behind a retaining wall and at a lower grade than the sloping sidewalk and the Council expressed a desire for ARB's review. (p) 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. (q) Refuse areas, storage areas and mechanical equipment shall be screened in accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas shall be of a size adequate to meet on -site need, including recycling. The Architectural D -3 Review Board in its review shall pay particular attention to the screening of such areas and equipment. Any rooftop mechanical equipment shall be minimized in height and area, and shall be located in such a way as to minimize noise and visual impacts to surrounding properties. Unless otherwise approved by the Architectural Review Board, rooftop mechanical equipment shall be located at least five feet from the edge of the roof. Except for solar hot water heaters, no residential water heaters shall be located on the roof. (r) 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. (s) 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. (t) As appropriate, the Architectural Review Board shall require the use of anti - graffiti materials on surfaces likely to attract graffiti. Construction Plan Requirements (u) 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 (v) 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. (w) Final approval of any mechanical equipment installation will require a noise test in compliance with SMMC Section 4.12.040. Equipment for the test shall be provided by the owner or contractor and the test shall be conducted by the owner or contractor. A copy of the noise test results on mechanical equipment shall be submitted to the Community Noise Officer for review to ensure that noise levels do not exceed maximum allowable levels for the applicable noise zone. (x) The property owner shall insure any graffiti on the site is promptly removed through compliance with the City's graffiti removal program. Condition Monitoring No (y) 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 (z) 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 (aa) 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/Transi2ortation ®Management/HVO.pdf (bb) 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: ham• / /www smgov net /uploadedFiles/ Departments /Transportation/Transportation Management/RampSlope.pri PUBLIC LANDSCAPE (cc) Street trees shall be maintained, relocated or provided as required in a manner consistent with the City's Urban Forest Master Plan, per the specifications of the Public Landscape Division of the Community & Cultural Services Department and the City's Tree Code (SMMC Chapter 7.40). No street trees shall be removed without the approval of the Public Landscape Division. (dd) Prior to the issuance of a building permit all street trees that are adjacent to or will be impacted by the construction access shall have tree protection zones established in accordance with the Urban Forest Master Plan. All tree protection zones shall remain in place until construction has been completed. (ee) Replace or plant new street trees in accordance with Urban Forest Master Plan and in consultation with City Arborist. 09 OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT (ff) Developer shall enroll the property in the Savings By Design incentive program where available through Southern California Edison prior to submittal of plans for Architectural Review. Developer shall execute an incentive agreement with Southern California Edison prior to the issuance of a building permit. (gg) 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 Monica Municipal Code. PUBLIC WORKS General Conditions specified in Chapter 8.108 of the Santa (hh) Developer shall be responsible for the payment of the following Public Works Department (PWD) permit fees prior to issuance of a building permit: a. Water Services b. Wastewater Capital Facility C. Water Demand Mitigation d. Fire Service Connection e. Tieback Encroachment, 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. Some of these fees shall be reimbursed to Developer in accordance with the City's standard practice should Developer not proceed with development of the Project. In order to receive a refund of the Construction and Demolition performance deposit, the owner or contractor must provide receipts of recycling 70% of all materials listed on the Waste Management Plan. (ii) 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: M. Use of Public Property Permits, Sewer Permits, Excavation Permits, Alley Closure Permits, Street Closure Permits, and Temporary Traffic Control Plans. 0j) Developer shall comply with the Construction Mitigation Obligations set forth in Exhibit "G ", attached hereto. (kk) 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. (11) 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. (mm) 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 (nn) Connections to the sewer or storm drains require a sewer permit fiom 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. (oo) 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. (pp) 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 4 R4- 2003 -0111. (qq) Prior to the issuance of the first building permit, the applicant shall submit a sewer study that shows that the City's sewer system can accommodate the entire development. Developer shall be responsible to upgrade any downstream deficiencies, to the satisfaction