O2495F:1MunicipalLaw\Share\LAWS\Barry11415 5th Street DA Ord. 10-27-2015
City Council Meeting: 10-27-2015 Santa Monica, California
ORDINANCE NUMBER Z C{ (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 14155NMS, LLC
WHEREAS, on April 17, 2012, 14155NMS, LLC, hereinafter "Developer,"
submitted an application for a development agreement ("Development Agreement")
which, as revised, involves the construction of a 52,545 square -foot, 6 -story (84 feet)
mixed-use project consisting of 64 residential units (including 50 market rate units
and fourteen deed restricted affordable units above 6,345 square feet of ground floor
commercial uses and 105 subterranean automobile parking spaces ("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, on July 22, 2015, the City's Planning Commission held a duly
noticed public hearing on the Development Agreement and at such hearing, the
Planning Commission recommended that the City Council approve the project, with
specified modifications, based on the written findings contained in the staff report for
that date; 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
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staff report prepared for this proposed project and the exhibits thereto, including but
not limited to:
(a) The proposed mixed-use project is consistent with LUCE Policy D7.1 of
the Downtown District in that the project balances a broad mix of uses that creates
dynamic activity in both the daytime and evening hours including retail and high-
density residential uses in the Downtown; and
(b) The proposed project is consistent with Policy D7.2 in that the project
encourages local -serving uses that are an integral part of complete neighborhoods
and support an overall trip reduction strategy; and
(c) Consistent with Policy D8.7, the project encourages mixed-use
developments to have active ground floor uses that face the boulevard with
residential uses located on the upper floors; and
(d) Consistent with Policy D8.3, the project encourages the design of buildings
with a variety of heights, architectural elements and shapes to create visual interest
along the street with walls that have meaningful combinations of materials and
articulation that creates shadow patterns to engage the eye; and
(e) The proposed project is consistent with Policy T19.2 in that the project
implements a Transportation Demand Management Plan to reduce vehicle trips in the
area and reduce associated parking demand; and
(f) Consistent with the LUCE`s overall land use policies, the project provides
community benefits, including but not limited to, affordable housing, LEED® Platinum
certification, extensive water conservation measures, transportation demand
measurement measures, a transit impact contribution, an early childhood initiatives
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contribution, an open space contribution, a contribution to the Big Blue Bus, and a
contribution for Historic Preservation,
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 14155MNS, LLC, which is attached hereto as
Exhibit 1 and incorporated herein by reference, is hereby approved.
SECTION 2. Each and every term and condition of the Development
Agreement approved in Section 1 of this Ordinance shall be and is made a part of the
Santa Monica Municipal Code and any appendices thereto. The City Council of the
City of Santa Monica finds that public necessity, public convenience, and general
welfare require that any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Development Agreement, to the extent
of such inconsistencies and no further, be repealed or modified to that extent
necessary to make fully effective the provisions of this Development Agreement.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto, inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, are hereby repealed or modified to that extent
necessary to effect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
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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:
0
EXHIBIT 1
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
1415NMS, LLC
,2015
TABLE BE CONTENTS
Recitals........................................................................................................................................... l
Article1
Definitions..........................................................................................................3
Article 2
Description of the Project...................................................................................... 5
2.1
General Description............................................................................................... 5
2.2
Principal Components of the Project..................................................................... 5
2.3
No Obligation to Develop...................................................................................... 6
2.4
Vested Rights.........................................................................................................6
2.5
Permitted Uses.......................................................................................................
9
2.6
Significant Project Features.................................................................................10
2.7
LUCE Community Benefits.................................................................................10
2.8
Parking .................................................................................................................
25
2.9
Design..................................................................................................................
26
2.10
Contract with City................................................................................................
26
Article3
Construction.........................................................................................................
27
3.1
Construction Mitigation Plan...............................................................................
27
3.2
Construction Hours..............................................................................................
27
3.3
Outside Building Permit Issuance Date...............................................................
27
3.4
Construction Period.............................................................................................
27
3.5
Damage or Destruction........................................................................................
27
Article 4
Project Fees, Exactions, and Conditions..............................................................
28
4.1
Fees, Exactions, and Conditions..........................................................................
28
4.2
Conditions on Modifications................................................................................
28
4.3
Implementation of Conditions of Approval.........................................................
28
i
Article 5
Effect of Agreement on City Laws and Regulations...........................................
28
5.1
Development Standards for the Property; Existing Regulations .........................
28
5.2
Permitted Subsequent Code Changes..................................................................
29
5.3
Common Set of Existing Regulations..................................................................
31
5.4
Conflicting Enactments........................................................................................
31
5.5
Timing of Development.......................................................................................
31
Article 6
Architectural Review Board................................................................................
31
6.1
Architectural Review Board Approval................................................................
31
6.2
Expiration of ARB Approval...............................................................................
32
Article 7
City Technical Permits.........................................................................................
32
7.1
Definitions............................................................................................................32
7.2
Diligent Action by City........................................................................................
32
7.3
Conditions for Diligent Action by the City..........................................................
32
7.4
Duration of Technical City Permits.....................................................................
33
7.5
Accessibility of Affordable Units........................................................................
34
Article 8
Amendment and Modification.............................................................................
34
8.1
Amendment and Modification of Development Agreement ...............................
34
Article9
Term.....................................................................................................................
34
9.1
Effective Date...................................................................................................... 34
9.2
Term.....................................................................................................................34
Article 10 Periodic Review of Compliance......................................................... ...................
35
10.1
City Review.........................................................................................................
35
10.2
Evidence of Good Faith Compliance...................................................................
35
10.3
Information to be Provided to Developer............................................................
35
10.4
Notice of Breach; Cure Rights.............................................................................
35
ii
10.5
failure of Periodic Review..................................................................................
35
10.6
Termination of Development Agreement............................................................
35
10.7
City Cost Recovery..............................................................................................
36
Article11
Default..................................................................................................................36
11.1
Notice and Cure...................................................................................................
36
11.2
Remedies for Monetary Default...........................................................................
36
11.3
Remedies for Non-Monetaty Default..................................................................
37
11.4
Modification or Termination Agreement by City ................................................
38
11.5
Cessation of Rights and Obligations....................................................................39
11.6
Completion of Improvements..............................................................................
39
Article12
Mortgagees...........................................................................................................40
12.1
Encumbrances on the Property............................................................................
40
Article 13
Transfers and Assignments..................................................................................
42
13.1
Transfers and Assignments..................................................................................
42
13.2
Release Upon Transfer.........................................................................................
42
Article14
Indemnity to City.................................................................................................
42
14.1
Indemnity.............................................................................................................
42
14.2
City's Right to Defense........................................................................................
43
Article 15
General Provisions............................................................................................... 43
15.1
Notices.................................................................................................................
43
15.2
Entire Agreement; Conflicts ............................................................................
44
15.3
Binding Effect... ...................................................................................................
44
15.4
Agreement Not for Benefit of Third Parties........................................................
44
15.5
No Partnership or Joint Venture..........................................................................
44
15.6
Estoppel Certificates............................................................................................
44
iii
15.7 Time.....................................................................................................................
45
15.8 Excusable Delays.................................................................................................
45
15.9 Governing Law....................................................................................................
46
15.10 Cooperation in Event of Legal Challenge to Agreement.....................................
46
15.11 Attorneys' Fees....................................................................................................
46
15.12 Recordation..........................................................................................................
47
15.13 No Waiver........................................................................................................47
15.14 Construction of this Agreement...........................................................................
47
15.15 Other Governmental Approvals...........................................................................
47
15.16 Venue..................................................................................................................
48
15.17 Exhibits................................................................................................................
48
15.18 Counterpart Signatures.........................................................................................49
15.19 Certificate of Performance...................................................................................
49
15.20 Interest of Developer............................................................................................
49
15.21 Operating Memoranda.........................................................................................
49
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer .........
49
15.23 Not a Public Dedication.......................................................................................
50
15.24 Other Agreements................................................................................................
50
15.25 Severability and Termination............................................................................... 50
Exhibit "A" Legal Description of Property
Exhibit "B" Project Plans
Exhibit "C" Permitted Fees and Exactions
Exhibit "D" Conditions of Approval
Exhibit "E" SMMC Article 9 (Planning and Zoning)
Exhibit "F-1" Local Hiring Program for Construction
Exhibit "F-2" Local Hiring Program for Permanent Employment
Exhibit "G" Construction Mitigation Plan
Exhibit "H" Assignment and Assumption Agreement
Exhibit "I" Alcohol Conditions
Exhibit " r Agreement Imposing Restrictions on Rents & Occupancy of Real Property
iv
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement"), dated , 2015 ("Effective
Date"), is entered into by and between 14155NMS LLC ("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:
I:90141YIr:\If.`
A. Pursuant to California Government Code Section 65864 et seq., Chapter 9.60 of
the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No. 2487, as extended
and modified, (collectively, the "Development Agreement Statues"), the City is authorized to
enter into binding development agreements with persons or entities having a legal or equitable
interest in real property for the development of such real property.
B. Developer is the owner of approximately 15,000 square feet of land located in the
City of Santa Monica, State of California, commonly known as 1415 5th Street, Santa Monica
CA as more particularly described in Exhibit "A" attached hereto and incorporated herein by
this reference (the "Property").
C. The City has included the Property within the Downtown Core land use
designation 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 mixed use project with subterranean parking.
D. On April 17, 2012, Developer filed an application for a Development Agreement,
pursuant to Santa Monica Municipal Code ("SMMC") Section 9.60 (the "Development
Application"). The Development Application was designated by the City as Application No.
DEV 12-003, The Development Application is to permit construction of a six (6) story, eighty
four (84) foot mixed use project consisting of sixty four (64) residential units above 7,535 square
feet of ground floor neighborhood -serving commercial uses and one hundred and five (105)
below grade parking spaces, as more fully descried in this Agreement.
E. On June 24, 2015, the City Council adopted Interim Ordinance No. 2487
("Downtown IZO"). The Downtown IZO prohibits the issuance of permits for development
projects which would exceed 32 feet in height in the Downtown Core as delineated in the Land
Use Designation Map approved by the City Council on July 6, 2010 unless developed pursuant
to a development agreement adopted in accordance with SMMC Chapter 9.60. 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 Public
Resources Code Section 21159.24.
H. The primary purpose of the Project is to provide a mix of uses including 64
residential units (including fifty(50) market rate units and fourteen (14) deed restricted
Affordable Units) above 7,535 square feet of ground floor commercial uses and one hundred and
five (105) total subterranean automobile parking spaces. The Parties desire to enter into this
Agreement in conformance with the Development Agreement Statutes in order to achieve the
development of the Project on the Property.
1. 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.
J. This Agreement is consistent with the public health, safety, and welfare needs of
the residents of the City and the surrounding region. The City has specifically considered and
approved the impact and benefits of the development of the Project on the Property in
accordance with this Agreement upon the welfare of the region. The Project will provide a
number of public benefits, including without limitation the following: (a) eight (8) one -bedroom
units affordable to Fifty Percent Income Households, two (2) two-bedroom units affordable to
Fifty Percent Income Households, three (3) two-bedroom units affordable to Eighty Percent
Income Households, and one (1) studio unit affordable to Eighty Percent Income Househoids, (b)
sustainable building design at a LEED® Platinum certification rating plus additional water
conservation measures, (c) transportation demand management ("TDM") benefits, (d) additional
Transportation, Parks and Recreation and Childcare Linkage Fees in excess of SMMC
requirements, (e) financial contribution to the Big Blue Bus, (f) financial contribution to historic
preservation, (g) financial contribution to water conservation programs, (h) electric vehicle
charging stations, (i) photovoltaic rooftop panels, 0) a local hiring program and (k) a local
housing preference plan.
K. The City Council has found that the provisions of this Development Agreement
are consistent with the relevant provisions of (1) City's General Plan, including the LUCE.
L. On July 15, 2015, the City's Planning Commission held a duly noticed public
hearing on the Development Application, this Agreement, and at such hearing, the Planning
Commission recommended that the City Council approve the Project and this Agreement, with
certain recommended changes.
M. On October 13, 2015, the City Council held a duly noticed public hearing on the
Development Application, this Agreement and introduced Ordinance No. for first reading,
approving this Agreement.
N. On October 27, 2015, the City Council adopted Ordinance No. , approving
this Agreement.
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NOW THEREFORE, in consideration for the covenants and conditions hereinafter set
forth, the Parties hereto do hereby agree as follows:
ARTICI.F 1
DEFINITIONS
Capitalized terms not defined below shall have the meanings set forth in the City's
Zoning Ordinance. 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 hent" means:
1.2.1 For thirty percent income households, the product of thirty percent times
thirty percent of the area median income adjusted for household size appropriate for the unit.
1.2.2 For fifty percent income households, the product of thirty percent times
fifty percent of the area median income adjusted for household size appropriate for the unit.
1.2.3 For eighty percent income households whose gross incomes exceed the
maximum incomes for fifty percent income households, the product of thirty percent times sixty
percent of the area median income adjusted for household size appropriate for the unit.
1.3 "Affordable Units" means dwelling units within the Project that are deed
restricted for a 55 year period that are available to and occupied by Fifty Percent Income
Households and Eighty Percent Income Households at Affordable Rent.
1.4 "ARB" means the City's Architectural Review Board.
1.5 "Area Median Income or AMI" means the median family income published
from time to time by the United States Department of Housing and Urban Development
("HUD") for the Los Angeles -Long Beach Metropolitan Statistical Area.
1.6 "Building" means the Project's single above grades structure.
1.7 "City Council" means the City Council of the City of Santa Monica, or its
designee.
1.8 "City General Plan" or "General Plan" means the General Plan of the City of
Santa Monica, and all elements thereof including the LUCE, as of the Effective Date unless
otherwise indicated in this Agreement,
1.9 "City Parties" means the City, its City Council, boards and commissions,
departments, officers, agents, employees, volunteers and other representatives.
1.10 "Certificate of Occupancy" means either temporary or permanent Certificate of
Occupancy, unless otherwise expressly specified in this Agreement.
1.11 "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.
1.12 "Effective Date" has the meaning set forth in Section 9.1 below.
1.13 "Eighty Percent Income Household" means a household whose gross income
does not exceed the eighty percent income limits applicable to the Los Angeles -Long Beach
Primary Metropolitan Statistical Area, adjusted for household size, as published and periodically
updated by HUD.
1.14 "Fifty Percent Income Household" means a household whose gross income does
not exceed the fifty percent income limits applicable to the Los Angeles -Long Beach Primary
Metropolitan Statistical Area, adjusted for household size, as published and periodically updated
by HUD.
1.15 "Floor Area" has the meaning as defined in Section 9.52.020.0870 of the Zoning
Ordinance. However, 500 square feet of outdoor dining area shall be excluded when calculating
parking requirement for the Project.
1.16 "Floor Area Ratio" and FAR" means floor area ratio as defined in
Section 9.52.020.0880 of the Zoning Ordinance.
1.17 "Including" means "including, but not limited to."
1.18 "LEEDS Rating System" means the Leadership in Energy and Environmental
Design (LEEDS) Green Building Rating System known as "LEED For Homes: Multifamily
Mid -Rise, October 2010, CA Version, 2011 Update."
1.19 "Legal Action" means any action in law or equity.
1.20 "Life of the Project" shall mean a period commencing on the date of Certificate
of Occupancy is issued for the Project and ending on the date which is fifty-five (55) years from
Certificate of Occupancy for the Project; provided, however, that if the Project is damaged or
destroyed and cannot be rebuilt in accordance with the development standards permitted in this
Agreement, then the Life of the Project shall be deemed to have ended as of the date of such
damage or destruction.
1.21 "Maximum Floor Area" means 52,545 square feet of floor area.
1.22 "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.
1.23 "Parties" mean both the City and Developer and "Party" means either the City
or Developer, as applicable.
E
1.24 "Planning Director" means the Planning Director of the City of Santa Monica, or
his or her designee.
1.25 "Project" means the development project reflected on the Project Plans.
1.26 "Project Pians" mean the plans for the Project that are attached to this
Agreement as Exhibit "B."
1.27 "Dental Housing Units" means the 64 residential rental units in the Project.
1.28 "SMMC" means the Santa Monica Municipal Code in effect on the Effective
Date unless specifically stated to refer to the Santa Monica Municipal Code as it may in effect at
some other time.
1.29 "Thirty Percent Income Household" means a household whose gross income
does not exceed the thirty percent income limits applicable to the Los Angeles -Long Beach
Primary Metropolitan Statistical Area, adjusted for household size, as published and periodically
updated by HUD.+
1.30 "Zoning Ordinance" means the City of Santa Monica Comprehensive Land Use
and Zoning Ordinance (Chapter 9.01-9.52 of the SMMC), and any applicable Interim Zoning
Ordinance, as the same are in effect on the Effective Date, set forth in its entirety as part of
Exhibit "E" (Planning and Zoning).
ARTICLE 2
DESCRIPTION OF THE PROJECT
2.1 General Description. The Project includes all aspects of the proposed
development of the Property as more particularly described in this Agreement and on the Project
Plans. If there is a conflict or inconsistency between the text of this Agreement and the Project
Plans, the Project Plans will prevail; provided, however, that omissions from the Project Plans
shall not constitute a conflict or inconsistency with the text of this Agreement.
2.2 Principal Components of the Proms. 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) 64
residential apartment units (comprised of fifty (50) market rate units and fourteen (14)
Affordable Units), (b) 7,535 square feet of neighborhood serving commercial floor area and (c)
105 subterranean parking spaces.
2.3 No Obligation to Develop.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require Developer to
proceed with the construction of the Project or any portion thereof.
(b) The decision to proceed or to forbear or delay in proceeding with
construction of the Project or any portion thereof shall be in Developer's sole discretion.
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(c) Failure by Developer to proceed with construction of the Project or
any portion thereof shall not give rise to any liability, claim for damages or cause of action
against Developer, except as may arise pursuant to a nuisance abatement proceeding under
SMMC Chapter 8.96, or any successor legislation.
2.3.2 Failure by Developer to proceed with construction of the Projector any
portion thereof shall not result in any loss or diminution of development rights, except upon
expiration of Developer's vested rights pursuant to this Agreement, or the termination of this
Agreement.
2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary,
Developer shall be required to implement all conditions of approval required under this
Agreement in accordance with 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.
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;
Section 2.5 below;
(b) Any change in use not consistent with the permitted uses defined in
2
(c) Any reduction in the number of Affordable Units required under
Section 2.7.1.
(d) Any increase in the number of Rental Housing Units in excess of 64
units.
(e) Any decrease in the number of parking spaces such that the aggregate
number of parking spaces in the Project, after such reduction, would be less than the minimum
number of spaces required by the Downtown Specific Plan, if adopted by the City by the date
Developer requests such Major Modification. Additionally, any such request shall (i) be
supported by a Developer -prepared written report that demonstrates that the proposed, reduced
number of parking spaces will meet the Project's peak parking demand and (ii) Developer shall
obtain the Planning Director's approval of such report.
(f) An increase of more than five percent (5%) in the number of parking
spaces shown on the Project Plans but in no case shall the increase exceed the parking
maximums established by the Downtown Specific Plan, if adopted by the City by the date
Developer request such Major Modification.
(g) Any material change in the number or location of curb cuts shown on
the Project Plans;
(h) 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
(i) Any change that would substantially reduce or alter the significant
project features as set forth in Section 2.6 and community benefits as set forth in Section 2.7.
If a proposed modification does not exceed the Major Modification
thresholds established above, then the proposed modification may be reviewed in accordance
with Section 2.4.2.
2.4.4 City Consent to Modification. The Planning Director shall not
unreasonably withhold, condition, or delay his or her approval of a request for such Minor
Modification. The City may impose fees, exactions, conditions, and mitigation measures in
connection with its approval of a Minor or Major Modification, subject to any applicable law.
Notwithstanding anything to the contrary herein or in the Existing Regulations, if the Planning
Director approves a Minor Modification or if the City approves a Major Modification (and the
corresponding amendment to this Agreement for such Major Modification), as the case may be,
Developer shall not be required to obtain any other Discretionary Approvals for such
modification, except for ARB approval, in the case of certain Major Modifications.