of the Water Resources Manager, if calculations show that the project will cause such mains to receive greater demand than and then 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. D -7 (rr) Prior to the issuance of the first building permit, the applicant shall submit a water study that shows that the City's water system can accommodate the entire development for fire flows and all potable needs. Developer shall be responsible to upgrade any water flow /pressure deficiencies, to the satisfaction of the Water Resources Manager, if calculations show that the project will cause such mains to receive greater demand than can be accommodated. Improvement plans shall be submitted to the Engineering Division. All reports and plans shall also be approved by the Water Resources Engineer. (ss) Prior to the issuance of the first building permit, the applicant shall submit a hydrology study of all drainage to and from the site to demonstrate adequacy of the existing storm drain system for the entire development. Developer shall be responsible to upgrade any system deficiencies, to the satisfaction of City Engineer, if calculations show that the project will cause such facilities to receive greater demand than can be accommodated. All reports and improvement plans shall be submitted to Engineering Division for review and approval. The study shall be performed by a Registered Civil Engineer licensed in the State of California. (tt) Absent City approval, Developer shall not directly connect to a public storm drain pipe or direct site drainage to the public alley. Residential units are required to either have an individual water meter or a master meter with sub - meters. (on) The fire services and domestic services 3- inches or greater must be above ground, on the applicant's site, readily accessible for testing. (vv) Developer will provide meters for each unit at the Project which measure the water usage (hot and cold) of each unit and shall ensure that each unit, except the four Affordable Units, will be charged separately for the water usage in each unit. The measurement of water usage may be with individual water meters or sub - meters from a master meter. The location of all water meters shall be in a common area accessible for reading and monitoring by the City at all time. The design, installation, and location shall be subject to the prior approval of the City. (ww) Developer is required to meet state cross - connection and potable water sanitation guidelines. Refer to requirements and comply with the cross - connections guidelines available at: http: // www.lapublichealth.org /eh/progs /envirp /eheross.htm. Prior to issuance of a Certificate of Occupancy, a cross - connection inspection shall be completed. (xx) 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. M: (yy) 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 (zz) To mitigate storm water and surface runoff from the project site, an Urban Runoff Mitigation Plan shall be required by the PWD pursuant to Municipal Code Chapter 7.10. Prior to submittal of landscape plans for Architectural Review Board approval, the applicant shall contact PWD to determine applicable requirements, such as: a. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution Ordinance for the construction phase and post construction activities; b. No storm water runoff, sediment and construction waste from the construction site and parking areas is prohibited from leaving the site; C. Any sediments or materials which are tracked off -site must be removed the same day they are tracked off -site; d. Excavated soil must be located on the site and soil piles should be covered and otherwise protected so that sediments are not tracked into the street or adjoining properties; C. No runoff from the construction site shall be allowed to leave the site; and f. Drainage control measures shall be required depending on the extent of grading and topography of the site. g. Development sites that result in land disturbance of one acre or more are required by the State Water Resources Control Board (SWRCB) to submit a Storm Water Pollution Prevention Plan ( SWPPP). Effective September 2, 2011, only individuals who have been certified by the Board as a "Qualified SWPPP Developer" are qualified to develop and/or revise SWPPPs. A copy of the SWPPP shall also be submitted to the PWD. (aaa) Prior to the issuance of a Certificate of Occupancy for the Project, all required offsite improvements, such as AC pavement rehabilitation, replacement of sidewalk, curbs and gutters, installation of street trees, lighting, etc. shall be designed and installed to the satisfaction of the Public Works Department and Public Landscape Division. (bbb) Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable during the grading and construction phase of the project. (ccc) 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 e determined by the PWD shall be reconstructed to the satisfaction of the PWD. Design, materials and workmanship shall match the adjacent elements including architectural concrete, pavers, tree wells, art elements, special landscaping, etc. (ddd) 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 (eee) No Excavation Permit shall be issued without a Telecommunications Investigation by the City of Santa Monica Information Systems Department. The telecommunications investigation shall provide a list of recommendations to be incorporated