2.4.5 Right to Develop. Subject to the provisions of Section 3.3 below, during
the Term (as defined in Section 9.2 below) of this Development Agreement, Developer shall
have the vested rights (the "Vested Rights") to (a) develop and construct the Project in
accordance with the following: (i) the Project Plans (as the same may be modified from time to
time in accordance with this Agreement); (ii) any Minor Modifications approved in accordance
with Section 2.4.2; (iii) any Major Modifications which are approved pursuant to Section 2.4.3;
7
and (iv) the requirements and obligations of Developer related to the improvements which are
specifically set forth in this Agreement, and (b) use and occupy the Project for the permitted uses
set forth in Section 2.5. Except for any required approvals from the ARB pursuant to Section 6.1
of this Agreement, the City shall have no further discretion over the elements of the Project
which have been delineated in the Project Plans (as the same may be modified from time to time
in accordance with this Agreement).
2.4.6 Foundation Only Building Permit. Santa Monica Municipal Code Section
8.08.070(b) allows for issuance of partial permits for portions of a structure. Developer may
submit an application for a Foundation Only Permit, which application shall be processed
according to the Building and Safety Division's Foundation Only Permit policy (PT -05-03, or
any successor thereto).
2.5 Permitted Uses. The City approves the following permitted uses for the Project:
2.5.1 Above the Ground Floor: Rental housing.
2.5.2 On the Ground Floor: Any non-residential uses permitted by the Zoning
Ordinance in effect at the time the use is established, provided that all such uses shall be
primarily neighborhood sewing goods, services, or retail uses. These neighborhood -serving
nonresidential uses shall be active small-scale general or specialty establishments primarily
serving residents or employees of the neighborhood, including guests of hotels located in the
neighborhood ("Active Neighborhood Serving Uses"). A determination that a use constitutes
an "Active Neighborhood Serving Use" shall be rendered by the City at the time of issuance of a
business license for each such individual use and not thereafter. Restaurants are automatically to
be deemed "Active Neighborhood Serving Uses." For purposes of this Agreement, given the
Property's location in the Downtown Core Designation, Active Neighborhood Serving Uses of
not more than 7,500 square feet of usable area, not including subterranean storage areas, the
transformer area, meter area, or refuse area, shall be deemed "small scale establishments."
2.5.3 Conditional Use Permit. Any non-residential uses permitted. by
Conditional Use Permit by the Zoning Ordinance in effect at the time the use is established,
provided that all such uses shall be primarily neighborhood serving goods, services, or retail
uses. These neighborhood -serving nonresidential uses shall be active small-scale general or
specialty establishments primarily serving residents or employees of the neighborhood, including
guests of hotels located in the neighborhood ("Active Neighborhood Serving Uses"). A
determination that a use constitutes an "Active Neighborhood Serving Use" shall be rendered by
the City at the time of issuance of a business license for each such individual use and not
thereafter. Restaurants are automatically to be deemed "Active Neighborhood Serving Uses."
For purposes of this Agreement, given the Property's location in the Downtown Core
Designation, Active Neighborhood Serving Uses of not more than 7,500 square feet of usable
area, not including subterranean storage areas, the transformer area, meter area, or refuse area,
shall be deemed "small scale establishments." Such uses (a) may not commence until the
requisite City discretionary planning approval and a business license are obtained and (b) are not
permitted above the ground floor.
2.5.4 Other Uses Subject to Discretionary City Planning Approvals. In addition
to the Permitted Uses, Developer may seek a discretionary planning approval for ground floor
uses that are allowed by any other City discretionary process as provided in the Zoning
Ordinance in effect when the use is sought to be established, provided that all such uses shall be
Active Neighborhood Serving Uses as defined in Section 2.5.2 and shall be subject to Section
2.5.5. Such uses (a) may not commence until the requisite City discretionary planning approval
and a business license are obtained and (b) are not permitted above the ground floor.
2.5.5 Alcoholic Beverage Permits.
(a) In the event Developer or a business operator proposes a new
business or use dispensing for sale or other consideration, alcoholic beverages, including beer,
wine, malt beverages, and distilled spirits for on-site or off-site consumption, a Conditional Use
Permit shall be required pursuant to SMMC Section 9.31.040, or any successor thereto, except
for Restaurants complying with Section 2.5.4(b) below. No Conditional Use Permit shall be
required for catered events for which Developer obtains the permits then required for such
events. This Section 2.5.5 shall survive the Term of this Agreement and shall remain binding on
Developer, its successors and assigns, and shall continue in effect for the Life of the Project.
Notice of the terms and conditions in Exhibit "I" shall be recorded separately from and
concurrently with this Agreement.
(b) Restaurants which offer alcoholic beverages including beer or wine
incidental to meal service shall be exempt from the provisions of SMMC Section 9.31.040 of the
Zoning Ordinance, provided that the operator of the Restaurant (or Developer if Developer is the
applicant) agrees in writing to comply with all of the criteria and conditions in Exhibit 66I" of
this Agreement and the Developer shall cause the applicable lease to contain a clause that
requires the restaurant tenant to comply with such terms and conditions.
2.6 Significant Project Features. Set forth below in this Section 2.6 are the significant
project features to be achieved and/or developed in accordance with the terms of this Agreement.
2.6.1 Increased Tax Revenues. Increasing tax revenues, including sales tax,
property tax, business license tax, parking tax, and utility user's tax;
2.6.2 Aesthetic Enhancement to the Downtown Core. Development of a well-
designed mixed use development;
2.6.3 Construction Employment Opportunities. An estimated one -hundred
(100) new design and construction related employment opportunities;
2.6.4 Affordable Housing Production Program. In satisfaction of its affordable
housing obligations under SMMC Section 9.64, the Affordable Housing Production Program,
Developer shall deed restrict six (6) one -bedroom units that are available to and occupied by
Fifty Percent Income Households at Affordable Rent ("AHPP Units").
2.6.5 Developer Contribution for Cultural Arts. Developer shall, prior to
issuance of a building permit, pay a cultural arts fee as required by SMMC Chapter 9.30.
2.6.6 Various standard public improvements and fees. Developer shall pay fees
and construct improvements as required by the Santa Monica Municipal Code.
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2.7 LUCE Community Benefits. Set forth below in this Section 2.7 are the additional
community benefits that will be provided by the Project:
2.7.1 Additional Affordable Housing Units. In addition to the six (6) AHPP
Units required in Section 2.6,4, the Developer shall provide eight (8) additional Affordable Units
as follows: two (2) one-bedroom and two (2) two-bedroom units available to and occupied by
Fifty Percent Income Households at Affordable Rent and one (1) studio and three (3) two-
bedroom units available to and occupied by Eighty Percent Income Households at Affordable
Rent for a total of fourteen (14) Affordable Units in the Project. All Affordable Units shall be
subject to the Affordable Housing Production Program except as expressly modified in this
Agreement.
2.7.2 Form of Deed Restrictions. The deed restrictions for the six (6) AHPP
Units and the eight (8) additional Affordable Units shall survive the Term of this Agreement
shall remain binding on Developer, its successor and assigns, and shall continue in effect for the
greater of fifty-five (55) years or the Life of the Project. The deed restrictions shall be in the
form of Exhibit "J" and shall be recorded separately from and concurrently with this
Agreement.
2,7.3 Affordable Housing Availability for Disabled Households, Developer
shall inform local' disability advocacy organizations of the mechanism for applying to be placed
on the City's Affordable Housing waiting list administered by the City's Housing Division and
whether the City's Affordable Housing waiting list is currently accepting applications.
2.7.4 Sustainable Design Status: LEEDS Platinum Requirement. Developer
shall design the Project so that, at a minimum, the Project shall achieve LEEDS "Platinum"
certification under the LEED® Rating System known as "LEED for Homes: Multifamily Mid-
Rise, October 2010, CA Version, 2011 Update" (the "Sustainable Design Status"). Developer
shall retain the services of a LEED accredited professional to consult with Developer regarding
inclusion of sustainable design features for the Project. Developer shall confirm to the City that
the design for the Project has achieved the Sustainable Design Status in accordance with the
following requirements:
(a) Prior to the submission of plans for Architecture Review Board
review, Developer shall submit a preliminary checklist of anticipated LEEDO credits (that shall
be prepared by the LEEDO accredited professional) for review by the City, along with a
narrative to demonstrate that the Project is likely to achieve the Sustainable Design Status.
Developer shall:
(b) Prior to submittal of the plan check application for the Project,
1) Submit for review by the City an updated checklist of
anticipated LEED® credits along with a narrative
describing the project's sustainable features to demonstrate
that the Building is likely to achieve the Sustainable Design
Status;
2) Retain the services of a third party, independent individual
designated to organize, lead, review, and complete the
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process of verifying and documenting that a building and
all of its systems and assemblies are planned, designed,
installed, and tested to meet the Building's requirements
(the "Commissioning Authority"); and
3) Submit a Commissioning Plan which includes the elements
specified in California Code of Regulations Title 24, Part
11, Section 5.410.2.3 or any successor thereto.
(c) Prior to issuance of a final Certificate of Occupancy for the
Project, the City shall verify (which verification shall not be unreasonably withheld, conditioned
or delayed) that the Project has achieved the Sustainable Design Status.
(d) Notwithstanding the foregoing, if the City has not verified that the
constructed Project has achieved the Sustainable Design Status, the City shall nonetheless issue a
temporary Certificate of Occupancy for the Project (assuming that the Project is otherwise
entitled to receive a temporary Certificate of Occupancy). The temporary Certificate of
Occupancy shall be converted to a final Certificate of Occupancy (assuming that the Project is
otherwise entitled to receive a final Certificate of Occupancy) once the constructed Project has
achieved the Sustainable Design Status.
(e) If the Project is denied certification for the Sustainable Design
Status by the Green Building Certification Institute, and the Developer has exhausted all
administrative remedies and appeals of that denial, then the City shall issue a Certificate of
Occupancy upon the Developer paying a fine in the amount of four dollars ($4.00) per square
foot of Project Floor Area to be used for the City's Sustainability Programs. This fine may be
waived if the City in its sole discretion determines that Developer made a good faith effort to
achieve the Sustainable Design Status.
2.7.5 Water Conservation. Developer shall achieve a Water Conservation
Requirement, defined as (i) fifty percent (50%) below the CALGreen (Title 24) baseline for
exterior water use and landscaping, and (ii) thirty percent (30%) below the CALGreen (Title 24)
baseline for interior building water use. Water supply may include potable and non -potable
water to the extent possible due to regulatory approval. The following measures shall be
required for the commercial and residential component of the Project, as applicable:
(a) 1.0 gallons per flush or less tank -type toilets in the residential units
and 1.1 gallons per flush, flush valve toilets in the commercial spaces;
(b)
(c)
factor of 3.2 or less;
(d)
water factor of 4.5 or less
1.75 gallons per minute or less showerheads;
Individual clothes washers shall have a CEE integrated water
Common use clothes washers installed shall have an integrated
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(e) .50 gallons per minute or less bathroom faucets, unless prohibited
by applicable government regulations; otherwise, lowest gallons per minute residential lavatory
faucets that are commercially available;
(f) 1.5 gallon per minute kitchen sink faucets;
(g) All residential units shall be individually sub -metered;
(h) Any permanent irrigation system installed in the project shall be as
water efficient as a drip irrigation system and shall include moisture sensors in each planter.
2.7.6 Energy Conservation. Developer shall implement the following energy
conservation measures:
(a) Developer shall install photovoltaic Panels on the roof deck of the
Project sufficient to generate energy to power the Project's common areas, excluding elevator
shafts.
(b) The Project shall be designed to use and shall achieve 15% less
energy than required by the California Energy Code.
(c) In order to maximize renewable energy opportunities for this
Project, solar energy systems, including photovoltaic panels, solar thermal/hot water systems,
and/or other types of commercially available solar energy systems, shall be installed on the
Building's roof in areas available and appropriate for solar placement to the maximum extent
reasonably possible, as confirmed by the City's Planning Director working in consultation with
the City's Office of Sustainability. Areas of the roof available and appropriate for solar systems
placement shall exclude any areas necessary or required for rooftop equipment, any roof areas
necessary for building or equipment maintenance, Fire Department access, and/or other
applicable code, legally -mandated or otherwise necessary access and/or clearances, and up to
twelve percent (12%) of rooftop areas designated on the Project plans for tenant amenities and/or
open space. The type or types of such renewable energy systems to be installed on the
Building's roof shall be as recommended by a professional engineer trained in solar system
design and installation on similar types of commercial buildings in downtown urban
environments. The professional engineer shall consult with the City's Office of Sustainability
during the process of evaluating and selecting the type or types of renewable energy systems for
this Building. Any such solar system installations shall not be counted in the determination of
the maximum height of the Building.
2.7.7 Transportation Demand Management Plan ("TDM Plan"). Developer
shall implement and maintain the following Transportation Demand Management Plan ("TDI[
Plan") commencing with the issuance of a Certificate of Occupancy:
(a) TDM Plan Format. Prior to issuance of Certificate of Occupancy,
Developer shall prepare a TDM Plan for review and approval by the City. Physical components
of the TDM Plan as required by Section 2.7.7(4) must be shown on the construction drawings
and be approved by the City. The TDM Plan shall be designed to achieve the AVR Target and
shall 'include:
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1) Project description
2) Site conditions that affect commute travel
3) Statement of commitment from Developer to:
(i) Conduct annual surveys in conformance with this
Agreement to determine vehicle trip behavior including collection of data on employee means of
travel, arrival time, and interest in information on ridesharing opportunities. The annual survey
shall not be required for residential units.
(ii) Monitor the TDM Plan
(iii) Report annually in a manner required by this
Agreement
4) Annual Budget to implement the TDM Plan
5) Duties, responsibilities, and qualifications of the PTC
6) TDM Plan program measures as required by this
Agreement
7) Implementation Strategy that specifies how the TDM Plan
will be implemented, monitored, and who will be responsible for submitting annual status report
to the City.
(b) Annual Report on TDM Plan. Developer shall submit an annual
monitoring report on the TDM Plan ("TDM Annual Status Rcport") starting on the first
anniversary of issuance of the project's Certificate of Occupancy. The TDM Annual Status
Report shall include the following:
1) Confirmation of compliance with all TDM Plan elements
2) AVR calculations and documentation for the monitoring
year based upon cumulative employee surveys for the project undertaken for one consecutive
week each year. The survey must be conducted in accordance with Section 2.7.7(e)(2)(v) except
that zero emission vehicles shall be counted as vehicles.
3) Updated statement of commitment from Developer
4) Updated annual budget to implement TDM Plan
5) Updated contact information including name, e-mail
address, and proof of certification of the Project Transportation Coordinator, as defined by
2.7.7(e)(1)(iii) below, who is responsible for the preparation, implementation, and monitoring of
the TDM Plan
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b) Effect of the TDM Plan on on-site transportation choice,
parking availability, and transit ridership.
7) Updated implementation strategy.
(c) Transportation Demand Management Ordinance. Commercial
tenants in the Project shall be subject to SMMC Chapter 9.53 (the Transportation Demand
Management Ordinance), or any successor thereto. In the case of any inconsistency between this
Agreement and the Transportation Demand Management Ordinance, the more restrictive
requirements shall apply.
(d) Physical Elements
1) Measures Applicable to Entire Project (Commercial and
Residential Elements):
(i) Transportation Information Center. The Developer
shall maintain, for the life of the Project, a Transportation Information Center ("TIC') in a
location identified on the Project Plans. The location may be relocated from time to time
thereafter by the Developer. The TIC shall include information for employees, visitors and
residents about:
A. Local public transit services, including
current maps, bus lines, light rail lines, fare information, schedules for public transit routes
serving the Project, telephone numbers and website links for referrals on transportation
information, including numbers for the regional ridesharing agency, vanpool providers,
ridematching and local transit operators, ridesharing promotional material supplied by
commuter -oriented organizations and shuttles; and
B. Bicycle facilities, including routes, rental
and sales locations, on-site bicycle facilities, bicycle safety information and the shower facility
for the commercial tenants of the Project.
C. Facilities available for carpoolers,
vanpoolers, bicyclists, transit riders and pedestrians at the site, including locations of EV
charging stations, and car share and bike share locations. Walking maps and information about
local services, restaurants, movie theaters and recreational activities within walking distance of
the Project shall also be made available.
Such transportation information shall be provided on-site, regardless of whether also provided on
a website.
(ii) Bicycle Amenities. A bicycle tool and repair stand
shall be provided on-site for employees and residents as shown on the Project Plans.
(iii) Carshare Parking Space. Developer shall offer a
minimum of one (1) parking space free of charge to a carsharing service, if such a service is
available from a third party provider on terms mutually and reasonably acceptable to such third
party provider and the Developer (including reasonable indemnification and insurance from the
14
car share provider). Any car share service operating at the Project will be available to customers
of the particular car share provider. Required parking spaces may be used for carshare vehicles.
The carshare parking spaces shall be located on the P 1 level, as identified on the Project Plans.
2) Measures Applicable to Proiecfs Commercial Component
Only.:
(i) Employee Secure Bicycle Storage. Developer shall
provide secure bicycle parking for commercial employees as shown on the Project Plans but no
less than one (1) space per 1,500 sq.ft. of floor area with a minimum of four (4) long-term spaces
to be provided. For the purpose of this Section, secure bicycle parking shall mean an enclosed
bicycle locker; a fenced, covered, locked or guarded bicycle storage area with bike racks within;
or a rack or stand inside a building that is within view of an attendant or security guard or visible
from employee work areas. At least one electrical outlet shall be available in the longterm
bicycle parking area for the use of electrical assisted bicycle charging. Prior to ARB approval,
the location and type of secure bicycle storage shall be submitted for review and approval by the
City. If the secure bicycle storage is not secure individual bicycle lockers, commercial employee
secure bicycle storage shall be provided in an area separate from the secure bicycle storage for
residents.
(ii) Employee Showers and Locker Facilities.
Developer shall provide one (1) unisex shower and lockers as shown on the Project Plans but no
less than one (1) clothes locker per seventy-five percent (75%) of the actually provided long-
term secure employee bicycle parking for employees of commercial uses on site who bicycle or
use another active means, powered by human propulsion, of getting to work or who exercise
during the work day. Lockers shall be distributed with priority given to those who utilize active
commutes.
(iii) Short -Term Bicycle Parking. Developer shall
provide bicycle parking for short-term public use as shown on the Project Plans but no less than
one (1) space per 1,000 square feet of floor area with a minimum of four (4) spaces to be
provided. No more than 50% of the short-term bicycle parking may be provided in a vertical or
hanging rack. Prior to ARB approval, the location and type of bike racks to be provided shall be
submitted for review and approval by the City. The short-term bicycle parking shall meet the
following standard:
For each bicycle parking space required a stationary, securely anchored object shall be
provided to which a bicycle frame and one wheel can be secured with a high -security U-
shaped shackle lock if both wheels are left on the bicycle. One such object may serve
multiple bicycle parking spaces.
3) Measures Applicable to Project's Residential Component
(i) Convenient and Secure Bicycle Storage for
Residents. Developer shall provide a convenient and secure bicycle parking area for residents of
the Project in the Subterranean Space as shown on the Project Plans but no less than one (1)
secure long-term bicycle space per residential bedroom and/or studio. For the purposes of this
15
Section, secure bicycle parking shall mean an enclosed bicycle locker; a fenced, covered, locked
or guarded bicycle storage area with bike racks within; or a rack or stand inside a building that is
within view of an attendant or security guard or visible from employee work areas. At least one
electrical outlet shall be available in the long-term bicycle parking area for the use of electrical
assisted bicycle charging. Prior to ARB approval, the location and type of secure bicycle storage
shall be submitted for review and approval by the City. The residential secure bicycle storage
shall be provided in an area separate from the secure bicycle storage for commercial employees.
(ii) Short -Term Public Bicycle Parking. Developer
shall provide bicycle parking for short-term public use as shown on the Project Plans but no less
than 10% of the long-term spaces required by Section 2.7.7(d)(3)(i) with a minimum of two (2)
spaces. No more than 50% of the short-term bicycle parking may be provided in a vertical or
hanging rack. Prior to ARB approval, the location and type of bike racks to be provided shall be
submitted for review and approval by the City. The short-term bicycle parking spaces shall meet
the following standard:
® For each bicycle parking space required a stationary, securely anchored object shall be
provided to which a bicycle frame and one wheel can be secured with a high -security U-
shaped shackle lock if both wheels are left on the bicycle. One such object may serve
multiple bicycle parking spaces.
(e) Programmatic Elements.