into the project design including, but not limited to measures associated with joint trench opportunities, location of tie -back and other underground installations, telecommunications conduit size and specifications, fiber optic cable specifications, telecommunications vault size and placement and 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 lkm terminating in a new Telecommunications Vault for future interconnection with City network. The final telecommunications design plans for the project site shall be submitted to and approved by the City of Santa Monica Information Systems Department prior to approval of project. a. Project shall comply with City of Santa Monica 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 62. Prior to the issuance of a Certificate of Occupancy for the Project, provide new street - pedestrian lighting with a multiple circuit system along the new street right - of -way and within the development site in compliance with the PWD Standards and requirements. New street - pedestrian light poles, fixtures and appurtenances to meet City standards and requirements. (fff) Prior to submittal of plan check application, make arrangements with all affected utility companies and indicate points of connection for all services on the site plan drawing. Pay for undergrounding of all overhead utilities within and along the 1 development frontages. Existing and proposed overhead utilities need to be relocated underground. (ggg) 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 (hhh) Development plans must show the refuse and recycling (RR) area dimensions to demonstrate adequate and easily accessible area. If the RR area is completely enclosed, then lighting, ventilation and floor drain connected to sewer will be required. Section 9.04.10.02.151 of the SMMC has dimensional requirements for various sizes and types of projects. Developments that place the RR area in subterranean garages must also provide a bin staging area on their property for the bins to be placed for collection. (iii) Contact Resource Recovery and Recycling RRR division to obtain dimensions of the refuse recycling enclosure. (jjj) Prior to issuance of a building permit, submit a Waste Management Plan, a map of the enclosure and staging area with dimensions and a recycling plan to the RRR Division for its approval. The State of California AB 341 requires any multi - family building housing 5 units or more to have a recycling program in place for its tenants. All commercial businesses generating 4 cubic yards of trash per week must also have a recycling program in place for its employees and clients /customers. Show compliance with these requirements on the building plans. Visit the Resource Recovery and Recycling (RRR) website or contact the RRR Division for requirements of the Waste Management Plan and to obtain the minimum dimensions of the refuse recycling enclosure. The recycling plan shall include: a. List of materials such as white paper, computer paper, metal cans, and glass to be recycled; b. Location of recycling bins; c. Designated recycling coordinator; d. Nature and extent of internal and external pick -up service; e. Pick -up schedule; and f Plan to inform tenants / occupants of service. Miscellaneous D -11 (kkk) 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. (111) Nothing contained in the Development Agreement for this Project or these Conditions of Approval shall prevent Developer from seeking relief pursuant to any Application for Alternative Materials and Methods of Design and Construction or any other relief as otherwise may be permitted and available under the Building Code, Fire Code or any other provision of the SMMC. 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 (mmm)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. (mm) Santa Monica Municipal Code Chapter 8 section 8.44.050 requires an approved automatic fire sprinkler system in ALL new construction and certain remodels or additions. Any building that does not have a designated occupant and use at the time fire sprinkler plans are submitted for approval, the system shall be designed and installed to deliver a minimum density of not less than that required for ordinary hazard, Group 2, with a minimum design area of not less than three thousand square feet. Plans and specifications for fire sprinkler systems shall be submitted and approved prior to system installation. (000) Buildings four or more stories in height shall be provided with not less than one standpipe during construction. (ppp) 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. (qqq) 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 D -12 4 ft. above finished floor and plainly visible and readily accessible or signage shall be provided. (nT) 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. (sss) 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) (ttt) 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 dead -ends not exceeding 20 feet, and 50 feet in fully sprinklered buildings. (nun) 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. (vvv) Show ALL door hardware intended for installation on Exit doors. (www) 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) (xxx) Stairway Identification shall be in compliance with CBC 1022.8 (yyy) Floor -level exit signs are required in Group A, E, I, R -1, R -2 and R -4 occupancies. (zzz) 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. D -13 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. (aaaa) 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. (bbbb) 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 (cccc) 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. 