1) Measures Applicable to the Entire Project
(i) Parking Pricing. Parking pricing may be
established at the discretion of the Developer but shall be noncompetitive with the price for
comparable transit fares. All parking spaces shall be priced at an hourly or daily rate as follows:
A. Onsite employees or residents (Reserved
Parking): A minimum daily rate of $8 shall
be charged, with the minimum hourly rate
not more than 1/8"' of the daily rate.
B. Shared Parking (i.e. customers, visitors, and
employees who choose not to obtain a
reserved parking space): A minimum daily
and hourly rate of at least 150% more than
the rate charged to on-site employees and
residents for reserved parking.
If parking spaces are leased on a monthly basis, the monthly rate shall not be less than twenty
(20) times the minimum daily rate. The rate charged to local employees may vary significantly
from those of park-and-ride transit users in order to discourage AM and PM peak period
commute park and ride transit use. A variable parking rate for off-peak hours may also be
introduced. The City shall ensure compliance with this provision as part of the annual
compliance report required in Article 10 of this Agreement.
(ii) Marketing. Developer shall promote ridesharing
quarterly_through newsletters or other communications to tenants, both residential and
commercial. Furthermore, Developer shall hold at least one rideshare event annually for
residential tenants and commercial employees of the Project, which may be provided in
conjunction with the contemplated TMA.
(iii) Project Transportation Coordinator. Developer
shall designate a Project Transportation Coordinator (the "PTC") to manage all aspects of the
TDM Plan and participate in City -sponsored workshops and information roundtables. The PTC
shall assist the commercial and residential tenants which shall include new employee orientation
and distribution/explanation of the transportation welcome packages for residents. The PTC
shall be responsible for making available information materials on options for alternative
transportation modes and opportunities, particularly programs that involve commuter subsidies
such as parking cash out and vanpool subsidies. In addition, transit fare media and day/month
passes will be made available through the PTC to employees, visitors, and residents during
typical business hours, In the event that the PTC is changed, Developers shall provide written
notification to the City of the contact information for the new PTC for the Project within 15 days
of such change. Transportation Coordinator services may be provided through the TMA
contemplated in Section 2.7.7(D below.
2) Measures Applicable to Project's Commercial Component
Only:
(i) Unbundled Parking. Developer shall not require
tenants occupying commercial space in the Project to lease parking. The cost of any parking
leased by such tenants shall be a separate line item in the lease and priced in accordance with
Section 2.7.7(e)(1)(i). Developer may, subject to the Planning Director's approval, reconfigure
the parking spaces and operations from time -to -time in order to facilitate unbundling of parking.
Developer shall require in all tenant leases it executes as landlord that each tenant charge its
employees for parking and that all subleases contain this same provision. Tenants have the right
of first refusal to parking spaces built for their unit.
Remaining commercial unbundled parking spaces that area not leased or sold to on-site users
may be leased to other on-site users or to off-site residential or commercial users on a month-to-
month basis. New leaseholders shall have the opportunity to lease or purchase parking spaces
built for their unit or use upon occupancy of the commercial or residential use.
(ii) AVR Target. For employees of the commercial
tenants, Developer shall achieve an average vehicle ridership ("AVR") of 2.2 within two years of
Certificate of Occupancy. The 2.2 AVR shall continue to be achieved and maintained thereafter.
(iii) Remedy for Exceeding AVR Target. If the AVR
Target has not been achieved then the Developer shall pay the City the Compliance Penalty
required by Section 2.7.7(h) of this Agreement and submit modifications to the TDM Plan that
are designed to achieve the AVR Target by the date of the next annual report to the City.
Developer shall submit modifications to the TDM Plan to the City for approval within 60 days of
the submission of the annual report showing non-compliance, with such approval not be
unreasonably withheld, conditioned or delayed. In addition, during this 60 -day period, the City
17
may recommend modifications to the TDM Plan. Any of the modifications to the TDM Plan
proposed by Developer and approved by the City (or proposed by the City and agreed to by the
Developer) to help the Project achieve the AVR Target shall be implemented within 30 days
upon approval of the TDM Plan modifications.
(iv) Failure to Achieve AVR Not a Default. Failure to
achieve the AVR performance standard as provided in this Agreement will not constitute a
Default within the meaning of the Agreement so long as Developer is working cooperatively
with the City and taking all feasible steps to achieve compliance as required by this Agreement.
The term "feasible" shall mean capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, and technological
factors.
(v) AVR Calculation. The procedure for calculating
AVR at a worksite shall be the more restrictive of either the following or as required by Chapter
9.53 of the Santa Monica Municipal Code or successor thereto:
A. The AVR calculation shall be based on data
obtained from an employee survey as defined in SMMC Section 9.53.060(13)(2)(b)(viii), or any
successor thereto.
B. AVR shall be calculated by dividing the
number of employees who report to or leave the worksite by the number of vehicles arriving at
or leaving the worksite during the peak periods. If an employee uses more than one commute
mode per trip, the mode that is used for the majority of the trip shall be the mode that is used in
calculating the number of vehicles. All employees who report to or leave the worksite that are
not accounted for by the employee survey shall be calculated as one employee per vehicle
arriving at or leaving the worksite. Employees walking, bicycling, telecommuting, using public
transit, or on their day off under a recognized compressed work week schedule shall be counted
as arriving at or leaving the worksite without vehicles. Motorcycles shall be counted as vehicles.
AVR survey reporting errors resulting from missing or incorrect information must be calculated
as one employee per vehicle arriving at the worksite. Reporting errors that do not include the
time when an employee arrives at or leaves the worksite must be assumed to occur in the peak
period.
C. A child or student may be calculated for the
AVR as an additional passenger in the carpool/vanpool if the child or student travels in the
car/van to a worksite or school/childcare facility for the majority (at least fifty one percent) of the
total commute.
D. If two or more employees from different
employers commute in the same vehicle, each employer must account for a proportional share of
the vehicle consistent with the number of employees that employer has in the vehicle.
E. Any employee dropped off at a worksite
shall count as arriving in a carpool only if the driver of the carpool is continuing on to the
driver's worksite.
IF]
F. Any employee telecommuting at home, off-
site,
ffsite, or at a telecommuting center for a full work day, eliminating the trip to work or reducing the
total distance by at least fifty-one percent shall be calculated as if the employee arrived at the
worksite in no vehicle.
G. Zero emission vehicles (electric vehicles)
shall be counted as a vehicle when arriving at the worksite.
H. Employers must keep detailed records of the
documents which verify the average vehicle ridership calculation for a period of three years from
plan approval date. Records which verify strategies in the EIRP have been marketed and
implemented shall be kept for a period of at least three years from plan approval date. Approved
ETRPs must be kept at the worksite for a period of at least five years from plan approval date.
For employers who implement their plans using a centralized rideshare service center, records
and documents may be kept at a centralized location.
(vi) Parking Cash Out. Developer shall require all
commercial tenants to meet the requirements of California Health and Safety Code Section
43845 (Parking Cash Out Program) by offering a parking cash -out if an employee eligible under
such Section chooses not to accept a subsidized parking space; however, in no case shall such
parking cash -out be less than the monthly cost of the subsidy to employees of a parking pass.
Eligible employees may choose to have a portion of their parking cash -out applied towards the
purchase of a monthly transit pass at their discretion and receive the remainder in cash. Where
employees are also residents of the Project, only the higher of the parking cash-out/transportation
allowance identified in this Section 2.7.7(e)(2)(vi) and Section 2.7.7(c)(2)(vii), as applicable, or
the Transportation Allowance identified in Section 2.7.7(e)(3)(iii) shall be offered to the
resident/employee.
Developer shall write the requirements of the Parking Cash Out into any leases executed with
commercial tenants of the Project. Commercial tenants of the project which would otherwise not
be subject to California Health and Safety Code Section 43485 shall have ultimate responsibility
for adherence to the Parking Cash Out requirements. Failure of such tenant to comply with the
Parking Cash Out requirement shall not constitute a Default by Developer under this Agreement
so long as such tenant's lease requires such compliance and Developer is actively pursuing all
necessary enforcement actions to bring such tenant into compliance with this lease provision.
(vii) Transportation Allowance. Developer must provide
a transportation allowance equal to at least 100 percent of the current cost of a monthly regional
transit pass of employee's choice (e.g., Big Blue Bus 30 -Day Pass, Metro EZ Pass, Metro TAP
Pass or equivalent). An employee accepting the Transportation Allowance shall be required to
execute a contract agreeing that said employee will not utilize a single occupancy vehicle for the
majority (at least 51%) of their daily commute distance more than five business days per month.
The contract shall also specify the employee's alternative commute mode (e.g., transit, bike,
walk). The employee must demonstrate compliance as reasonably required by the Developer.
Where employees are also residents of the Project, only the higher of the parking cash-
out/transportation allowance identified in Section 2.7.7(e)(2)(vi) and this Section 2.7.7(e)(2)(vii),
19
as applicable, or the Transportation Allowance identified in Section 2.7.7(e)(3)(iii) shall be
offered to the resident/employee.
Developer shall write the requirements of the Transportation Allowance into any leases executed
with commercial tenants of the Project. Failure of such tenant to comply with the Transportation
Allowance requirements shall not constitute a Default by Developer under this Agreement so
long as such tenant's lease requires such compliance and Developer is actively pursuing all
necessary enforcement actions to bring such tenant into compliance with this lease provision. If
tenant fails to adhere to the requirements of the Transportation Allowance, Developer shall be
required to do so.
(viii) Employee Flex -Time Schedule. The Developer
shall require in all commercial leases it executes as landlord for space within the Project that,
when commercially feasible, employers shall permit employees within the Project to adjust their
work hours in order to accommodate public transit schedules, rideshare arrangements, or off-
peak
ffpeak hour commuting.
(ix) Employee Guaranteed Return Trip, The Developer
shall require in all leases it executes as landlord for space within the Project that tenants provide
employees who rideshare or bicycle to work (this includes transit riders, vanpoolers, walkers,
carpool), with a return trip to their point of commute origin at no additional cost to the employee,
when a personal emergency situation or unplanned overtime requires it. Developer, or
Developer's successor in interest, shall be responsible for ensuring this obligation is satisfied.
The employee guaranteed return trip may be provided through the TMA contemplated in this
Agreement.
(x) On-site Shared Bikes. Developer shall provide free
on-site shared bicycles intended for employee use during the work day (e.g. Bike@Work
Program). This shall be optional if citywide bikeshare is available within a 2 -block radius of the
project site.
(xi) Free Bike Valet. Developer shall provide bike
valet, free of charge, during all automobile valet operating hours. This requirement shall only
apply if automobile valet is provided by a commercial tenant.
(xii) Employee Incentives Living Close to Project.
Developer shall provide incentives for employees that live within one-half mile of the Project.
Details of the incentives shall be specified in the TDM Plan..
(xiii) Commuter Matching Services. Developer shall
provide commuter matching services for all employees on an annual basis and for all new
employees upon hiring.
(xiv) Customer and Visitor Incentives. Developer shall
provide customer and visitor incentives for uses with significant numbers of customers and
visitors such as retail, food service, hospitality, and medical office. Such incentives shall include
the following
A. Customer incentive program
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modes
B. Public directions prioritizing rideshare
C. Special event rideshare services
D. Shared ride service
3) Measures Applicable to Project's Residential Component
Only;
(i) Unbundled Parking. Developer shall not require
residents of the rental housing units to lease parking spaces. Any parking leased by such tenants
shall be a separate line item on the lease and priced in accordance with Section 2.7.7(e)(1)(i).
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.
Residential units of 3 or more bedrooms shall have one parking space bundled with the lease for
the Life of the Project. For affordable units, the tenant may choose to either receive one parking
space, which shall be included in the unit's affordable rent level, or receive a rent discount
equivalent to half the amount charge for monthly lease of a parking space, in exchange for not
receiving a parking space. Tenants of affordable units shall not be permitted to sublease their
parking spaces.
Tenants have the right of first refusal to parking spaces built for their unit or use. Remaining
residential unbundled parking spaces that are not leased or sold to on-site users built for their unit
or use may be leased to other on-site users or to off-site residential users on a month-to-month
basis.
(ii) Transportation Welcome Package for Residents.
The Developer shall provide new residents of the rental housing units of the Project with a
Transportation Welcome Package (TWP). One TWP shall be provided to each unit upon the
commencement of a new tenancy. The TWP will inform residents about the physical and
programmatic elements of the TDM Plan and explain how to access the features of the Plan.
(iii) Resident Transportation Allowance. Developer
shall offer a monthly transportation allowance equal to at least 100 percent of the current cost of
a monthly regional transit pass of the resident's choice (e.g., Big Blue Bus 30 -Day Pass, Metro
EZ Pass, Metro TAP Pass or equivalent). The Resident Transportation Allowance shall be
offered to all residents listed on a lease and their immediate family living at the same address.
Immediate family includes partner, spouse, children, parents, grandparents, siblings, father in
law, mother in law, son in law, daughter in law, aunt, uncle, niece, nephew, sister in law, and
brother in law. A resident accepting the Transportation Allowance shall elect not to lease
parking spaces at the Project and be required to execute a contract agreeing that said resident
does not own or long term lease an automobile and will not own or long term lease an
automobile for so long as they are in receipt of the Transportation Allowance. The contract shall
also specify the resident's non -single occupancy vehicle commute mode (e.g. transit, bike, walk).
Children who reside full time at the Building shall be eligible for the Transportation Allowance
if the parent that is primarily responsible for transporting the child is also eligible for the
Transportation Allowance. The child's parent or guardian shall sign an affidavit stating that the
21
child permanently resides at the building on a full time basis, and the child is primarily
transported by a parent or guardian on the lease that is eligible for the Transportation Allowance.
(iv) On -Site Shared Bikes. Developer shall provide free
on-site shared bicycles intended for resident and guest use. This shall be optional if citywide
bikeshare is available within a 2 -block radius of the project site.
(f) Transportation Management Association. Developer shall be
required to actively participate in the establishment of a Transportation Management Association
("TMA") that may be defined by the City, including payment of annual dues at a level so that
trip reduction services are provided as set forth by the TMA, attendance at organizational
meetings, providing travel and parking demand data to the TMA, and making available
information to project tenants relative to the services provided by the TMA. -Developer shall
require in all leases it executes as landlord for space within the Project that building tenants be
required to participate in the TMA and that all subleases contain this same provision. At the
discretion of Developer, to be approved by the Planning Director through a Minor Modification,
some or all of the services required by this Section 2.7.7 may be provided through the TMA.
(g) Changes to TDMPlan. Subject to approval by the 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. If the annual monitoring report shows that the AVR has not been achieved for
the Project then Developer shall submit modifications to the TDM Plan that are likely to achieve
the AVR by the date of the next annual report. Such modifications to the TDM Plan shall be
submitted to the Planning Director for approval within 60 days of submission of the annual
report, with such approval not be unreasonably withheld, conditioned, or delayed. In addition,
during this 60 -day period, the Planning Director may recommend modifications to the TDM
Plan. Any of the modifications to the TDM Plan proposed by Developer and approved by the
Planning Director (or proposed by the Planning Department and agreed to by the Developer) to
help the Project achieve the AVR shall be implemented within 30 days upon approval of the
TDM Plan modifications.
(h) Compliance Penalty ifAVR Target is Not Achieved. If the Project
does not achieve the AVR Target, Developer shall pay the City a penalty ("Compliance
Penalty") to off -set the AVR Target deficiency in order to achieve the AVR Target/work day.
The penalty shall be paid at the time that the TDM Annual Status Report is submitted to the City
and shall be based on the following calculation:
Step 1:
Total Number of Employee Trips Per Week A Total !Number of Vehicle Trips
Actual AVR Produced by Project Per Week
Step 2:
Total Number of Employee Trips Per Week Total Number of Vehicle Trips Allowed
AVR Target to Achieve Target AVR Per Week
Step 3:
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Total Number of Total Number of _ Vehicle Trip Reductian Necessary % !i— Daily Vehicle Reduction
Produced Trips a Allowable Trips to Achieve AVR Target f i Needed to Achieve AVR Target
Step 4:
Compliance Penalty = Compliance Penalty Base x Daily Vehicle Reduction Needed
to Achieve AVR 'Target x work days per year (based on 22 work days per month)
The Compliance Penalty Base shall be five dollars ($5.00) plus the average daily parking rate
($5.00 + average daily parking rate). The average daily parking rate shall be calculated by
dividing the total parking revenue collected from on-site users during the employee SIR -Vey
period by the total number of vehicles entering and exiting the garage. The Compliance Penalty
shall be imposed each year that the project does not achieve the AVR Target.
2.7.8 Transportation Management Association Contribution: Prior to issuance
of a building permit for the Project, Developer shall make a contribution of twenty thousand
dollars ($20,000) to the City for Transportation Management Association programs. The City
shall deposit such monies into a separate restricted account to be used exclusively for TMA
programs.
2.7.9 Big Blue Bus Contribution: Prior to issuance of a building permit for the
Project, Developer shall pay forty thousand dollars ($40,000.00) to the City for Big Blue Bus
transit improvements in the Downtown.
2.7. 10 Enhanced Transportation Impact Fee: Prior to issuance of a building
permit for the Project, Developer shall pay the City a Transportation Impact Fee of ninety
thousand dollars ($90,000.00). The City shall deposit such monies into a separate restricted
account to be used exclusively for transportation programs.
2.7.11 Enhanced Parks and Recreation Fee: Prior to issuance of a building
permit for the Project, Developer shall pay the City a Parks and Recreation Fee of two hundred
and eighty thousand dollars ($280,000.00) for public park improvements and programs. The
City shall deposit such monies into a separate restricted account to be used exclusively for parks
and recreation programs.
2.7.12 Early Childhood Initiatives Contribution. Prior to issuance of a building
permit for the Project, Developer shall make a childcare contribution to the City in the amount of
one hundred thousand dollars ($100,000.00). This contribution will support early childhood
initiatives including but not limited to infant, toddler and pre-school tuition subsidies; family
support and parent engagement strategies; home visitations programs; facility and playground
improvements; and kindergarten readiness models. The City shall deposit such monies into a
separate restricted account to be used exclusively for the early childhood initiatives as described
above through guidelines to be established by the City.
2.7.13 Historic Preservation. Prior to issuance of a building permit for the
Project, Developer shall pay to the City the sum of fifty thousand dollars ($50,000.00) to be used
for historic preservation. The City shall deposit such monies into a separate restricted account to
be used exclusively for historic preservation programs in the City. These monies shall be applied
for and distributed in accordance with a process established by the City, whereby those entities
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that are exclusively devoted to historic preservation may make an application to receive
distribution of some or all of the funds.
2.7.14 Water Conservation Program Contribution. Prior to issuance of a building
permit for the Project, Developer shall pay to the City the sum of three hundred thousand dollars
($300,000) to be used for water conservation programs. The City shall deposit such monies into
a separate restricted account to be used exclusively for water conservation programs.
2.7.15 Electric Vehicle Parking: 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 2081240 V 40 amp, grounded AC outlets of at
least ten percent (10%) of the total 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
some or all of the parking 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 the public and Project tenants 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, 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:
(a) 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
(b) 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).
2.7.16 Local Hiring Program. Developer shall implement and monitor the Local
Hiring Program as set forth in Exhibits "F -V and "F-211. At least sixty (60) days before
recruitment is opened up to general circulation for initial, Developer or the operator of the
commercial space shall prepare and submit to the City's Planning Director for review and
approval a written local hiring program consistent with the obligations under this Agreement.
The approved local hiring plan may be amended from time to time thereafter, subject to the
Planning Director's review and approval.
2.7.17 Shared Parking Availability for Non -Project Users. Subject to the
provision of sufficient on-site parking for the Project, Developer will make any unused on-site
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commercial parking available for monthly lease at market rates in accordance with Section
2.7.7(e)(1)(i) of this Agreement, to third patties in the surrounding area in need of parking. In
order to facilitate annual compliance monitoring of shared parking, Developer shall install
ticketing equipment for on-site parking that is able to discern between on-site and off-site users.
2.7.18 Local Preference Marketing Plan. Prior to issuance of a Certificate of
Occupancy, the Developer shall prepare and implement a marketing and outreach program for
the rental of units for the Project, except for the 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,
(iv) employees of businesses located within an one- half mile radius of the Property, and (v)
employees of businesses outside the one-half mile radius but within the City of Santa Monica.
Developer shall market the Rental Housing Units, except for the Affordable Units, exclusively to
the foregoing employee categories for a period of 90 days when the units are initially offered for
rent. For purposes of this Section 2.7.18, 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 The number of parking spaces provided in the Project shall be 105,
including up to 40 percent compact parking spaces, unless modified in accordance with Section
2.4.2 and/or 2.4.3 of this Agreement. This Agreement and the Project Plans set forth the
exclusive off-street parking requirements for the Project and supersede all other minimum space
parking requirements under the Existing Regulations, including without limitation Chapter 9.28
of the Zoning Ordinance.
2.9 Design.
(a) Setbacks. Developer shall maintain the setbacks for the Project as set shown
on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance
and the setbacks established by this Agreement, then the setbacks required by this Agreement
shall prevail.
(b) Building Height. The maximum height of the building shall be 84 -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.
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(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 9.61 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 fees and taxes, and the City is
modifying development standards otherwise applicable to the Project such as increasing Floor
Area Ratio and Building Height, reducing parking standards, and other property development
standards. In exchange for such forms of assistance from the City, which constitute direct
financial contribution 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 fourteen (14) Affordable Units on site for occupancy by income qualified
households. The parties agree and acknowledge that this is a contract providing forms of
assistance to the Developer within the meaning of Civil Code Section 1954.52(b) and Chapter
4.3 of the State Planning and Zoning Laws, Government Code Section 65915 et seq.
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 "G" 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.
W
For purposes of clarity, if Developer has not been issued a building permit for the Project by the
Outside Building Permit Issuance Date, the City shall not be required to pursue its remedies
under Section 11.4 of this Agreement, and this Agreement shall, instead, automatically
terminate. "Outside Building Permit Issuance Date" means the date that is the last day of the
thirty sixth (36`h) full calendar month after the Effective Date; provided that the Outside Building
Permit Issuance Date may be extended by applicable Excusable Delays and otherwise in
accordance with the remainder of this paragraph. If the approval by the ARB of the Project
design does not occur within six (6) 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
after the last day of the twenty-fourth (24th) full calendar month after the Effective Date (the
"Extension Notice Date"), Developer may deliver written notice to the Planning Director,
requesting an extension of the Outside Building Permit Issuance Date for an additional twelve
(12) months. The Outside Building Permit Issuance Date may be administratively extended not
more than one (1) time for an additional twelve (12) month extension. The Planning Director
may grant such extension if Developer can demonstrate substantial progress has been made
towards obtaining a building permit and show reasonable cause why Developer will not be able
to obtain the building permit for the Project by the initial Outside Building Permit Issuance Date
and can demonstrate that: (a) the condition of the Property will not adversely affect public health
or safety and (b) the continued delay will not create any unreasonable visual or physical
detriment to the neighborhood.
3.4 Construction Period. Construction of the Project shall be subject to the provisions
of SMMC Section 8.08.070.
3.5 Damage or Destruction. If the Project, or any part thereof, is damaged or
destroyed during the term of this Agreement, Developer shall be entitled to reconstruct the
Project in accordance with this Agreement if: (a) Developer obtains a building permit for this
reconstruction prior to the expiration of this Agreement and (b) the Project is found to be
consistent with the City's General Plan in effect at the time of obtaining the building permit.
ARTICLE 4
PROJECT FEES, EXACTIONS,
AND CONDITIONS
4.1 Fees, Exactions, and Conditions. Except as expressly set forth in Section 2.7
(relating to Community Benefits), Section 4.2 (relating to modifications), and Section 5.2
(relating to Subsequent Code Changes) below, the City shall charge and impose only those fees,
exactions, conditions, and standards of construction set forth in this Agreement, including
Exhibits "C" "D" and "I" attached hereto, and no others. If any of the conditions set forth on
Exhibit "D" is satisfied by others, Developer shall be deemed to have satisfied such 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.
27
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 I'D".
4.3.2 Survival of Conditions of Approval. If Developer proceeds with the
construction of the Project, the obligations and requirements imposed by the conditions of
approval set forth in the attached Exhibits "D," 'IF -I," and 66_2999 shall survive the expiration
of the Tenn 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 Residential Building 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 building and improvements or any exactions therefore, except
as amended by this Agreement; and (v) the development standards and procedures in Article 2 of
this Agreement.
(b) "Subsequent Code Changes" collectively means all of the following
which are adopted or approved subsequent to the Effective Date, whether such adoption or
approval is by the City Council, any department, division, office, board, commission or other
agency of the City, by the people of the City through charter amendment, referendum, initiative
or other ballot measure, or by any other method or procedure: (i) any amendments, revisions,
additions or deletions to the Existing Regulations; or (ii) new codes, ordinances, rules,
regulations, standards, specifications and official policies of the City governing or affecting the
grading, design, development, construction, occupancy or use of building 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.
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5.1.2 Existing Regulations Govern the Project. Except as provided in Section
5.2, development of the Building and improvements that will comprise the Project, including
without limitation, the development standards for the demolition, grading, design, development,
construction, occupancy or use of such Building and improvements, and any exactions therefor,
shall be governed by the Existing Regulations. The City agrees that this Agreement is consistent
with the General Plan, including the LUCE, as more fully described in the Recitals. Any
provisions of the Existing Regulations inconsistent with the provisions of this Agreement, to the
extent of such inconsistencies and not further, are hereby deemed modified to that extent
necessary to effectuate the provisions of this Agreement. The Project shall be exempt from: (a)
all Discretionary Approvals or review by the City or any agency or body thereof, other than the
matters of architectural review by the ARB as specified in Section 6.1 and review of
modifications to the Project as expressly set forth in Sections 2.4.2, 2.4.3, 2.5.3, and 2.5.4; (b)
the application of any subsequent local development or building moratoria, development or
building rationing systems or other restrictions on development which would adversely affect the
rate, timing, or phasing of construction of the Project, and (c) Subsequent Code Changes which
are inconsistent with this Agreement.
5.2 Permitted Subsequent Code Changes.
5.2.1 Applicable Subsequent Code Changes. Notwithstanding the terms of
Section 5, 1, this Agreement shall not prevent the City from applying to the Project the following
Subsequent Code Changes set forth below in this Section 5.2.1.
(a) Processing fees and charges imposed by the City to cover the
estimated actual costs to City of processing applications for development approvals including:
(i) all application, permit, and processing fees incurred for the processing of this Agreement, any
administrative approval of a Minor Modification, or any amendment of this Agreement in
connection with a Major Modification; (ii) all building plan check and building inspection fees
for work on the Property in effect at the time an application for a grading permit or building
permit is applied for; and (iii) the public works plan check fee and public works inspection fee
for public improvements constructed and installed by Developer and (iv) fees for monitoring
compliance with any development approvals, or any environmental impact mitigation measures;
provided that such fees and charges are uniformly imposed by the City at similar stages of
project development on all similar applications and for all similar monitoring.
(b) General or special taxes, including, but not limited to, property taxes,
sales taxes, parcel taxes, transient occupancy taxes, business taxes, which may be applied to the
Property or to businesses occupying the Property; provided that (i) the tax is of general
applicability City-wide and does not burden the Property disproportionately to other similar
developments within the City; and (ii) the tax is not a levy, assessment, fee or tax imposed for
the purpose of funding public or private improvements on other property located within the
Downtown District (as defined in the City's General Plan as of the Effective Date).
(c) Procedural regulations relating to hearing bodies, petitions,
applications, notices, documentation of findings, records, manner in which hearings are
conducted, reports, recommendations, initiation of appeals, and any other matters of procedure;
provided such regulations are uniformly imposed by the City on all matters, do not result in any
29
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(g), regulations which
impair Developer's rights or approvals include, but are not limited to, regulations which (i)
materially increase the cost of the Project (except as provided in Section 5.2.1(a), (b), and (d)
above), or (ii) which would materially delay development of the Project or that would cause a
material change in the uses of the Project as provided in this Agreement.
5.2.2 New Rules and Regulations. This Agreement shall not be construed to
prevent the City from applying new rules, regulations and policies in those circumstances
specified in Government Code Section 65566.
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
30
and conditions of this Agreement and the Existing Regulations, the terms and conditions of this
Agreement shall control.
5.5 Timing of Development. The California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal.3d 465 {1984), that failure of the parties in that
case to provide for the timing of development resulted in a later adopted initiative restricting the
timing of development to prevail over the parties' agreement. It is the intent of Developer and
the City to cure that deficiency by expressly acknowledging and providing that any Subsequent
Code Change that purports to limit over time the rate or timing of development or to alter the
sequencing of development phases (whether adopted or imposed by the City Council or through
the initiative or referendum process) shall not apply to the Property or the Project and shall not
prevail over this Agreement. In particular, but without limiting any of the foregoing, no
numerical restriction shall be placed by the City on the amount of total square feet or the number
of buildings, structures, residential units that can be built each year on the Property except as
expressly provided in this Agreement.
ARTICLE 6
ARCHITECTURAL REVIEW BOARD
6.1 Architectural Review Board Approval. The Project shall be subject to review and
approval or conditional approval by the ARB in accordance with design review procedures in
effect under the Existing Regulations. Consistent with Existing Regulations, the ARB cannot
require modifications to the building design which negates the fundamental development
standards established by this Agreement. For example, the ARB cannot require reduction in the
overall height of the building, reduction in the number of stories in the building, reduction in
density (i.e., number of dwelling units), or reduction in floor area greater than five percent (5%),
in the aggregate for the Project. Decisions of the ARB are appealable to the Planning
Commission in accordance with the Existing Regulations.
6.2 Expiration of ARBA roval. Notwithstanding any provisions of the Existing
Regulations, no ARB approval granted with respect to the Project shall expire prior to expiration
of the Outside Building Permit Issuance Date, including any extensions thereof.
ARTICLE 7
CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terms shall have the
meanings set forth below:
7. 1.1 "Technical City Permits" means any Ministerial Approvals, consents or
permits from the City or any office, board, commission, department, division or agency of the
City, which are necessary for the actual construction of the Project or 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
(c) temporary and final certificates of occupancy.
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7.1.2 "Technical. Permit Applications" means any applications required to be
filed by Developer for any Technical City Permits.
7.2 Diligent Action by City.
7.2.1 Upon satisfaction of the conditions set forth in Section 7.3, the City shall
accept the Technical Permit Applications filed by Developer with the City and shall diligently
proceed to process such Technical Permit Applications to completion.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the City shall
diligently issue the Technical City Permits which are the subject of the Technical Permit
Applications.
7.3 Conditions for Diligent Action by the City.
7.3.1 Acceptance and Processing of Technical Permit Applications. The
obligation of the City to accept and diligently process the Technical Permit Applications which
are filed by Developer, and then issue the Technical City Permits, is subject to the satisfaction of
the following conditions:
(a) Developer shall have completed and filed all Technical Permit
Applications which are required under the administrative procedures and policies of the City
which are in effect on the date when the Technical Permit Application is filed; provided that such
procedures and policies are uniformly in force and effect throughout the City;
(b) Developer shall have paid all processing and permit fees established
by the City in connection with the filing and processing of any Technical Permit Application
which are in effect on the date when the Technical Permit Application is filed; provided that such
fees are uniformly in force and effect throughout the City; and
(c) If required for the particular Technical Permit Application, Developer
shall have obtained the approval of the ARB referred to in Section 5.1.1 above.
7.3.2 Issuance of a Technical City Permit. The obligation of the City to issue a
Technical City Permit which is the subject of a Technical Permit Application filed by Developer
is subject to the satisfaction of the following conditions (and only such conditions and no others):
(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;
(e) The proposed Building conforms to the development standards for
such Buildings established in this Agreement. In the event that a proposed Building is not in
conformance with the development standards, Developer shall have the right to seek any relief
from such standards under the procedures then available in the City; and
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(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 ("blew 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 Section 3.4, the lapse or expiration of
a Technical City Permit shall not preclude or impair Developer from subsequently filing another
Technical Permit Application for the same matter during the Term of this Agreement, which
shall be processed by the City in accordance with the provisions of this ARTICLE 7.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains building
permits for the Project and, at any time after the Outside Building Permit Issuance Date, such
building permits expire or are revoked pursuant to the applicable terms of the SMMC (as the
same may be amended from time to time), then Developer may not subsequently apply for new
building permits for the Project without first obtaining the prior written consent of the Planning
Director, which may be granted or withheld in the Planning Director's sole discretion.
7.5 Additional Accessibili1y of Affordable Units. Ten percent (10%) of the
Affordable Units in the Project shall provide mobility features complying with 2013 California
Building Code Chapter 11B, Sections 11B-809.2 through I IB -809.4, or any successor thereto,
and shall be on an accessible route as required by Section l IB -206, or any successor thereto.
Four percent (4%) of the Affordable Units in the Project shall provide communication features
complying with 2013 California Building Code Chapter 11B, Section 11B-809.5, or any
successor thereto. Any fractional Affordable Unit that results from these formulas shall be
provided as a whole Affordable Unit (i.e. any resulting fraction shall be rounded up to the next
largest integer). Prior to issuance of a building permit, Developer shall inform local disability
advocacy organizations in writing of the availability of the Affordable Units, the mechanism for
applying to be placed on the City's Affordable Housing waiting list administered by the City's
Housing Division, and whether the City's Affordable Housing waiting list is currently accepting
applications.
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ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. Subject to the notice
and hearing requirements of the applicable Development Agreement Statutes, this Agreement
may be modified or amended from time to time only with the written consent of Developer and
the City or their successors and assigns in accordance with the provisions of the SMMC and
Section 65868 of the California Government Code.
ARTICLE 9
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 Tenn.
9.2.1 Term of Agreement. The term of this Agreement shall commence on the
Effective Date and shall continue for ten (10) years thereafter (the "Term"), unless the Term is
otherwise terminated pursuant to Section 11. 4, after the satisfaction of all applicable public
hearing and related procedural requirements or pursuant to Section 3.3.
9.2.2 Termination Certificate. Upon termination of this Agreement, the Parties
hereto shall execute an appropriate certificate of termination in recordable form (a "Termination
Certificate"), which shall be recorded in the official records of Los Angeles County.
9.2.3 Effect of Termination. Except as expressly provided herein (e.g., Section
4.3.2), none of the parties' respective rights and obligations under this Agreement shall survive
the Term.
ARTICLE 10
PERIODIC REVIEW OF COMPLIANCE
10.1 City Review. The City shall review compliance with this Development
Agreement once each year, on or before March 31" (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 lit of each year,
Developer shall deliver to the City a written report demonstrating that Developer has been in
good faith compliance with this Agreement during the twelve (12) month period prior to the
anniversary of the Effective Date. The written report shall be provided in the form established
by the City. For purposes of this Agreement, the phrase "good faith compliance" shall mean the
following: (a) compliance by Developer with the requirements of the Existing Regulations,
except as otherwise modified by this Agreement; and (b) compliance by Developer with the
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terms and conditions of this Agreement, subject to the existence of any specified Excusable
Delays (as defined in Section 15.8 below) which prevented or delayed the timely performance by
Developer of any of its obligations under this Agreement.
10.3 Information to be Provided to Developer. Prior to any public hearing concerning
the Periodic Review of this Agreement, the City shall deliver to Developer a copy of all staff
reports prepared in connection with a Periodic Review, written comments from the public and, to
the extent practical, all related exhibits concerning such Periodic Review. If the City delivers to
Developer a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver
to Developer a copy of all staff reports prepared in connection with such Notice of Breach, all
written comments from the public and all related exhibits concerning such Notice of Breach.
10.4 Notice of Breach,, Cure Rights. If during any Periodic Review, the City
reasonably concludes on the basis of substantial evidence that Developer has not demonstrated
that it is in good faith compliance with this Agreement, then the City may issue and deliver to
Developer a written Notice of Breach pursuant to Section 11.1 below, and Developer shall have
the opportunity to cure the default identified in the Notice of Breach during the cure periods and
in the manner provided by Section 11.2 and Section 11.3, as applicable.
10.5 Failure of Periodic Review. The City's failure to review at least annually
compliance by Developer with the terms and conditions of this Agreement shall not constitute or
be asserted by any Party as a breach by any other Party of this Agreement.
10.6 Termination of Development Agreement. If Developer fails to timely cure any
item(s) of non-compliance set forth in a Notice of Default, then the City shall have the right but
not the obligation to initiate proceedings for the purpose of terminating this Agreement pursuant
to Section 11.4 below.
10.7 City Cost Recovery. Following completion of each Periodic, Review, Developer
shall reimburse the City for its actual and reasonable costs incurred in connection with such
review after provision of an invoice by the City.
ARTICLE 11
DEFAULT
11.1 Notice and Cure.
11.1.1 Breach. If either Party fails to substantially 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 Article 12.
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11. 1.2 Monetary Breach. In the case of a monetary Breach by Developer,
Developer shall promptly commence to cure the identified Breach and shall complete the cure of
such Breach within thirty (30) business days after receipt by Developer of the Notice of Breach;
provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same
is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable
evidence of the Excusable Delay.
11.1.3 Non -Monetary Breach. In the case of a non -monetary Breach by either
Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and
shall diligently prosecute such cure to completion; provided that the defaulting Party shall
complete such cure within thirty (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 (3 0) business days after receipt by Developer of a Notice of Breach from the City and (b)
after expiration of Secured Lender's Cure Period under Section 12.1 (if a Secured Lender of
Developer has delivered a Request for Notice to the City in accordance with Section 12. 1), then
an "Event of Monetary Default" shall have occurred by Developer and the City shall have
available any right or remedy provided in this Agreement, at law or in equity. All of said
remedies shall be cumulative and not exclusive of one another, and the exercise of any one or
more of said remedies shall not constitute a waiver or election in respect to any other available
remedy.
11.3 Remedies for Non -Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from the
other Party regarding a non -monetary Breach, and the non -monetary Breach remains 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
a
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 CitX. It is acknowledged by Developer that
the City would not have entered into this Agreement if the City were to be liable in damages
under or with respect to this Agreement or the application thereof. Consequently, and except for
the payment of attorneys' fees and court costs, the City shall not be liable in damages to
Developer and Developer covenants on behalf of itself and its successors in interest not to sue for
or claim any damages:
(a) for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any right or
interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or issue
regarding the application or interpretation or effect of the provisions of this Agreement.
The City and Developer agree that the provisions of this Section 11.3.4 do not apply for damages
which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or provided under
this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any dispute,
controversy, or issue regarding the application, interpretation, or effect of the provisions of this
Agreement or the application of any City rules, regulations, or official policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be entitled to
apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the same may be
amended from time to time and shall follow the notice procedures of Chapter 1.09 and 1.10
respectively in lieu of Section 11.1 of this Agreement if these remedies are applied.
11.3.6 No Damages Against Developer. It is acknowledged by the City that
Developer would not have entered into this Agreement if Developer were to be liable in damages
in connection with any non -monetary default hereunder. Consequently, and except for the
payment of attorneys' fees and court costs, Developer shall not be liable in damages to the City
for any nonmonetary default and the City covenants on behalf of itself not to sue for or claim any
damages:
KA
(a) for any non -monetary default hereunder or;
(b) arising out of or connected with any dispute, controversy or issue
regarding the application or interpretation or effect of the provisions of this Agreement.
The City and Developer agree that the provisions of this Section 11.3.6 do not apply for damages
which:
(a) are for a monetary default; or
(b) do not arise out of or which are not connected with any dispute,
controversy or issue regarding the application, interpretation, or effect of the provisions of this
Agreement to or the application of, any City rules, regulations, or official policies.
(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.
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 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
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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 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.
ARTTCT,F, 12
MORTGAGEES
12.1 Encumbrances on the Property. This Agreement shall not prevent or limit
Developer (in its sole discretion), from encumbering the Property (in any manner) or any portion
thereof or any improvement thereon by any mortgage, deed of trust, assignment of rents or other
security device securing financing with respect to the Property (a "Mortgage"). Each mortgagee
of a mortgage or a beneficiary of a deed of trust (each, a "Secured Fender") 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
39
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 Richt of Secured Lender to Cure Default.