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. (dddd) Plans and specifications for fire alarm systems shall be submitted and approved prior to system installation (eeee) 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. D -14 • Include all accessory uses Building Height • Height in feet (SMMC defines a High -Rise as any structure greater than 55 feet.) • Number of stories • Detail increase in allowable height • Type I (II -FR.) buildings housing Group B office or Group R, Division 1 Occupancies each having floors used for human occupancy located more than 55 feet above the lowest level of fire department vehicle access shall comply with CBC Section 403. a. Automatic sprinkler system. b. Smoke- detection systems. c. Smoke control system conforming to Chapter 9 section 909. d. Fire alarm and communication systems. 1. Emergency voice alarm signaling system. 2. Fire department communication system. e. Central control station. (96 square feet minimum with a minimum dimension of 8' ft) f {omitted} g. Elevators. h. Standby power and light and emergency systems. i. Exits j. Seismic consideration. Total Floor Area of Building or Project • Basic Allowable Floor Area • Floor Area for each room or area • Detail allowable area increase calculations Corridor Construction • Type of Construction • Detail any and all code exceptions being used Occupant Load Calculations • Occupancy Classification for each room or area. • Occupant Load Calculation for each room or area based on use or occupancy D -15 • Total Proposed Occupant Load Means of Egress • Exit width calculations • Exit path of travel • Exit Signage and Pathway Illumination (low level exit signage) Atria - Atria shall comply with CBC Section 404 as follows: • Atria shall not be permitted in buildings containing Group H Occupancies. • The entire building shall be sprinklered. • A mechanically operated smoke - control system meeting the requirements of Section 909 and 909.9 shall be installed. • Smoke detectors shall be installed in accordance with the Fire Code. • Except for open exit balconies within the atrium, the atrium shall be separated from adjacent spaces by one -hour fire- resistive construction. See exceptions to Section 404.6. • When a required exit enters the atrium space, the travel distance from the doorway of the tenant space to an enclosed stairway, horizontal exit, exterior door or exit passageway shall not exceed 200 feet. • In other than jails, prisons and reformatories, sleeping rooms of Group I Occupancies shall not have required exits through the atrium. • Standby power shall be provided for the atrium and tenant space smoke - control system. Sections 404.7 and 909.11. • The interior finish for walls and ceilings of the atrium and all unseparated tenant spaces shall be Class 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 (ffff) Fire Flow Requirements D -16 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 I. The Department's Land Development Unit shall review all subdivisions of land and apply fire flow and hydrant spacing requirements in accordance with this regulation and the present zoning of the subdivision or allowed land use as approved by the County's Regional Planning Commission or city planning department. B. Fire Prevention Engineering Section 1. The Department's Fire Prevention Engineering Section shall review building plans and apply fire flow and hydrant spacing requirements in accordance with this regulation. III. POLICY A. The procedures, standards, and policies contained herein are provided to ensure the adequacy of, and access to, fire protection water and shall be enforced by all Department personnel. 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. D -17 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 I (fire flow per building size). This standard applies to multiple family dwellings, hotels, high rise, commercial, industrial, etc. NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL PRESSURE. B. Building plans The Department's Fire Prevention Engineering Section shall review building plans and apply fire flow requirements and hydrant spacing in accordance with the following: Multiple residential, apartments, single family residences (greater than 5,000 square feet), private schools, hotels, high rise, commercial, industrial, etc. (R -1, E, B, A, I, H, F, M, S) (see Table 1). C. Public fire hydrant requirements 1. Fire hydrants shall be required at intersections and along access ways as spacing requirements dictate 2. Spacing a. All occupancies Other than single family dwellings, such as commercial, industrial, multi - family dwellings, private schools, institutions, detached condominiums (five or more units), etc. Fire hydrant spacing shall be 300 feet. NOTE:The following guidelines shall be used in meeting the hydrant spacing requirements. (1) No portion of lot frontage shall be more than 200 feet via vehicular access from a public hydrant. (2) No portion of a building should exceed 400 feet via vehicular access from a properly spaced public hydrant. b. Supplemental fire protection 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 ENK 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. (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 M All on -site hydrants shall be installed a minimum of 25 feet from a structure or protected by a two -hour firewall. 