(a) A Secured Lender may give notice to the City, specifying the name
and address of such Secured Lender and attaching thereto a true and complete copy of the
Mortgage held by such Secured Lender, specifying the portion of the Property that is
encumbered by the Secured Lender's lien (a "Request for Notice"). If the Request for Notice
has been given, at the same time the City sends to Developer any Notice of Breach or Hearing
Notice under this Agreement, then if such Notice of Breach or Hearing Notice affects the portion
of the Property encumbered by the Secured Lender's lien, the City shall send to such Secured
Lender a copy of each such Notice of Breach and each such Hearing Notice from the City to
Developer. The copy of the Notice of Breach or the Hearing Notice sent to the Secured Lender
pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last
furnished to the City. The period within which a Secured Lender may cure a particular Event of
Monetary Default or Event of Non -Monetary Default shall not commence until the City has sent
to the Secured Lender such copy of the applicable Notice of Breach or Hearing Notice.
(b) After a Secured Lender has received a copy of such Notice of Default
or Hearing Notice, such Secured Lender shall thereafter have a period of time (in addition to any
notice and/or cure period afforded to Developer under this Agreement) equal to: (a) ten (10)
business days in the case of any Event of Monetary Default and (b) thirty (30) days in the case of
any Event of Non -Monetary Default, during which period the Secured Lender may provide a
remedy or cure of the applicable Event of Monetary Default or may provide a remedy or cure of
the applicable Event of Non -Monetary Default; provided that if the cure of the Event of Non -
Monetary Default cannot reasonably be completed within thirty days, Secured Lender may,
within such 30 -day period, commence to cure the same and thereafter diligently prosecute such
cure to completion (a "Secured Lender's Cure Period"). If Developer has caused an Event of
Monetary Default or an Event of Non -Monetary Default, then each Secured Lender shall have
the right to remedy such Event of Monetary Default or an Event of Non -Monetary Default, as
applicable, or to cause the same to be remedied prior to the conclusion of the Secured Lender's
Cure Period and otherwise as herein provided. The City shall accept performance by any
Secured Lender of any covenant, condition, or agreement on Developer's part to be performed
hereunder with the same force and effect as though performed by Developer.
(c) The period of time given to the Secured Lender to cure any Event of
Monetary Default or an Event of Non -Monetary Default by Developer which reasonably requires
that said Secured Lender be in possession of the Property to do so, shall be deemed extended to
include the period of time reasonably required by said Secured Lender to obtain such possession
(by foreclosure, the appointment of a receiver or otherwise) promptly and with due diligence;
provided that during such period all other obligations of Developer under this Agreement,
40
including, without limitation, payment of all amounts due, are being duly and promptly
performed.
12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under this
Agreement to perform the obligations of Developer's or the affirmative covenants of
Developer's hereunder or to guarantee such performance unless and until such time as a Secured
Lender takes possession or becomes the owner of the estate covered by its Mortgage. if the
Secured Lender takes possession or becomes the owner of any portion of the Property, then from
and after that date, the Secured Lender shall be obligated to comply with all provisions of this
Agreement; provided that the Secured Lender shall not be responsible to the City for any unpaid
monetary obligations of Developer that accrued prior to the date the Secured Lender became the
fee owner of the Property.
(b) Nothing in Section 12.1.4(x) 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 Propgisy. 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
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with respect to the Property in the form of Exhibit "I" attached hereto (the "Assumption
Agreement"). Upon such transfer of the Property and the express assumption of Developer's
obligations under this Agreement by the transferee, the City agrees to look solely to the
transferee for compliance with the provisions of this Agreement. Any such transferee shall be
entitled to the benefits of this Agreement as "Developer" hereunder and shall be subject to the
obligations of this Agreement. Failure to deliver a written Assumption Agreement hereunder
shall not affect the transfer of the benefits and burdens as provided in Section 13. 1, provided that
the transferor shall not be released from its obligations hereunder unless and until the executed
Assumption Agreement is delivered to the City.
ARTICLE 14
INDEMNITY TO CITY
14.1 Indemnity. Developer agrees to and shall defend, indemnify and hold harmless
the City, its City Council, boards and commissions, officers, agents, employees, volunteers and
other representatives (collectively referred to as "City Indemnified Parties") from and against
any and all loss, liability, damages, cost, expense, claims, demands, suits, attorney's fees and
judgments (collectively referred to as "Damages"), including but not limited to claims for
damage for personal injury (including death) and claims for property damage arising directly or
indirectly from the following: (1) for any act or omission of Developer or those of its officers,
board members, agents, employees, volunteers, contractors, subcontractors or other persons
acting on its behalf (collectively referred to as the "Developer Parties") which occurs during the
Term and relates to this Agreement; (2) for any act or omission related to the operations of
Developer Parties, including but not limited to the maintenance and operation of areas on the
Property accessible to the public. Developer's obligation to defend, indemnify and hold harmless
applies to all actions and omissions of Developer Parties as described above caused or alleged to
have been caused in connection with the Project or Agreement, except to the extent any Damages
are caused by the active negligence or willful misconduct of any City Indemnified Parties. This
Section 14, 1.1 applies to all Damages suffered or alleged to have been suffered by the City
Indemnified Parties regardless of whether or not the City prepared, supplied or approved plans or
specifications or both for the Project.
14.2 City's Right 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 14.1.1, 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.
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ARTICLE 15
GENERAL PROVISIONS
15.1 Notices. Formal notices, demands and communications between the Parties shall
be deemed sufficiently given if delivered to the principal offices of the City or Developer, as
applicable, by (i) personal service, or (ii) express mail, Federal Express, or other similar
overnight mail or courier service, regularly providing proof of delivery, or (iii) registered or
certified mail, postage prepaid, return receipt requested, or (iv) facsimile (provided that any
notice delivered by facsimile is followed by a separate notice sent within twenty-four (24) hours
after the transmission by facsimile delivered in one of the other manners specified above). Such
notice shall be addressed as follows:
To City
City of Santa Monica
1685 Main Street, Room 204
Santa Monica, CA 90401
Attention: City Manager
Fax: 310-917-6640
With a Copy to:
City of Santa Monica
1685 Main Street, Room 212
Santa Monica, CA 90401
Attn: Planning and Community Development Director
Fax: 310-458-3380
To Developer:
NMS Properties
1430 5a' Street, Suite 101
Santa Monica, CA 90401
Attn: Scott Walter
Fax: (310) 451-3505
With a Copy to:
Dave Rand
Armbruster, Goldsmith & Delvac LLC
11611 San Vicente Blvd, Suite 900
Los Angeles, CA 90049
Notice given in any other manner shall be effective when received by the addressee. Any Party
may change the addresses for delivery of notices to such Party by delivering notice to the other
Party in accordance with this provision.
15.2 Entire Agreement; Conflicts. This Agreement represents the entire agreement of
the Parties. This Agreement integrates all of the terms and conditions mentioned herein or
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incidental hereto, and supersedes all negotiations or previous agreements between the Parties or
their predecessors in interest with respect to all or any part of the subject matter hereof. Should
any or all of the provisions of this Agreement be found to be in conflict with any other provision
or provisions found in the Existing Regulations, then the provisions of this Agreement shall
prevail.
15.3 Binding Effect. The Parties intend that the provisions of this Agreement shall
constitute covenants which shall run with the land comprising the Property during the Term for
the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of
all successors -in -interest to the Parties hereto. Every Party who now or hereafter owns or
acquires any right, title, or interest in or to any portion of the Project during the Term is and shall
be conclusively deemed to have consented and agreed to every provision contained herein, to the
extent relevant to said right, title or interest, whether or not any reference to this Agreement is
contained in the instrument by which such person acquired an interest in the Project.
15.4 Agreement Not for Benefit of Third Parties. This Agreement is made and entered
into for the sole protection and benefit of 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 15.1.3 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
M]
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. The
Estoppel Certificate shall be provided in lieu of zoning compliance letters authorized pursuant to
Santa Monica Municipal Code Section 9.38.020E, or any successor thereto.
15.7 Time. Time is of the essence for each provision of this Agreement of which time
is an element.
15.8 Excusable Delays.
15,8.1 In addition to any specific provisions of this Agreement, non-performance
by Developer of its obligations under this Agreement shall be excused when it has been
prevented or delayed in such performance by reason of any act, event or condition beyond the
reasonable control of Developer (collectively, "Excusable Delays") for any of the following
reasons:
(a) War, insurrection, walk -outs, riots, acts of terrorism, floods,
earthquakes, fires, casualties, acts of God, or similar grounds for excused performances;
(b) Governmental restrictions or moratoria imposed by the City or by
other governmental entities or the enactment of conflicting State or Federal laws or regulations;
(c) The imposition of restrictions or moratoria by judicial decisions or by
litigation, contesting the validity, or seeking the enforcement or clarification of, this Agreement
whether instituted by Developer, the City or any other person or entity, or the filing of a lawsuit
by any Party arising out of this Agreement or any permit or approval Developer deems necessary
or desirable for the implementation of the Project;
(d) The institution of a referendum pursuant to Government Code Section
65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the
ordinance adopted by the City Council approving and implementing this Agreement;
(e) Inability to secure necessary labor, materials or tools, due to strikes,
lockouts, or similar labor disputes; and
(f) Failure of the City to timely perform its obligations hereunder,
including its obligations under Section 7.2 above
15,8.2 Under no circumstances shall the inability of Developer to secure
financing be an Excusable Delay to the obligations of Developer 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 the 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.
45
15.8.4 Nothing contained in this Section 15.8 is intended to modify the terms of
either Section 5.1.2 or Section 5.5 of this Agreement.
15.9 Governing Law. This Agreement shall be governed exclusively by the provisions
hereof and by the laws of the State of California.
15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any court
action or other proceeding commenced that includes any challenge to the validity, enforceability
or any term or provision of this Agreement, then Developer shall indemnify, hold harmless, pay
all costs actually incurred, and provide defense in said action or proceeding, with counsel
reasonably satisfactory to both the City and Developer. The City shall cooperate with Developer
in any such defense as Developer may reasonably request.
15.11 Attorneys' Fees. If any Party commences any action for the interpretation,
enforcement, termination, cancellation or rescission of this Agreement or for specific
performance for the Breach of this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees shall include attorneys'
fees on any appeal as well as any attorneys' fees incurred in any post judgment proceedings to
collect or enforce the judgment. Such attorneys' fees shall be paid whether or not such action is
prosecuted to judgment. In any case where this Agreement provides that the City or Developer
is entitled to recover attorneys' fees from the other, the Party so entitled to recover shall be
entitled to an amount equal to the fair market value of services provided by attorneys employed
by it as well as any attorneys' fees actually paid by it to third Parties. The fair market value of
the legal services for public attorneys shall be determined by utilizing the prevailing billing rates
of comparable private attorneys.
15.12 Recordation. The Parties shall cause this Agreement to be recorded against title
to the Property in the Official Records of the County of Los Angeles. The cost, if any, of
recording this Agreement shall be borne by Developer.
15.13 No Waiver. No waiver of any provision of this Agreement shall be effective
unless in writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought and referring expressly to this Section 15.13. No delay or
omission by either Party in exercising any right or power accruing upon non-compliance or
failure to perform by the other Party under any of the provisions of this Agreement shall impair
any such right or power or be construed to be a waiver thereof, except as expressly provided
herein. No waiver by either Party of any of the covenants or conditions to be performed by the
other Party shall be construed or deemed a waiver of any succeeding breach or nonperformance
of the same or other covenants and conditions hereof of this Agreement.
15.14 Construction of this Agreement. The Parties agree that each Party and its legal
counsel have reviewed and revised this Agreement and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation
of this Agreement or any amendments or exhibits thereto.
15.15 Other Governmental Approvals. Developer may apply for such other permits and
approvals as may be required for development of the Project in accordance with this Agreement
from other governmental or quasi -governmental agencies having jurisdiction over the Property.
The City shall reasonably cooperate with Developer in its endeavors to obtain such permits and
approvals.
15.15.1 Further Assurances; Covenant to Sign Documents. Each Party shall
take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any
and all documents and writings, which may be necessary or proper to achieve the purposes and
objectives of this Agreement.
15.15.2 Processing. Upon satisfactory completion by Developer of all required
preliminary actions and payments of appropriate processing fees, if any, the City shall, subject to
all legal requirements, promptly initiate, diligently process, and complete at the earliest possible
time all required steps, and expeditiously act upon any approvals and permits necessary for the
development by Developer of the Project in accordance with this Agreement, including, but not
limited to, the following;
(a) the processing of applications for and issuing of all Discretionary
Approvals requiring the exercise of judgment and deliberation by City;
(b) the holding of any required public hearings; and
(c) the processing of applications for and issuing of all City Technical
Permits requiring the determination of conformance with the Existing Regulations.
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 Pgty 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(c), after service on the City or Developer of the initial petition or
complaint challenging this Agreement or the Project, the Developer may apply to the Planning
Director for a tolling of the applicable deadlines for Developer to otherwise comply with this
Agreement. Within 40 days after receiving such an application, the Planning Director shall
either toll the time period for up to five years during the pendency of the litigation or deny the
requested tolling.
15.15.5 State, Federal or Case Law. Where any state, federal or case law
allows the City to exercise any discretion or take any act with respect to that law, the City shall,
in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in
such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such
other actions as may be necessary to carry out in good faith the terms of this Agreement.
47
15.15 Venue. Any legal action or proceeding among the Parties arising out of this
Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of
California, in any other appropriate court in that County, or in the Federal District Court in the
Central District of California.
15.17 Exhibits. The following exhibits which are part of this Agreement are attached
hereto and each of which is incorporated herein by this reference as though set forth in full:
Exhibit "A" Legal Description of the Property
Exhibit "B" Project Plans
Exhibit "C" Permitted Fees and Exactions
Exhibit "D" Conditions of Approval
Exhibit "E" SMMC Article 9 (Planning and Zoning)
Exhibit "F-1" Local Hiring Program for Construction
Exhibit "F-2" Local Hiring Program for Permanent Employment
Exhibit "G" Construction Mitigation Plan
Exhibit "H" Assignment and Assumption Agreement
Exhibit "I" Alcohol Conditions
Exhibit "J" Agreement Imposing Restrictions on Rents & Occupancy
of Real Property
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 Counter art 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 Operatingt Memoranda. The provisions of this Agreement require a close degree
of cooperation between the City and Developer. During the Term of this Agreement,
48
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 Pari of Develo er.
15.22.1 Developer's Faithful Performance. The Parties acknowledge and
agree that Developer's faithful performance in developing the Project on the Property and in
constructing and installing certain public improvements pursuant to this Agreement and
complying with the Existing Regulations will fulfill substantial public needs. The City
acknowledges and agrees that there is good and valuable consideration to the City resulting from
Developer's assurances and faithful performance thereof and that same is in balance with the
benefits conferred by the City on the Project. The Parties further acknowledge and agree that the
exchanged consideration hereunder is fair, just and reasonable. Developer acknowledges that the
consideration is reasonably related to the type and extent of the impacts of the Project on the
community and the Property, and further acknowledges that the consideration is necessary to
mitigate the direct and indirect impacts caused by Developer on the Property.
15.22.2 Obligations to be Non -Recourse. As a material element of this
Agreement, and in partial consideration for Developer's execution of this Agreement, the Parties
each understand and agree that the City's remedies for breach of the obligations of Developer
under this Agreement shall be limited as described in Sections 11.2 through 11.4 above.
15.22.3 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 56020 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.
15.23 Not a Public Dedication. Nothing in this Agreement shall be deemed to be a gift
or dedication of the Property, or of the Project, or any portion thereof, to the general public, for
the general public, or for any public use or purpose whatsoever, it being the intention and
understanding of the Parties that this Agreement be strictly limited to and for the purposes herein
expressed for the development of the Project as private property. Developer shall have the right
to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including
common areas and buildings and improvements located thereon, by any person for any purpose
inimical to the development of the Project, including without limitation to prevent any person or
entity from obtaining or accruing any prescriptive or other right to use the Property or the
Project. Any portion of the Property to be conveyed to the City by Developer as provided in this
Agreement, shall be held and used by the City only for the purposes contemplated herein or
otherwise provided in such conveyance, and the City shall not take or permit to be taken (if
within the power or authority of the City) any action or activity with respect to such portion of
the Property that would deprive Developer of the material benefits of this Agreement or would
materially and unreasonably interfere with the development of the Project as contemplated by
this Agreement.
15.24 Other Agreements. The City acknowledges that certain additional agreements
may be necessary to effectuate the intent of this Agreement and facilitate development of the
Project. The City Manager or his/her designee is hereby authorized to prepare, execute, and
record those additional agreements.
15.25 Severability and Termination. If any provision of this Agreement is determined
by a count of competent jurisdiction to be invalid or unenforceable, or if any provision of this
Agreement is superseded or rendered unenforceable according to any law which becomes
effective after the Effective Date, the remainder of this Agreement shall be effective to the extent
the remaining provisions are not rendered impractical to perform, taking into consideration the
purposes of this Agreement.
This Agreement is executed by the Parties on the date first set forth above and is made
effective on and as of the Effective Date.
DEVELOPER:
By: _
Name:
Title:
ENILY'i
DRAFT
CITY OF SANTA MONICA,
a municipal corporation
50
By: DRAFT
Name:
Title:
ATTEST:
By: DRAFT
Name:
City Clerk
APPROVED AS TO FORM;
By: _
Name:
51
City Attorney
EXHIBIT "A" "
LEGAL DESCRIPTION OF PROPERTY
All that certain real property situated in the County of Los Angeles, State of California,
described as follows:
Parcel 1:
Lois "T" and "U" In Bloch 169 of Town of Santa Monica, in the City of Santa Monica,
County of Los Angeles, State of California, as per map recorded in Book 3, Pages 80 and
81, of Miscellaneous Records, and in Book 39, Pages 45, et seq., of Miscellaneous Records,
in the Office of the County Recorder of said County.
Assessor's Parcel Dumber: 4291-019-020,4291-019-021
FOX 111'11 0M11U,
PROJECT PLANS
On File with the City of Santa Monica
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)
® Cultural Arts Fee (SMMC Chapter 9.30). Developer shall execute a contract
to pay the fee prior to issuance of a building permit. Developer shall pay the
fee prior to the issuance of a final certificate of occupancy for the Project.
(d) Upon inspection of the Project during the course of construction, City inspection
fees.
These fees shall be reimbursed to Developer in accordance with the City's standard
practice should Developer not proceed with development of the Project.
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:
s Use of Public Property Permit fees (SMMC 7.04.670) (EPWM)
C-1
® Utility Excavation Permit fee (SMMC 7.04.010) (EPWM)
® Street Permit fee (SMMC 7.04.790) (EPWM)
The Developer shall reimburse the City for its actual costs to monitor environmental
mitigation measures. The City shall bill the 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.
4. 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"
Project Specific Conditions
1. The project shall provide the Significant Project Features and LUCE Community
Benefits as established in Sections 2.6 and 2.7 of this Agreement.
2. The Architectural Review Board shall pay particular attention to the following design
elements of the Project;
® The 51h Court alley elevation of the project to ensure that it reflects the same level
of design detail as the front elevation (5th Street).
® The height of the plaza ceiling with focus on its impact on the overall scale of the
building and how the building relates to the pedestrians
® The public visibility of the proposed signs in the Project.
3. The south wall of the exterior plaza shall be engineered so that, upon redevelopment of
the property to the immediate south of the subject property, it shall be removed to be set
back 8 feet from the back of the public sidewalk and for the entire height of the plaza.
4. No permanent physical obstructions shall be installed within the 3 -foot building setback,
measured from the back of sidewalk, as shown on the Project Plans.
5. No permit for outdoor dining located on public right-of-way shall be issued for the
Project.
CITY PLAI®NING
Administrative Conditions
6. In the event Developer violates or fails to comply with any conditions of approval of this
permit, no further permits, licenses, approvals or certificates of occupancy shall be issued
until such violation has been fully remedied.
Conformance with Approved Plans
7. This approval is for those plans dated September 3, 2015 a copy of which shall be
maintained in the files of the City Planning Division, Project development shall be
consistent with such plans, except as otherwise specified in these conditions of approval.
8. Minor amendments to the plans shall be subject to approval by the Director of Planning.
A significant change in the approved concept shall be subject to review as provided in the
Development Agreement. Construction shall be in conformance with the plans submitted
or as modified in accordance with the Development Agreement.
D-1
9. Except as otherwise provided by the Development Agreement, project plans shall be
subject to complete Code Compliance review when the building plans are submitted for
plan check and shall comply with all applicable provisions of Article IX of the Municipal
Code and all other pertinent ordinances and General Plan policies of the City of Santa
Monica prior to building permit issuance.
Fees
10. 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 Ails Requirement. If the developer elects to comply with these requirements by
providing onsite public art work or cultural facilities, no final City approval shall be
granted until such time as the Director of the Community and Cultural Services
Department issues a notice of compliance in accordance with Part 9.04.10.20.
Cultural Resources
11. Except as other provided by the Development Agreement, no demolition of buildings or
structures built 40 years of age or older shall be permitted until the end of a 60 -day
review period by the Landmarks Commission to determine whether an application for
landmark designation shall be filed. If an application for landmark designation is filed,
no demolition shall be approved until a final determination is made by the Landmarks
Commission on the application.
12. 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
13. 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.
14. The project shall at all times comply with the provisions of the Noise Ordinance (SMMC
Chapter 4.12 or any successor thereto).
Final Design
15. Plans for final design, landscaping, screening, trash enclosures, and signage shall be
subject to review and approval by the Architectural Review Board.
D-2
16. Landscaping plans shall comply with Chapter 9.26 (Landscaping) of the Zoning
Ordinance including use of water -conserving landscaping materials, landscape
maintenance and other standards contained in the Subchapter.
17. Refuse areas, storage areas and mechanical equipment shall be screened in accordance
with SMMC Section 9.21.100, 130, and 140. Refuse areas shall be of a size adequate to
meet on-site need, including recycling. The Architectural Review Board in its review
shall pay particular attention to the screening of such areas and equipment. Any rooftop
mechanical equipment shall be minimized in height and area, and shall be located in such
a way as to minimize noise and visual impacts to surrounding properties. Unless
otherwise approved by the Architectural Review Board, rooftop mechanical equipment
shall be located at least five feet from the edge of the roof. Except for solar hot water
heaters, no residential water heaters shall be located on the roof.
18. 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.
19. 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.
20. As appropriate, the Architectural Review Board shall require the use of anti -graffiti
materials on surfaces likely to attract graffiti.
Construction Plan Requirements
21. Final building plans submitted for approval of a building permit shall include on the plans
a list of all permanent mechanical equipment to be placed indoors which may be heard
outdoors.
Demolition Requirements
22. Until such time as the demolition is undertaken, and unless the structure is currently in
use, the existing structure shall be maintained and secured by boarding up all openings,
erecting a security fence, and removing all debris, bushes and planting that inhibit the
easy surveillance of the property to the satisfaction of the Building and Safety Officer and
the Fire Department. Any landscaping material remaining shall be watered and
maintained until demolition occurs.
23. Prior to issuance of a demolition permit, applicant shall prepare for Building Division
approval a rodent and pest control plan to insure that demolition and construction
activities at the site do not create pest control impacts on the project neighborhood.
Construction Period
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24. There shall be no construction activities that require opening, closing, or blocking of
streets, sidewalks, alleys, or street parking in retail areas of the City over the holiday
season that runs from the day before Thanksgiving through January 2"d. Exemptions are
allowed for emergencies and special conditions authorized in advance by the Director of
Public Works. The following areas are affected by this condition: Downtown (Wilshire
to the 10 Freeway and Lincoln to Ocean Avenue); Main Street (Pico to the Southerly city
limit); Montana Avenue (6th Court to 17th Street); Pico Boulevard (from the Ocean to the
Easterly city limit at Centinela).
Standard Conditions
25. 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.
26. 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.
27. The property owner shall insure any graffiti on the site is promptly removed through
compliance with the City's graffiti removal program.
Condition Monitoring
28. 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
29. 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:// ortation/Trans ortation Mana
em ent/Parking Standards, pd f
30. Where a driveway, garage, parking space or loading zone intersects with the public right -
of way at the alley or sidewalk, hazardous visual obstruction triangles shall be provided
in accordance with SMMC Section 9.21.180. Please reference the following standards:
htt ://,A,ww,sm ov.net/u loadedFiles/De aitments/`Trans ortation/Trans ortation Mana
eament/Flyo�df
31. 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
F A'
Planning Manager but shall not exceed a twenty percent slope. Please reference the
following standards:
htt ://www.srn rov.net/u loadedFiles/I3e a�trnents/Trans of tatio�/Frans ortation Mana
cmcnt/RamDS1ope.pdf
32. Bicycle parking provided in the Project shall meet the following requirements:
Bicycle parking shall be provided in a convenient, highly visible, and well -lit
area.
Bicycle parking shall be at least as conveniently located as the most convenient
automobile spaces, other than those spaces for persons with disabilities. Safe and
convenient means of ingress and egress shall be provided that does not interfere
with accessible paths of travel or accessible parking as required by this Code.
Bicycle parking facilities within auto parking areas shall provide a minimum of
18" of separation between the parking space and a parked bicycle to prevent
damage by automobiles or other moving vehicles with the exception of bicycle
racks provided above ground at the head of the parking space. If provided at the
head of the parking space, the space must be assigned to the same user of the
bicycle rack. Barriers may be in the form of curbs, wheel stops, poles, or other
similar features if they do not interfere with the adjacent parking stall or pathway.
® Bicycle parking facilities shall be located on or within a concrete or similar
surface and designed to support bicycles in a stable position without damage to
wheels, frames, or other components.
Facilities shall be securely anchored to the surface to prevent easy removal and
shall be of sufficient strength to resist vandalism and theft.
® Bicycle parking areas shall contain signage that clearly shows how the bicycle
should be locked for optimum security and a number where to contact the owner
with questions or report theft.
® Bicycle parking wayfinding signage is required for every site.
® Vertical parking racks must allow one to securely lock a bike tire and frame to the
rack.
® Bicycle parking facilities and bicycle parking racks, shall be designed and located
to meet the following criteria:
Each bicycle parking spaces shall be designed with at least 2 feet in width
by 6 feet in length to allow sufficient space between parked bicycles.
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ii. 24 to 30 inches of clearance shall be provided between bicycle parking
spaces and adjacent walls, poles, landscaping, street furniture, drive aisles,
and pedestrian ways and at least five feet from vehicle parking spaces.
iii. Located 30 inches from a perpendicular wall, as measured form the edge
of the facility closest to the wall and in the direction bicycles are to be
parked.
iv. Provide a minimum 5 foot wide aisle or space behind all required bicycle
parking to allow room for bicycle maneuvering.
V. At least 10 percent of the total bike parking must be provided to
accommodate 10 feet long bicycles with trailers, recumbent, and cargo
style bicycles.
BIG BLUE BUS
33. Developer shall notify all tenants (residential and/or commercial) in writing as part of
their lease or rental agreement that the City envisions a network of transit services in the
Downtown area that may result in public transit services operating on any street in the
Downtown area, both on streets currently used by transit or through expansion of service
to streets not currently utilized by transit. In addition, new bus stops or bus layover zones
may be established on these streets for regular use by either the Big Blue Bus or other
fixed route or specialized transit operators. 4n -street parking may be removed at any
time to create a bus zone in an appropriate location for safe vehicular movement and
passenger safety regardless of business or residential adjacency.
34. Developer shall notify all residential and/or commercial tenants in writing as part of their
lease or rental agreement that they are located within 1000 feet of a facility used 24 hours
per day, 365/6 days per year for the operation and maintenance of the City's transit and
other vehicle fleets and such adjacency may subject them to the continuous sounds
associated with operating and maintaining a large fleet of vehicles on a daily basis. The
sounds of engines, radios, machinery, equipment, alarms, voices, compression
tanks/tools, fueling and washing activities are some but not all of the sounds that might
be heard on a 24 hour daily basis.
PUBLIC LANDSCAPE
35. 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.
L.
36. Prior to the issuance of a demolition permit all street trees that are adjacent to or will be
impacted by the demolition or construction access shall have tree protection zones
established in accordance with the Urban Forest Master Plan. All tree protection zones
shall remain in place until demolition and/or construction has been completed.
37. Replace or plant new street trees in accordance with Urban Forest Master Plan and in
consultation with City Arborist.
38. 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.
39. The project shall comply with requirements in section 8.106 of the Santa Monica
Municipal code, which adopts by reference the California Green Building Standards
Code and which adds local amendments to that Code. In addition, the project shall meet
the landscape water conservation and construction and demolition waste diversion
requirements specified in Section 8.108 of the Santa Monica Municipal Code.
40. Pursuant to SMMC Section 4.24.030, prior to receipt of the final permit necessary to
demolish, convert, or otherwise remove a controlled rental unit(s) from the housing
market, the owner of the property shall first secure a removal permit under Section
1803(t), an exemption determination, an approval of a vested rights claim from the Rent
Control board, or have withdrawn the controlled rental unit(s) pursuant to the provisions
of the Ellis Act.
PUBLIC WORDS
General Conditions
39. 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
f. Encroachment of on-site improvements into public right-of-way
g. Construction and Demolition Waste Management — If the valuation of a project is
at least $50,000 or if the total square feet of the project is equal to or greater than
IW]
1000 square feet, then the owner or contractor is required to complete and submit
a Waste Management Plan. All demolition projects are required to submit a
Waste Management Plan. A performance deposit is collected for all Waste
Management Plans equal to 3% of the project value, not to exceed $30,000. All
demolition only permits require a $1,000 deposit or $1.00 per square foot,
whichever is the greater of the two.
Some of these fees shall be reimbursed to developer in accordance with the City's
standard practice should Developer not proceed with development of the Project. In
order to receive a refund of the Construction and Demolition performance deposit, the
owner or contractor must provide receipts of recycling 70% of all materials listed on the
Waste Management Plan.
40. Developer shall comply with the Construction Mitigation Obligations set forth in Exhibit
"G" attached hereto.
41. Any construction related work or use of the public right-of-way will be required to obtain
the approval of 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.
42. Plans and specifications for all offsite improvements shall be prepared by a Registered
Civil Engineer licensed in the State of California for approval by the City Engineer prior
to issuance of a building permit.
43. Immediately after demolition and during construction, a security fence, the height of
which shall be the maximum permitted by the Zoning Ordinance, shall be maintained
around the perimeter of the lot. The lot shall be kept clear of all trash, weeds, etc.
44. Until completion of construction, a sign shall be posted on the property in a manner
consistent with the public hearing sign requirements, which shall identify the address and
phone number of the owner, developer and contractor for the purposes of responding to
questions and complaints during the construction period. Said sign shall also indicate the
hours of permissible construction work.
45. Prior to the demolition of any existing structure, the applicant shall submit a report from
an industrial hygienist to be reviewed and approved as to content and form by the
Building & Safety Division. The report shall consist of a hazardous materials survey for
the structure proposed for demolition. The report shall include a section on asbestos and
in accordance with the South Coast AQMD Rule 1403, the asbestos survey shall be
performed by a state Certified Asbestos Consultant (CAC). The report shall include a
section on lead, which shall be performed by a state Certified Lead Inspector/Assessor.
Additional hazardous materials to be considered by the industrial hygienist shall include:
mercury (in thermostats, switches, fluorescent light), polychlorinated biphenyls (PCBs)
(including light Ballast), and fuels, pesticides, and batteries.
Water Resources
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46. Connections to the sewer or storm drains require a sewer permit from the PWD - Civil
Engineering Division. Connections to storm drains owned by Los Angeles County
require a permit from the L.A. County Department of Public Works.
47. 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.
48. 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 infoiMation refer
to: http://www.waterboards.ca.gov/losangeles/ and search for Order # R4-2003-0111.
49. 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. If the
study does not show to the satisfaction of the City that the City's sewer system can
accommodate the entire development, prior to issuance of the first building permit, the
Developer shall be responsible to upgrade any downstream deficiencies, to the
satisfaction of the Water Resources Manager, if calculations show that the project will
cause such mains to receive greater demand than can be accommodated. Improvement
plans shall be submitted to the Engineering Division. All reports and plans shall also be
approved by the Water Resources Engineer.
50. 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.
51. 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.
52. Developer shall not directly connect to a public storm drain pipe or direct site drainage to
the public alley. Commercial or residential units are required to either have an individual
water meter or a master meter with sub -meters.
53. All existing sanitary sewer "house connections" to be abandoned, shall be removed and
capped at the "Y" connections.
M
54. The fire services and domestic services 3 -inches or greater must be above ground, on the
applicant's site, readily accessible for testing.
55. 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/ch/progs/envirp/ehcross.htm. Prior to
issuance of a Certificate of Occupancy, a cross -connection inspection shall be completed.
56. 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.
57. Unless otherwise required by Section 2.7.5 of this Agreement, 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
58. To mitigate storm water and surface runoff from the project site, an Urban Runoff
Mitigation Plan shall be required by the PWD pursuant to Municipal Code Chapter 7.10.
Prior to submittal of landscape plans for Architectural Review Board approval, the
applicant shall contact PWD to determine applicable requirements, such as:
a. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution
Ordinance for the construction phase and post construction activities;
b. Non -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
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Developer" are qualified to develop and/or revise SWPPPs. A copy of the SWPPP
shall also be submitted to the PWD.
59. Prior to implementing any temporary construction dewatering or permanent groundwater
seepage pumping, a permit is required from the City Water Resources Protection
Program (WRPP). Please contact the WRPP for permit requirements at least two weeks
in advance of planned dewatering or seepage pumping. They can be reached at (3 10)
458-8235.
Public Streets & Right -of -Way
60. 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.
61. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable
during the grading and construction phase of the project.
62. Sidewalks, curbs, gutters, paving and driveways which need ;replacing or removal as a
result of the project or needed improvement prior to the project, as determined by the
PWD shall be reconstructed to the satisfaction of the PWD. Design, materials and
workmanship shall match the adjacent elements including architectural concrete, pavers,
tree wells, art elements, special landscaping, etc.
63. 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
64. 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 Telecommunications
Vaults in either the street, alley and/or sidewalk locations dedicated solely for City of
Santa Monica use. Developer shall provide two unique, telecommunication conduit
routes and fiber optic cables from building Telecommunications Room to
Telecommunications Vaults in street, alley and/or sidewalk. Developer will be
responsible for paying for the connection of each Telecommunications Vault to the
existing City of Santa Monica fiber optic network, or the extension of conduit and fiber
optic cable for a maximum of lknm 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.
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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 7113104
65. 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.
66. 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 development
frontages. Existing and proposed overhead utilities need to be relocated underground.
67. Location of Southern California Edison electrical transformer and switch
equipment/structures must be clearly shown on 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
68. 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
9.21.1.30 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.
69. Contact Resource Recovery and Recycling RRR division to obtain dimensions of the
refuse recycling enclosure.
70. 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;
Designated recycling coordinator;
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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
71. 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.
72. 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
73. A fire apparatus access road shall be provided to within 150 feet of all exterior walls of
the first floor of the building. The route of the fire apparatus access road shall be
approved by the fire department. The 150 feet is measured by means of an unobstructed
route around the exterior of the building.
74. Apparatus access roads shall have a minimum unobstructed width of 20 feet. A minimum
vertical clearance of 13 feet 6 inches shall be provided for the apparatus access roads.
75. Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided
with an approved means for turning around the apparatus.
76. 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.
77. 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.
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78. Buildings four or more stories in height shall be provided with not less than one
standpipe during construction.
79. 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.
80. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum rating of
2A-IOB:C. Extinguishers shall be located on every floor or level. Maximum travel
distance fiom any point in space or building shall not exceed 75 feet. Extinguishers shall
be mounted on wall or installed in cabinet no higher than 4 ft. above finished floor and
plainly visible and readily accessible or signage shall be provided.
81. 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.
82. 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)
83. 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.
84. 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.
85. Show ALL door hardware intended for installation on Exit doors.
86. 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)
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87. Stairway Identification shall be in compliance with CSC 1022.8
88. Floor -level exit signs are required in Group A, E, I, R-1, R-2 and R-4 occupancies.
89. In buildings two stories in height at least one elevator shall conform to the California
Building Code Chapter 30 section 3003.5a for General Stretcher Requirements for
medical emergency use.
a. The elevator entrance shall not be less than 42 inches wide by 72 inches high.
b. The elevator car shall have a minimum clear distance between walls excluding
return panels of not less than 80 inches by 54 inches.
C. Medical emergency elevators shall be identified by the international symbol (star
of life) for emergency elevator use. The symbol shall be not less than 3 -inches in
size.
90. 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.
91. 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.
92. An approved fire alarm system shall be installed as follows:
93. 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.
94. Group E Occupancies having occupant loads of 50 or more shall be provided with an
approved manual fire alarm system.
95. 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.
96. Plans and specifications for fire alarm systems shall be submitted and approved prior to
system installation
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Santa Monica Fire Department - Fire Prevention Policy Number 5-1
Subject: Fire Apparatus Access Road Requirements
Scope: This policy identifies the minimum standards for apparatus. access roads required by
California Fire Code, Section 503.
Application
97. Fire apparatus access roads shall comply with the following minimum standards:
a. The minimum clear width shall be not less than 20 feet. No parking, stopping or
standing of vehicles is permitted in this clear width.
b. When fire hydrants or fire department connections to fire sprinkler systems are
located on fire apparatus access roads the minimum width shall be 26 feet. This
additional width shall extend for 20 feet on each side of the centerline of the fire
hydrant or fire department connection.
C. The minimum vertical clearance shall be 13 feet, 6 inches.
d. The minimum turn radius for all access road turns shall be not less than 39 feet for
the inside radius and 45 feet for the outside radius.
e. Dead-end access roads in excess of 150 feet in length shall be provided with
either a 96 feet diameter "cul-de-sac," 60 foot "Y" or 120 -foot "hammerhead" to
allow the apparatus to turn.
f The surface shall be designed and maintained to support the imposed loads of at
least 75,000 -pound and shall be "all-weather." An "all-weather" surface is
asphalt, concrete or other approved driving surface capable of supporting the load.
98. Gates installed on fire apparatus access roads shall comply with the following:
a. The width of any gate installed on a fire apparatus access road shall be a
minimum of 20 feet.
b. Gates may be of the swinging or sliding type.
C. Gates shall be constructed of materials that will allow for manual operation by
one person.
d. All gate components shall be maintained in an operative condition at all times and
shall be repaired or replaced when defective.
e. Electric gates shall be equipped with a means of opening the gate by fire
department personnel for emergency access. The Fire Prevention Division shall
approve emergency opening devices.
f. Manual opening gates may be locked with a padlock, as long it is accessible to be
opened by means of forcible entry tools.
g. The Fire Prevention Division shall approve locking device specification.
D-16
96'
g
—� 26'
'
..,--26' R 20'-T
iYP` 20' � 20'
26'—
96' DIAMETgR 60' ..Y'' MINIMUM CLEARANCE
CUL-DE-SAC AROUND A FIRE
HYDRANT
�aW 28'
TYPI
28' Rr260, -L
`l"YP' 20'-T
26' 20t
120' HAMMERHEAD ACCEPTABLE ALTERNATIVE
TO 120' HAMMERHEAD
99. Fire apparatus access roads shall be marked with permanent NO PARKING — FIRE
LANE CVC SECTION 22500.1. Signs shall have a minimum dimension of 12 inches
wide and 18 inches high having red letters on a white reflective background.
a. Fire apparatus access roads signs and placement shall comply with the following:
i. Fire Apparatus access roads 20 to 26 feet wide must be posted on both
sides as a fire lane.
ii. Fire Apparatus access roads 26 to 32 feet wide must be posted on one side
as a fire lane.
100. Buildings or facilities exceeding 30 feet in height or more than 3 stories in height shall
have at least 2 fire apparatus access roads for each structure.
101. Fire apparatus access roads for commercial and industrial development shall comply with
the following:
i. Buildings or facilities exceeding 30 feet in height or more than 3 stories in height
shall have at least 2 means of fire apparatus access for each structure.
D-17
ii. Buildings or facilities having a gross floor area of more than 62,000 square feet
shall be provided with 2 fire apparatus access roads.
iii. When two access roads are required, they shall be placed a distance apart equal to
not less than one half of the length of the maximum overall diagonal dimension of
the property or area to be accessed measured in a straight line between access.
102. Aerial apparatus access roads shall comply with the following:
i. Buildings or portions of buildings or facilities exceeding 30 feet in height from
the lowest point of Fire Department access shall be provided shall be provided
with approved apparatus access roads capable of accommodating aerial apparatus.
ii. Apparatus access roads shall have a minimum width of 26 feet in the immediate
vicinity of any building or portion of a building more than 30 feet in height.
iii. At least one of the required access roads meeting this condition shall be located
within a minimum of 15 feet and maximum of 30 feet from the building and shall.
be a positioned parallel to one entire side of the building.