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 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. E. Public Hydrant 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: QW11 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 11 and 12). G. Hydrant Specifications All required public and on -site fire hydrants shall be installed to the following specifications prior to flow test and acceptance of the system. 1. Hydrants shall be: a. Installed so that the center line of the lowest outlet is between 14 and 24 inches above finished grade b. Installed so that the front of the riser is between 12 and 24 inches behind the curb face C. Installed with outlets facing the curb at a 45- degree angle to the curb line if there are double outlet hydrants d. Similar to the type of construction which conforms to current A.W.W.A. Standards e. Provided with three -foot unobstructed clearance on all sides. f Provided with approved plastic caps g. Painted with two coats of red primer and one coat of traffic signal yellow for public hydrants and one coat of red for on- site hydrants, with the exception of the stems and threads 2. Underground shut -off valves are to be located: a. A minimum distance of 10 feet from the hydrant b. A maximum distance of 25 feet from the hydrant D -21 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). Barricade /Clearance Details CONCRETE CAP 0' BARRICADE POST CONCRETE FILLED 3' MIN, MIN. 4' DIA. SCHEDULE 40 STEEL. SEE NOTE 01 15" Figure 1 CONCRETE 4' MIN. D -22 Figure 2 Figure 3 Notes: 1. 2. 3. 4. 5. 6 "x4 HYL N e 36" OHO d6� \ PLAN FIRE HYDRANT BARRICADES (TYPICAL) Constructed of steel notNess than four irDhes in diameter, six inches if heavy truck traffic is anticipated, schedule 40 steel and concrete filled. Posts shall be set not less than three feet deep in a concrete footing of not less than 15 inches in diameter, with the top of the posts not less than three feet above ground and not less than three feet from the hydrant Posts, fences, vehicles, growth, trash storage and other materials or things shall not be placed or kept near fire hydrants in a manner that would prevent fire hydrants from being immediately discernible. If hydrant is to be barricaded, no barricade shall be constructed in front of the hydrant outlets (Figure 2, shaded area). The exact location of barricades may be changed by the field inspector during a field inspection. D -23 6. The steel pipe above ground shall be painted a minimum of two field coats of primer. 7. Two finish coats of "traffic signal yellow" shall be used for fire hydrant barricades. 8. Figure 3 shows hydrant hook up during fireground operations. Notice apparatus (hydra - assist - valve) connected to hydrant and the required area. Figure 3 shows the importance of not constructing barricades or other obstructions in front of hydrant outlets. H. Blue reflective hvdrant markers renlacement nolic 1. Purpose: To provide information regarding the replacement of blue reflective hydrant markers, following street construction or repair work. a. Fire station personnel shall inform Department of Public Works Road Construction Inspectors of the importance of the blue reflective hydrant markers, and encourage them to enforce their Department permit requirement, that streets and roads be returned to their original condition, following construction or repair work. b. When street construction or repair work occurs within this Department's jurisdiction, the nearest Department of Public Works Permit Office shall be contacted. The location can be found by searching for the jurisdiction office in the "County of Los Angeles Telephone Directory under "Department of Public Works Road Maintenance Division." The importance of the blue reflective hydrant markers should be explained, and the requirement encouraged that the street be returned to its original condition, by replacing the hydrant markers. TABLET* BUILDING SIZE (First floor area) Fire Flow* (1) (2) Duration Hydrant Spacing Under 3,000 sq. ft. 1,000 GPM 2 firs 300 ft 3,000 to 4,999 sq. ft. 1,250 GPM 2 firs 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 his 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 firs 300 ft 25,000 to 29,999 sq. ft. 4,000 GPM 4 firs 300 ft 30,000 to 34,999 sq. ft. 4,500 GPM 4 hrs 300 ft D -24 35,000 or more sq. ft. 5,000 GPM 5 Ins 300 ft x 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 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. D -25 EXHIBIT "E" SMMC ARTICLE 9 (PLANNING AND ZONING) On file with the City Clerk. E -1 EXHIBIT "F" LOCAL HIRING PROGRAM FOR CONSTRUCTION Local Hiring Policy For Construction. Developer shall implement a local hiring policy (the "Local Hiring Policy ") for construction of the Project, consistent with the following guidelines: Pu ose. The purpose of the Local Hiring Policy is to facilitate the employment by Developer and its contractors at the Project of residents of the City of Santa Monica (the "Targeted Job Applicants "), and in particular, those residents who are "Low Income Individuals" (defined below) 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 F -1 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 Developer for any portion or component of the work necessary to construct the Project (excluding architectural, design and other "soft" components of the construction of the Project). C. "Low Income Individual" means a resident of the City of Santa Monica whose household income is no greater than 80% of the Median Income. d. "Median Income" means the median income for the Los Angeles -Long Beach Primary Metropolitan Statistical Area, as published from time to time by the City in connection with its Affordable Housing Production Program pursuant to SMMC Section 9.56. e. "On -Site Jobs" means all jobs by a Contractor under a Contract for which at least fifty percent (50 %) of the work hours for such job requires the employee to be at the Project site, regardless of whether such job is in the nature of an employee or an independent contractor. On -Site Jobs shall not include jobs at the Project site which will be performed by the Contractor's established work crew who have not been hired specifically to work at the Project site. 4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit "F -I," 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 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. F -2 5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs related to the construction of the Project, by Developer and its Contractors. 6. Outreach. So that Targeted Job Applicants are made aware of the availability of On -Site Jobs, Developer or its Contractors shall advertise available On -Site Jobs in the Santa Monica Daily Press or similar local media and /or electronically on a city- sponsored website, if such a resource exists. In addition, Developer shall consult with and provide written notice to at least two first source hiring organizations, which may include but are not limited to the following: 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 7. Hiring. Developer 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. F -3 EXHIBIT "G" CONSTRUCTION MITIGATION OBLIGATIONS Construction Period Mitigation 1. A construction period mitigation plan shall be prepared by the applicant for approval by the following City departments prior to issuance of a building permit: PWD; Fire; Planning and Community Development; and Police. 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; -1 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. Ongoing Requirements throughout the Period of Construction 2. The following requirements shall be maintained throughout the period of the Project's construction: a. A detailed traffic control plan for work zones shall be maintained which includes at a minimum accurate existing and proposed: parking and travel lane configurations; warning, regulatory, guide and directional signage; and area sidewalks, bicycle lanes and parking lanes. The plan shall include specific information regarding the project's construction activities that may disrupt normal pedestrian and traffic flow and the measures to address these disruptions. Such plans must be reviewed and approved by the Transportation Management Division prior to commencement of construction and implemented in accordance with this approval. b. Work within the public right -of -way shall be performed between 9:00 AM and 4:00 PM, including: dirt and demolition material hauling and construction material delivery. Work within the public right -of -way outside of these hours shall only be allowed after the issuance of an after - hours construction permit. C. Streets and equipment shall be cleaned in accordance with established PWD requirements. d. Trucks shall only travel on a City approved construction route. Truck queuing /staging shall not be allowed on Santa Monica streets. Limited queuing may occur on the construction site itself. e. 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. f 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. -2 g. Off - street parking shall be provided for construction workers. This may include the use of a remote location with shuttle transport to the site, if determined necessary by the City of Santa Monica. Project Coordination Elements That Shall Be Implemented Prior To Commencement of Construction 3. Developer shall implement the following measures before construction is commenced: a. The traveling public shall be advised of impending construction activities (e.g. information signs, portable message signs, media listing /notification, implementation of an approved traffic control plan). b. Any construction work requiring encroachment into public rights -of -way, detours or any other work within the public right -of -way shall require approval from the City through issuance of a Use of Public Property Permit, Excavation Permit, Sewer Permit or Oversize Load Permit, as well as any Caltrans Permits required. C. Timely notification of construction schedules shall be given to all affected agencies (e.g., Big Blue Bus, Police Department, Fire Department, Department of Public Works, and Planning and Community Development Department) and to all owners and residential and commercial tenants of property within a radius of 1000 feet. d. Construction work shall be coordinated with affected agencies in advance of start of work. Approvals may take up to two weeks per each submittal. e. The Strategic Transportation Planning Division shall approve of any haul routes, for earth, concrete or construction materials and equipment hauling. Air Quality 4. 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 SCAQMD Rule 403 Handbook: a. 