D-18
103. California Building Code / Santa Monica Fire De artment Requirements
Occupancy Classification and Division
® If a change in occupancy or use, identify the existing and all proposed new occupancy
classifications and uses
® Assembly (A-1, A-2, A-3), Business (B), Mercantile (M), Residential (R), etc.
® Include all accessory uses
Building Height
G Height in feet (SMMC defines a High -Rise as any structure greater than 55 feet.)
® Number of stories
a Detail increase in allowable height
Type I (11 -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. {omittedl
g. Elevators.
h. Standby power and light and emergency systems.
i. Exits
j. Seismic consideration.
D-19
Total Floor Area of Building or Project
® Basic Allowable Floor Area
® Floor Area for each room or area
® Detail allowable area increase calculations
Corridor Construction
• Type of Construction
® Detail any and all code exceptions being used
Occupant Load Calculations
® Occupancy Classification for each room or area.
® Occupant Load Calculation for each room or area based on use or occupancy
Total Proposed Occupant Load
Means of Egress
® Exit width calculations
® Exit path of travel
Exit Signage and Pathway Illumination (low level exit signage)
Atria d 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.
D-20
® The interior finish for walls and ceilings of the atrium and all unseparated tenant
spaces shall be Class 1, Section 404.8.
Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only contain
furnishings and decorative materials with potential heat of combustion less than 9,000 Btu's per
pound. All furnishings to comply with California Bureau of Home Furnishings, Technical
Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies."
All furnishings in public areas shall comply with California Bureau of Home Furnishings,
Technical Bulletin 133, "Flammability Test for Seating Furniture in Public Occupancies."
Los ,Angeles County Fire
104. Fire Flow Re uirements
1. INTRODUCTION
A. Purpose: To provide Department standards for fire flow, hydrant spacing and
specifications.
B. Scone: 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
IL RESPONSIBILITY
A. Land Development Unit
1. The Department's Land Development Unit shall review all subdivisions of
land and apply fire flow and hydrant spacing requirements in accordance
with this regulation and the present zoning of the subdivision or allowed
land use as approved by the County's Regional Planning Commission or
city planning department.
B. Fire Prevention Engineering Section
1. The Department's Fire Prevention Engineering Section shall review
building plans and apply fire flow and hydrant spacing requirements in
accordance with this regulation.
TTI Pnr ICY
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.
D-21
IV. PROCEDURES
A. Land development: fire flow, duration of flow, and hydrant spacing
The following requirements apply to land development issues such as: tract and
parcel maps, conditional use permits, zone changes, lot line adjustments, planned
unit developments, etc.
1. Residential
Fire Zones 3
Very High Fire Hazard Severity Zone (VHFHSZ)
Public
Fire Flow Duration Hydrani
of Flow Spacing
a. Single family dwelling 1,250 GPM 2 his. 600 ft.
and detached condominiums
(I — 4 Units)
(Under 5,000 square feet)
b. Detached condominium 1,500 GPM 2 hrs. 300 ft.
(5 or more units)
(Under 5,000 square feet)
C. Two family dwellings 1,500 GPM 2 hrs. 600 ft.
(Dunlexes)
NOTE: FOR SINGLE FAMILY DWELLINGS OVER 5,000
SQUARE FEET. SEE, TABLE 1 FOR FIRE FLOW
REQUIREMENTS PER BUILDING SIZE.
2. Multiple family dwellings, hotels, high rise, commercial, industrial, etc.
a. Due to the undetermined building designs for new land development
projects (undeveloped land), the required fire flow shall be: 5,000 GPM
5 hrs. 300 ft.
NOTE: REDUCTION IN FIRE FLOW IN ACCORDANCE WITH
TABLE 1.
b. Land development projects consisting of lots having existing structures
shall be in compliance with Table 1 (fire flow per building size). This
standard applies to multiple family dwellings, hotels, high rise,
commercial, industrial, etc.
NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT
20 POUNDS PER SQUARE INCH RESIDUAL
PRESSURE.
B. Building plans
D-22
The Department's Fire Prevention Engineering Section shall review building plans and
apply fire flow requirements and hydrant spacing in accordance with the following:
1. Residential
Building Occupancy Classification
a. Single family dwellings - Fire Zone 3 (Less than 5,000 square feet
Duration Public Hydrant
Fire Flow of Flow Sacro
On a lot of one acre or more 750 GPM 2 Ins. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs 600 ft.
b. Single family dwellings — VHFHSZ Less than 5,000 square feet
On a lot of one acre or more 1,000 GPM 2 hrs. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs 600 ft.
NOTE: FOR SINGLE FAMILY DWELLINGS GREATER THAN 5,000
SQUARE FEET IN AREA SEE TABLE
D-23
C.
Duration
Fire Flow of Flow
c. Two family dwellings — VHFHSZ Less than 5 000 square feet
Duplexes
2. Mobile Home Park
a. Recreation Buildings
b. Mobile Home Park
1,500 GPM 2 hrs
Public Hydrant
S acin
600 ft.
Refer to Table 1 for fire flow according to building
size.
1,250 GPM 2 hrs 600 ft.
3. Multiple residential, apartments, single family residences (greater than 5,000
square feet), private schools, hotels, high rise, commercial, industrial, etc. (R-1, E,
B, A, I, H, F, M, S) (see Table 1).
Public fire hydrant requirements
1. Fire hydrants shall be required at intersections and along access ways as spacing
requirements dictate
2. Spacing
a. Cul-de-sac
When cul-de-sac depth exceeds 450' (residential) or
200' (commercial), hydrants shall be required at mid -block.
Additional hydrants will be required if hydrant spacing exceeds
specified distances.
b. Single family dwellings
Fire hydrant spacing of 600 feet
NOTE: The following guidelines shall be used in meeting
single family dwellings hydrant spacing
requirements:
(1) Urban properties (more than one unit per acre):
No portion of lot frontage should be more than 450' via
vehicular access from a public hydrant.
(2) Non -Urban Properties (less than one unit per acre):
No portion of a structure should be placed on a lot where
it exceeds 750' via vehicular access from a properly
spaced public hydrant that meets the required fire flow.
C. All occupancies
D-24
Other than single family dwellings, such as commercial,
industrial, multi -family dwellings, private schools, institutions,
detached condominiums (five or more units), etc.
Fire hydrant spacing shall be 300 feet.
NOTE: The following guidelines shall be used in meeting the
hydrant spacing requirements.
(1) No portion of lot frontage shall be more than 200 feet
via vehicular access from a public hydrant.
(2) No portion of a building should exceed 400 feet via
vehicular access from a properly spaced public hydrant.
d. Supplemental fire protection
When a structure cannot meet the required public hydrant
spacing distances, supplemental fire protection shall be
required.
NOTE: Supplemental fire protection is not limited to the
installation of on-site fire hydrants; it may include automatic
extinguishing systems.
3. Hydrant location requirements - both sides of a street
Hydrants shall be required on both sides of the street whenever:
a. Streets having raised median center dividers that make access to hydrants
difficult, causes time delay, and/or creates undue hazard.
b. For situations other than those listed in "a" above, the Department's
inspector's judgment shall be used. The following items shall be considered
when determining hydrant locations:
(1) Excessive traffic loads, major arterial route, in
which traffic would be difficult to detour.
(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.
D-25
(1) Only sprinklered buildings qualify for the
maximum spacing of 600 feet.
(2) For non-sprinklered buildings, consideration
should be given to fire protection, access doors,
outside storage, etc. Distance between hydrants
should not exceed 400 feet.
2. Fire flow
a. All on-site fire hydrants shall flow a minimum of 1,250 gallons per minute
at 20 psi for a duration of two hours. If more than one on-site fire hydrant
is required, the on-site fire flow shall be at least 2,500 gallons per minute at
20 psi, flowing from two hydrants simultaneously. On site flow may be
greater depending upon the size of the structure and the distance from
public hydrants.
NOTE: ONE OF THE TWO HYDRANTS TESTED SHALL BE THE
FARTHEST FROM THE PUBLIC WATER SOURCE.
3. Distance from structures
All on-site hydrants small be installed a minimum of 25 feet from a
structure or protected by a two-hour firewall.
4. Shut-off valves
All on-site hydrants shall be equipped with a shut-off (gate) valve, which
shall be located as follows;
a. Minimum distance to the hydrant 10 feet.
b. Maximum distance from the hydrant 25 feet
5. Inspection of new installations
All new on-site hydrants and underground installations are subject to
inspection of the following items by a representative of the Department:
a. Piping materials and the bracing and support thereof.
b. A hydrostatic test of 200 psi for two hours.
C. l h 1 1 11 111 1 k[ l i t Ih ii i l� lli lit �
I Flow test to satisfy required fire flow.
(1) Hydrants shall be painted with two coats of red primer and one
coat of red paint, with the exception of the stem and threads, prior
to flow test and acceptance of the system.
6. Maintenance
It shall be the responsibility of the property management company, the
homeowners association, or the property owner to maintain on-site
hydrants.
a. Hydrants shall be painted with two coats of red primer and one coat of red,
with the exception of the stem and threads, prior to flow test and
acceptance of the system.
b. No barricades, walls, fences, landscaping, etc., shall be installed or planted
within three feet of a fire hydrant. ,
E. Public Hydrant Flow Procedure
The minimum acceptable flow from any existing public hydrant shall be 1,000
D-26
GPM unless the required fire flow is less. Hydrants used to satisfy fire flow
requirements will be determined by the following items:
1. Only hydrants that meet spacing requirements are acceptable for
meeting fire flow requirements.
2, In order to meet the required fire flow:
a. Flow closest hydrant and calculate to determine flow at 20 pounds
per square inch residual pressure. If the calculated flow does not
meet the fire flow requirement, the next closest hydrant shall be
flowed simultaneously with the first hydrant, providing it meets the
spacing requirement, etc.
b. If more than one hydrant is to be flowed in order to meet the
required fire flow, the number of hydrants shall be flowed as
follows:
One hydrant 1,250 GPM and below
Two hydrants 1,251— 3,500 GPM flowing simultaneously
Three hydrants 3,501— 5,000 GPM flowing simultaneously
F. Hydrant Upgrade Polic
I. Existing single outlet 2 1/2" inch hydrants shall be upgraded to a double
outlet b" x 4" x 2 112" 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 2 112" 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-27
d. Similar to the type of construction which conforms to current
A.W. W.A. Standards
e. Provided with three-foot unobstructed clearance on all sides.
f. Provided with approved plastic caps
g. Painted with two coats of red primer and one coat of traffic signal
yellow for public hydrants and one coat of red for on-site hydrants,
with the exception of the stems and threads
2. Underground shut-off valves are to be located:
a. A minimum distance of 10 feet from the hydrant
b. A maximum distance of 25 feet from the hydrant
Exception: Location can be less than 10 feet when the water main is
already installed and the 10 -foot minimum distance cannot be
satisfied.
3. All new water mains, laterals, gate valves, buries, and riser shall be a
minimum of six inches inside diameter.
4. When sidewalks are contiguous with a curb and are five feet wide or less,
fire hydrants shall be placed immediately behind the sidewalk. Under no
circumstances shall hydrants be more than six feet from a curb line.
5. The owner -developer shall be responsible for making the necessary
arrangements with the local water purveyor for the installation of all
public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are not
provided (see Figures 1, 2, and 3 following on pages 11 and 12).
D-28
Barricade/Clearance Details
�• � r�
6" x 4" x 2112" �. OUTLETS
HYDRANT b� f �dc`)
� I `I I
361.
At
!,
\�
PLAN
FIRE HYDRANT BARRICADES
(TYPICAL)
Figure 2
CONCRETE CAP
6' BARRICADE POST
CONCRETE FILLED
MIN. 4" DIA. SCHEDULE 40
a' MIN
STEEL. SEE NOTE #1
CONCRETE
y"\11:=�i %!_,tr�\!f,_:Y=✓
f -\\rte/,
/r,
u✓
-
31
9. .
ii (Ksri
n°
2'
.i W MIN.
V
�.
v
4S}cil:
C7 � t
"moo �� 4t
y.-...
/
1�
Figure 1
�• � r�
6" x 4" x 2112" �. OUTLETS
HYDRANT b� f �dc`)
� I `I I
361.
At
!,
\�
PLAN
FIRE HYDRANT BARRICADES
(TYPICAL)
Figure 2
BARRICADE N
Figure 3 —
6" x 4" x 2 1/21,
Notes: HYDRANT
1. Constructed of steel not less th faux inches in diame r, six inches if heavy truck
traffic is anticipated, schedule 40 steel and concrete filled.
2. Posts shall be set not leo than three feet deep in a concrete footing of not less than 15
inches in diameter, with the top of the posts not less than three feet above ground and
not less than three feet from the hydrant
3. Posts, fences, vehicles, growth, trash storage and other materials or things shall not be
placed or kept near fire hydrants in a manner that would prevent fire hydrants from
being immediately discernible.
4. If hydrant is to be barricaded, no barricade shall be constructed in front of the hydrant
outlets (Figure 2, shaded area).
5. The exact location of barricades may be changed by the field inspector during a field
inspection.
6. The steel pipe above ground shall be painted a minimum of two field coats of primer.
7. Two finish coats of "traffic signal yellow" shall be used for fire hydrant barricades.
S. 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.
D-30
H. Private fire brotection systems for rural commercial and industrial development
Where the standards of this regulation cannot be met for industrial and commercial
developments in rural areas, alternate proposals which meet NFPA Standard 1142 may
be submitted to the Fire Marshal for review. Such proposals shall also be subject to
the following:
1. The structure is beyond 3,000 feet of any existing, adequately -sized water
system.
a. Structures within 3,000 feet of an existing, adequately -sized water
system, but beyond a water purveyor service area, will be reviewed
on an individual basis.
2. The structure is in an area designated by the County of Los Angeles'
General Plan as rural non -urban.
I. Blue reflective hydrant markers replacement policy
1. Purpose: To provide information regarding the replacement of blue
reflective hydrant markers, following street construction or repair work.
a. Fire station personnel shall inform Department of Public Works
Road Construction Inspectors of the importance of the blue
reflective hydrant markers, and encourage them to enforce their
Department permit requirement, that streets and roads be returned to
their original condition, following construction or repair work.
b. When street construction or repair work occurs within this
Department's jurisdiction, the nearest Department of Public Works
Permit Office shall be contacted. The location can be found by
searching for the jurisdiction office in the "County of Los Angeles
Telephone Directory" under "Department of Public Works Road
Maintenance Division." The importance of the blue reflective
hydrant markers should be explained, and the requirement
encouraged that the street be returned to its original condition, by
replacing the hydrant markers.
D-31
TABLE 1 *
BUILDING SIZE
(First floor area)
Fire Flow* (1) (2)
Duration
Hydrant Spacing
Under 3,000
sq. ft.
1,000 GPM
2 hrs
300 ft
3,000 to 4,999
sq. ft.
1,250 GPM
2 hrs
300 ft
5,000 to 7,999
sq. ft.
1,500 GPM
2 hrs
300 ft
8,000 to 9,999
sq. ft.
2,000 GPM
2 hrs
300 ft
10,000 to 14,999
sq. ft.
2,500 GPM
2 hrs
300 ft
15,000 to 19,999
sq. ft.
3,000 GPM
3 hrs
300 ft
20,000 to 24,999
sq. ft.
3,500 GPM
3 hrs
300 ft
25,000 to 29,999
sq. ft.
4,000 GPM
4 hrs
300 ft
30,000 to 34,999
sq. ft.
4,500 GPM
4 hrs
300 ft
35,000 or more
sq. ft.
5,000 GPM
5 hrs
300 ft
* See applicable footnotes below:
(FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL
PRESSURE)
(1) Conditions requiring additional fire flow.
a. Each story above ground level - add 500 GPM per story.
b. Any exposure within 50 feet - add a total of 500 GPM.
C. Any high-rise building (as determined by the jurisdictional building code) the fire
flow shall be a minimum of 3,500 GPM for 3 hours at 20 psi.
d. Any flow may be increased up to 1,000 GPM for a hazardous occupancy.
(2) Reductions in fire flow shall be cumulative for type of construction and a fully
sprinklered building. The following allowances and/or additions may be made to
standard fire flow requirements:
a. A 25% reduction shall be granted for the following types of construction: Type I-
F.R, Type 1I-F.R., Type It 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-32
EXHIBIT "E"
SMMC ARTICLE 9 (PLANNING AND ZONING)
On file with the City Clerk
I.i_ _9_ _ r
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:
1. Purpose. The purpose of the Local Hiring Policy is to facilitate the employment by
Developer and its contractors at the Project of residents of the City of Santa Monica (the
"'Targeted Job Applicants"), and in particular, those residents who are "Low -Income
Individuals" (defined below) 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.
c. 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 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.
F-1
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 family income published from time to time by
HUD for the Los Angeles -Long Beach Metropolitan Statistical Area.
e. "On -Site Jobs" means all jobs by a Contractor under a Contract for which at least
fifty percent (50%) of the work hours for such job requires the employee to be at
the Project site, regardless of whether such job is in the nature of an employee or
an independent contractor. On -Site Jobs shall not include jobs at the Project site
which will be performed by the Contractor's established work crew who have not
been hired specifically to work at the Project site.
4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit"F-1."
the Local Hiring Policy provides that the Targeted Job Applicants shall be considered for
each On -Site Job in the following order of priority:
a. First Priority: Any resident of a household with no greater than 80% Median
Income that resides within the Low and Moderate Income Areas identified in
Figure 3-12 of the City of Santa Monica's 2013-2021 Housing Element;
b. Second Priori1y: Any resident of a household with no greater than 80% Median
Income that resides within the City; and
C. Third Priority: Any resident of a household with no greater than 80% Median
Income that resides within a five (5) mile radius of the project site.
5. Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs related to
the construction of the Project, by Developer and its Contractors.
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 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.
F-2
(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 .lob 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.
Contactors are not precluded from advertising regionally or nationally for employees in
addition to its local outreach efforts.
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 ffF-2ff
LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT
Local Hiring Policy. For Permanent Employment. The Developer (if an Operator) or
Commercial Operator shall implement a local hiring policy (the "Local Firing Policy"),
consistent with the following guidelines;
1. Purpose. The purpose of the Local Hiring Policy is to facilitate the employment by the
commercial tenants of the Project of residents of the City of Santa Monica (the
"'Targeted Job Applicants"), and in particular, those residents who are "Low -Income
Individuals" (defined below) by ensuring Targeted Job Applicants are aware of Project
employment opportunities and have a fair opportunity to apply and compete for such
jobs. The goal of this policy is local hiring.
2. Findings.
a. Approximately 73,000-74,000 individuals work in the City. The City has a
resident labor force of approximately 57,300. However, only about one-third
(32.2 percent) of the City's resident labor force works at jobs located in the City,
with the balance working outside of the City. Consequently, a significant portion
of the City's resident and non-resident work force is required to commute long
distances to find work, causing increased traffic on state highways, increased
pollution, increased use of gas and other fuels and other serious environmental
impacts.
b. Due to their employment outside of the City, many residents of the City are
forced to leave for work very early in the morning and return late in the evening,
often leaving children and teenagers alone and unsupervised during the hours
between school and the parent return from work outside the area.
C. Absentee parents and unsupervised youth can result in increased problems for
families, communities and the City as a whole, including, but not limited to,
increased crime, more frequent and serious injuries, poor homework
accomplishments, failing grades and increased high school dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are defined as
low-income households or lower, with eleven percent of these households defined
as extremely low income and eight percent very low income. Approximately
7.6% of the City's residents are unemployed.
e. By ensuring that Targeted Job Applicants are aware of and have a fair opportunity
to compete for Project jobs, this local hiring policy will facilitate job opportunities
to City residents which would expand the City's employment base and reduce the
impacts on the environment caused by long commuting times to jobs outside the
area.
F-4
3. Definitions.
a. "Low Income Individual" means a resident of the City of Santa Monica whose
household income is no greater than 80% of the Median Income.
b. "Median Income" means the median family income published from time to time by
HUD for the Los Angeles -Long Beach Metropolitan Statistical Area.
C. "On -Site Jobs" means all jobs on the Project site within the non-residential uses
of greater than 1,500 gross square feet, regardless of whether such job is in the
nature of an employee or an independent contractor.
d. "Commercial Operator" means the operators of non-residential uses on the
Project site.