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. b. 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. -3 C. All active portions of the construction site shall be sufficiently watered three times a day to prevent excessive amounts of dust. d. 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. Install wheel washers where vehicles enter and exit the construction site onto paved roads or wash off trucks and any equipment leaving the site each trip. 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. e. 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. f 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. g. Soil stockpiles shall be covered, kept moist, or treated with soil binders to prevent dust generation. h. Cease all grading, earth moving or excavation activities during periods of high winds (i.e., greater than 20 mph measured as instantaneous wind gusts) so as to prevent excessive amounts of dust. Securely cover all material transported on and off -site to prevent excessive amounts of dust. i. Limit on -site vehicle speeds to 15 mph. j. Sweep streets at the end of the day using SCAQMD Rule 1186 certified street sweepers or roadway trucks if visible soil is carried onto adjacent public paved roads (recommend water sweepers with reclaimed water). k. Appoint a construction relations officer to act as a community liaison concerning on -site construction activity including resolution of issues related to PM 10 generation. 5. Construction equipment used on the site shall meet the following conditions in order to minimize NOx and ROC emissions: a. Diesel - powered equipment such as booster pumps or generators should be replaced by electric equipment to the extent feasible; and El b. The operation of heavy -duty construction equipment shall be limited to no more than 5 pieces of equipment at one time. C. Developer shall ensure that architectural coatings used on the Project comply with SCAQMD Rule 1113, which limits the VOC content or architectural coatings. Noise Attenuation 6. All diesel equipment shall be operated with closed engine doors and shall be equipped with factory- recommended mufflers. Electrical power shall be used to run air compressors and similar power tools. 8. 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. 9. Pile driving, excavation, foundation- laying, and conditioning activities (the noisiest phases of construction) shall be restricted to between the hours of 10:00 AM and 3:00 PM, Monday through Friday, in accordance with Section 4.12.110(d) of the Santa Monica Municipal Code. 10. For all noise generating construction activity on the project site, additional noise attenuation techniques shall be employed to reduce noise levels at to 83 dB or less from 8:00 to 6:00 PM weekdays and 9:00 AM to 5:00 PM Saturdays. Per the Noise Ordinance, construction noise may exceed 83 .dB if it only occurs between 10:00 AM and 3:00 PM. Such techniques may include, but are not limited to, the use of sound blankets on noise generating equipment and the construction of temporary sound barriers around the perimeter of the project construction site. Construction Period 11. 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. 12. 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. 13. 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 -5 leaving the site are covered in accordance with this condition of approval. 14. Developer shall prepare a notice, subject to the review by the Director of Planning and Community Development, that lists all construction mitigation requirements, permitted hours of construction, and identifies a contact person at City Hall as well as the developer who will respond to complaints related to the proposed construction. The notice shall be mailed to property owners and residents of the neighborhood within 1000 feet of the Project at least five (5) days prior to the start of construction. 15. 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. 16. 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. 17. 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. 18. In accordance with Municipal Code Section 4.12.120, the project applicant shall be required to post a sign informing all workers and subcontractors of the time restrictions for construction activities. The sign shall also include the City telephone numbers where violations can be reported and complaints associated with construction noise can be submitted. Construction period signage shall be subject to the approval of the Architectural Review Board. N EXHIBIT "H" [Reserved] Is EXHIBIT "I" 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: Kevin V. Kozal 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 -1 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. 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" 1 -2 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 .0 Planning Director 1 -3 Approved and adopted this 25th day of November, 2014. am O'Connor, Mayor State of California ) County of Los Angeles ) ss. City of Santa Monica ) I, Sarah P. Gorman, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Ordinance No. 2475 (CCS) had its introduction on November 11, 2014, and was adopted at the Santa Monica City Council meeting held on November 25, 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. 2475 (CCS) was duly published pursuant to California Government Code Section 40806 . ATTEST: Sarah P. Gorman, City Clerk