4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit "F-21"
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 Prior: 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
Third Priority: Any resident of a household with no greater than 80% Median
Income that resides within a five (5) mile radius of the project site.
For purposes of this Local Hiring Policy, the Commercial Operator is authorized to rely
on the most recent year's income tax records (W-2) and proof of residency (e.g. driver's
license, utility bill, voter registration) if voluntarily submitted by a prospective job
applicant for purposes of assessing a Targeted Job Applicant's place of residence and
11.1.01431lia
Coverage. The Local Hiring Policy shall apply to all hiring for On -Site Jobs.
Notwithstanding the foregoing, the Local Hiring Policy shall not apply to temporary
employees utilized while a permanent employee is temporarily absent or while a
replacement is being actively sought for a recently -departed permanent employee.
Furthermore, the Local Hiring Policy shall not preclude the re -hiring of a prior employee
or the transfer of an existing employee from another location.
6. Recruitment.
a. Local Hiring Goal — The Developer has established a local hiring goal of 30% of
the total full and part-time jobs in the Project being held by Santa Monica
residents. There shall be no penalties to the Developer, nor shall the Developer be
deemed to be in default under the Development Agreement, if such goal is not
F-5
achieved. The Developer shall report its actual local hiring results to the City as
part of its annual reports as mandated by Section 10.2 of the Development
Agreement. The annual report shall include the following information:
(i) First source hiring organizations that were contacted;
(ii) How many referrals from first source hiring organizations were
interviewed;
(iii) How many Targeted Job Applicants were hired;
(iv) Any community activities related to recruitment and local hiring that took
place in the past calendar year, and;
(v) Recruitment initiatives planned for the following calendar year.
b. Advanced Local Recruitment - Initial Hiring for New Business. So that Targeted
Job Applicants are made aware of the availability of On -Site Jobs, at least 30 days
before recruitment ("Advanced Recruitment Period") is opened up to general
circulation for the initial hiring by a new business, the Commercial Operator shall
advertise available On -Site Jobs in the Santa Monica Daily Press, or Santa
Monica Police Activity League or similar organization, or similar local media and
electronically on a City -sponsored website, if such a resource exists. In addition,
the Commercial Operator shall consult with and provide written notice to at least
two first source hiring organizations, which may include but are not limited to the
following:
(i) Local first source hiring programs
(ii) Trade unions
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non-profit organizations involved in referring eligible applicants for
job opportunities
The Commercial Operator shall hold the positions open for no more than 30 days
in order to allow for referrals from the first source hiring organizations. The
Commercial Operator shall review information provided by the selected
organizations with respect to all applicants referred by such organizations and
interview those individuals, who, following a review of such information, are
determined by the Commercial Operator to meet the Commercial Operator's
written minimum qualifications for the position. The Commercial Operator shall
maintain a written record explaining the reasons for not selecting any individual
referred to Commercial Operator by the selected organizations who was
interviewed by Commercial Operator for the position.
F -b
C. Advanced Local Recruitment - Subsequent Hiring. For subsequent employment
opportunities, the Advanced Recruitment Period for Targeted Job Applicants can
be reduced to at least 7 days before recruitment is opened up to general
circulation. Alternatively, Commercial Operator may also use an established list
of potential Targeted Job Applicants of not more than one year old.
d. Obligations After Completion of Advanced Recruitment Period. Once these
advanced local recruitment obligations have been met, the Commercial Operator
is not precluded from advertising regionally or nationally for employees.
7. Hiring. The Commercial Operator shall consider in good faith all applications submitted
by Targeted Job Applicants for On -Site Jobs in accordance with their normal practice to
hire the most qualified candidate for each position and shall be make good faith efforts to
hire Targeted Job Applicants when such Applicants are most qualified or equally
qualified as other applicants. The City acknowledges that the Commercial Operator shall
determine in their respective subjective business judgment whether any particular
Targeted Job Applicant is qualified to perform the On -Site Job for which such Targeted
Job Applicant has applied.
8. Proactive Outreach. Developer shall designate a "First -Source Hiring Coordinator"
(FHC) that shall manage all aspects of the Local Hiring Policy. The FHC shall be
responsible for actively seeking partnerships with local first -source hiring organizations
prior to employment opportunities being available. The FHC shall also be responsible for
encouraging and making available information on first -source hiring to respective
commercial tenants of the Project. The FHC shall contact new employers on the Project
site to inform them of the available resources on first -source hiring. In addition to
implementation of the Local Hiring Policy, the FHC can have other work duties unrelated
to the Local Hiring Policy.
9. Term. The Local Hiring Policy shall apply for the life of the Project.
10. Condition of Lease. Developer shall write the requirements of this program into any
leases executed with Employers. The FHC shall reach out to Employers not less than
once each calendar quarter to remind them of the programs and policies. Employers shall
have ultimate responsibility for adherence to the program guidelines. Failure of an
Employer to comply with the requirements of this program shall not constitute a Default
by any Developer under this Agreement so long as such Employer's lease requires such
compliance and such Developer is actively pursuing all necessary enforcement actions to
bring such Employer into compliance with this lease provision.
F-7
F+XS3T7139'T "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;
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;
In. Provide a construction -period parking plan which shall minimize use of public
streets for parking;
n. List a designated on-site construction manager;
G-1
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.
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.
G-2
Project Coordination Elements That Shall Be Implemented Prior To Commencement of
Construction
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.
C. 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 the 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.
All active portions of the construction site shall be sufficiently watered three
times a day to prevent excessive amounts of dust.
G-3
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.
C. 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 PM10
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
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.
G-4
Noise Attenuation
6. All diesel equipment shall be operated with closed engine doors and shall be equipped
with factory -recommended mufflers.
7. 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 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
G-5
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.
G-6
EXHIBIT "H"
ASSIGNMENT AND ASSUMPTION AGREEMENT
Recording Requested By and
When Recorded Mail To:
Armbruster & Goldsmith, LLP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Attn: Howard Weinberg, Esq.
ASSIGNMENT AND ASSUMPTI®N AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and
entered into by and between , a California limited liability
company ("Assignor"), and , a
("Assignee").
A. The City of Santa Monica ("City") and Assignor entered into that certain
Development Agreement dated , 201_ (the "Development Agreement"), with
respect to the real property located in the City of Santa Monica, State of California more
particularly described in Exhibit "A" attached hereto (the "Project Site").
B. Assignor has obtained from the City certain development approvals and permits
with respect to the development of the Project Site, including without limitation, approval of the
Development Agreement 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:
I. 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
H-1
by Assignor under the Development Agreement and the Project Approvals with respect to the
Project Site.
3. Effective Date. The execution by City of the attached receipt for this Agreement
shall be considered as conclusive proof of delivery of this Agreement and of the assignment and
assumption contained herein. This Agreement shall be effective upon its recordation in the
Official Records of Los Angeles County, California, provided that Assignee has closed the
purchase and sale transaction and acquired legal title to the Project Site.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
dates set forth next to their signatures below.
"ASSIGNOR"
a California limited liability company
"ASSIGNEE"
FIM)
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
Planning Director
H-3
EXHIBIT "I"
ALCOHOL CONDITIONS
(1) The primary use of the Restaurant premises shall be for sit-down meal service to
patrons.
(2) If a counter service area is provided in the Restaurant, food service shall be
available at all hours the counter is open for patrons, and the counter area shall not function as a
separate bar area.
(3) Window or other signage visible from the public right-of-way that advertises the
Restaurant's beer or alcohol shall not be permitted.
(4) Customers shall be permitted to order meals at all times and in all areas of the
Restaurant where alcohol is being served. The Restaurant shall serve food to patrons during all
hours the restaurant is open for customers.
(5) The Restaurant shall maintain a kitchen or food -serving area in which a variety of
food is prepared on the premises.
(6) Take out service from the Restaurant shall be only incidental to the primary sit-
down use and does not include for the sale or dispensing of alcoholic beverages or beer or wine.
(7) No alcoholic beverages shall be sold or dispensed for consumption beyond the
Restaurant premises.
(S) Except for special events, alcohol shall not be served by the Restaurant in any
disposable containers such as disposable plastic or paper cups.
(9) No more than three television screens including video projectors or similar
audio/visual devices shall be utilized on the premises. None of these televisions or projection
surfaces shall exceed 60 inches measured diagonally;
(10) No video or other amusement games shall be permitted in the Restaurant.
(11) Entertainment may only be permitted in the manner set forth in SMMC Section
9.31.290, Restaurants with Entertainment, or any successor thereto.
(12) The primary use of any outdoor dining area shall be for seated meal services.
Patrons who are standing in any outdoor seating area shall not be served.
(13) The Restaurant operation shall at all tunes be conducted in a manner not
detrimental to surrounding properties by reason of lights, noise, activities or other actions. The
Restaurant shall control noisy patrons leaving the Restaurant.
1-1
(14) The permitted hours of alcoholic beverage service shall be 9:OOAM to 11:00PM
Sunday through Thursday, 9:OOAM to 12:OOAM Friday through Saturday with complete closure
and all Restaurant employees vacated from the Building no later than one hour after permitted
hours of alcoholic beverage service. All alcoholic beverages must be removed from the outdoor
dining areas no later than 1 O:OOPM Sunday through Thursday and I LOOPM Friday and Saturday.
No after hours operation of the Restaurant is permitted.
(15) No more than thirty-five percent (35%) of the Restaurant's total gross revenues
per year shall be from alcohol sales. The Restaurant operator shall maintain records of gross
revenue sources which shall be submitted annually to the City's Planning Division at the
beginning of the calendar year and also available to the City and the ABC upon request.
(16) Bottle service shall mean the service of any full bottle of liquor, wine, or beer of
more than 375 ml, along with glass ware, mixers, garnishes, etc., in which patrons are able to
then make their own drinks or pour their own wine or beer. Liquor bottle service shall be
prohibited. Nine and beer bottle service shall not be available to patrons unless full meal service
is provided concurrent with the Bottle service. All food items shall be available from the full
service menu.
(17) No organized queuing of patrons at the entry or checking of identification to
control entry into and within the establishment shall be permitted. There shall not be any age
limitation imposed restricting access to any portion of the restaurant.
(18) The Restaurant shall not organize or participate in organized "pub-crawl" events
where participants or customers pre -purchase tickets or tokens to be exchanged for alcoholic
beverages at the restaurant.
(19) Establishments with amplified music shall be required to comply with Section
4.12, Noise, of the Santa Monica Municipal Code.
(20) Prior to occupancy a Restaurant security plan shall be submitted to the Chief of
Police for review and approval. The plan shall address both physical and operational security
issues.
(21) Prior occupancy the Restaurant operator shall submit a plan for approval by the
City regarding employee alcohol awareness training programs and policies. The plan shall
outline a mandatory alcohol -awareness training program for all Restaurant employees having
contact with the public and shall state management's policies addressing alcohol consumption
and inebriation. The program shall require all Restaurant employees having contact with the
public to complete an ABC -sponsored alcohol awareness training program within ninety days of
the effective date of the alcohol exemption determination. In the case of new Restaurant
employees, the employee shall attend the alcohol awareness training within ninety days of hiring.
In the event the ABC no longer sponsors an alcohol awareness training program, all Restaurant
employees having contact with the public shall complete an alternative program approved by the
City. The Restaurant operator shall provide the City with an annual report regarding compliance
1-2
with this requirement. The Restaurant operator shall be subject to any future citywide alcohol
awareness training program affecting similar establishments.
(22) Within thirty days from the date of submission of the written agreement, the
Restaurant applicant shall provide a copy of the signed agreement to the local office of the State
Department of Alcoholic Beverage Control (ABC).
(23) Prior to occupancy, the Restaurant operator shall submit a plan describing the
establishment's designated driver program, which shall be offered by the operator to the
Restaurant's patrons. The plan shall specify how the Restaurant operator will inform patrons of
the program, such as offering on the menu a free non-alcoholic drink for every party of two or
more ordering alcoholic beverages.
(24) Notices shall be prominently displayed urging patrons to leave the premises and
neighborhood in a quiet, peaceful, and orderly fashion and to please not litter or block driveways
in the neighborhood.
(25) Employees of the establishment shall walk a 100 -foot radius from the facility at
some point prior to 30 minutes after closing and shall pick up and dispose of any discarded
beverage containers and other trash left by patrons.
(26) The exemption shall apply to approved and dated plans, a copy of which shall be
maintained in the files of the City Planning Division. Project development shall be consistent
with such plans, except as otherwise specified in these conditions of approval. Minor
amendments to the plans shall be subject to approval by the City.
(27) The Restaurant operator authorizes reasonable City inspection of the Restaurant to
ensure compliance with the conditions set forth in this Exhibit "I" and will bear the reasonable
cost of these inspections as established by SMMC Section 2.72.010 and Resolution No. 9905
(CCS) of any successor legislation hereto. These inspections shall be no more intrusive as
necessary to ensure compliance with this Exhibit "I".
Acknowledgement of Restaurant Operator
I hereby agree to the above conditions of approval and acknowledge that failure to comply with
such conditions shall constitute grounds for potential revocation of the approval to dispense
alcoholic beverages.
Print Name and Title
Signature
I-3
Date
Recording Requested By,
City of Santa Monica
When Recorded Mail To:
City of Santa Monica
1901 Main Street, First Floor
Santa Monica, CA 90401
Attention: Housing Administrator
Space Above This Line For Recorders Use
No Recording Fee Required
Government Code Section 27383
AGREEMENT IMPOSING RESTRICTIONS
ON RENTS & OCCUPANCY OF REAL PROPERTY
THIS AGREEMENT IMPOSING RESTRICTIONS ON RENTS & OCCUPANCY
OF REAL PROPERTY, entered into this �_] day of [month, 20--], by and between
the CITY OF SANTA MONICA, a Municipal Corporation (hereinafter the "City"), and
1415NMS, LLC, a [California Limited Liability Company] (hereinafter the "Developer"), is
made with reference to the following:
RECITALS:
A. Developer is the owner of certain real property located at 1415 Stn Street in
the City of Santa Monica, in the County of Los Angeles, California (hereinafter referred
to as the "Subject Property"). The Subject Property is more particularly described in
Exhibit "A" which is attached hereto and incorporated herein by this reference.
B. Developer wishes to construct a six (6) story, eighty-four (84) foot mixed use
project consisting of 64 residential rental units (hereinafter referred to as the "Project")
The City has approved a Development Agreement for the Project, which requires this
AGREEMENT IMPOSING RESTRICTIONS ON RENTS & OCCUPANCY OF REAL
PROPERTY ("Agreement") to be fully executed, acknowledged, and recorded
concurrently with the Development Agreement. The City approved the Development
Agreement subject to the conditions of this Agreement, which are imposed for the
benefit of the City, the public and surrounding landowners and without which the
Development Agreement would not be approved.
C. The Project is subject to the covenants in the Development Agreement, and
the requirements of the City's Affordable Housing Production Program, Santa Monica
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Municipal Code Chapter 9.64, and the Administrative Guidelines for Chapter 9.64, as
they may be amended from time to time (all collectively, referenced herein as
"Affordability Restrictions"). The Developer has agreed to satisfy the Affordability
Restrictions by fully complying with this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. RECITALS.
The Recitals stated above, and any agreements between the City and Developer
referenced therein, including the Development Agreement, are hereby incorporated by
reference into this Agreement and adopted by the parties to this Agreement as true and
correct.
2. DEFINITIONS.
2.1 "Affordable Units" means dwelling units within the Project that are
available to and occupied by Fifty Percent Income Households and Eighty Percent
Income Households at Affordable Rent.
. - _
(a) For thirty percent income households, the product of thirty percent times
thirty percent of the area median income adjusted for household size appropriate for the
unit.
(b) For fifty percent income households, the product of thirty percent times fifty
percent of the area median income adjusted for household size appropriate for the unit.
(c) For eighty percent income households whose gross incomes exceed the
maximum incomes for fifty percent income households, the product of thirty percent
times sixty percent of the area median income adjusted for household size appropriate
for the unit.
2.3 "Area Median Income or AMI" means the median family income
published from time to time by the United States Department of Housing and Urban
Development ("HUD") for the Los Angeles -Long Beach Metropolitan Statistical Area.
2.4 "Eighty Percent Income Household" means a household whose gross
income does not exceed the eighty percent income limits applicable to the Los Angeles -
Long Beach Primary Metropolitan Statistical Area, adjusted for household size, as
published and periodically updated by HUD. Eighty Percent Income Households
include Fifty Percent Income Households.
2.5 "Fifty Percent income Household" means a household whose gross
income does not exceed the fifty percent income limits applicable to the Los Angeles -
Long Beach Primary Metropolitan Statistical Area, adjusted for household size, as
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published and periodically updated by HUD. Fifty percent income households include
Thirty Percent Income Households.
2.6 "Life of the Project" shall mean a period commencing on the date the
Certificate of Occupancy is issued for the Project and ending on the date which is fifty-
five (55) years from Certificate of Occupancy for the Project; provided, however, that if
the Project is damaged or destroyed and cannot be rebuilt in accordance with the
development standards permitted in this Agreement, then the Life of the Project shall be
deemed to have ended as of the date of such damage or destruction.
2.7 . "Rent"" has the same meaning as provided in title 25, section 6918 of the
California Code of Regulations, as amended from time to time in accordance with law.
2.8 "Thirty Percent Income Household" means a household whose gross
income does not exceed the thirty percent income limits applicable to the Los Angeles -
Long Beach Primary Metropolitan Statistical Area, adjusted for household size, as
published and periodically updated by HUD.
3. CONTRACT WITH CITY.
Developer hereby acknowledges that in consideration for the benefits accorded
to Developer under the Development Agreement, Developer has entered into this
Agreement with the City and agreed on behalf of itself and its successors and assigns
to abide by the terms of this Agreement. During the term of this Agreement, Developer
shall provide and maintain fourteen (14) Affordable Units on the Subject Property for
occupancy' by qualified households who meet the requirements specified in this
Agreement. The parties agree and acknowledge that this is a contract providing forms
of assistance to the Developer within the meaning of Civil Code Section 1954.52 (b) and
Government Code Section 65915 et seq.
4. DEVELOPER TO PROVIDE AND MAINTAIN FOURTEEN 14
AFFORDABLE UNITS.
(a) Upon issuance of a Certificate of Occupancy for the Project, Developer
shall provide and maintain fourteen (14) Affordable Units on the Subject Property, as
follows:
Eight (8) one -bedroom Affordable Units shall be available to and occupied by
Fifty Percent Income Households at Affordable Rent.
Two (2) two-bedroom Affordable Units shall be available to and occupied by Fifty
Percent Income Households at Affordable Rent.
One (1) Studio Affordable Unit shall be available to an occupied by Eighty
Percent Income Households at Affordable Rent.
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Three (3) two-bedroom Affordable Units shall be available to and occupied by
Eighty Percent Income Households at Affordable Rent.
Developer shall submit plans to the City's Building Official, identifying the unit
numbers and exact locations of all of the Affordable Units. The submittal of these plans
with the required identification of Affordable Units shall be a condition precedent to
Developer's obtaining a building permit for the Project.
(b) The Affordable Units shall be rental units and the maximum rent shall be
calculated pursuant to the formula set forth in Section 5 of this Agreement.
(c) The City shall issue a Certificate of Occupancy for the Project ("Certificate")
expressly contingent upon compliance with the terms of this Agreement. A valid
Certificate shall be required at all times to continue to use or occupy the Project. A
breach of this Agreement shall be grounds for revoking the Certificate. The City shall
provide reasonable notice and an opportunity to cure any breach of this Agreement prior
to revoking the Certificate.
5. TERMS FOR THE RENTAL OF THE AFFORDABLE UNITS.
The maximum Affordable Rent for the fourteen (14) Affordable Units on the
Subject Property shall be as follows:
(a) If the household is receiving a rental housing subsidy, the maximum
allowable rent shall be the lesser of the Affordable Rent calculated under subparagraph
(b) of this Section 5 or the payment standard authorized by the Santa Monica Housing
Authority.
(b) If the household is not receiving federal rental assistance as defined above,
the maximum allowable rent for the unit shall be calculated as follows:
For Fifty Percent Income Households
Area Median Income x 50% x Bedroom Adjustment Factor x 30% = Maximum
Affordable Rent (Annual).
For Eighty Percent Income Households
Area Median Income x 60% x Bedroom Adjustment Factor x 30% = Maximum
Affordable Rent (Annual).
The Maximum Allowable Rent figures must be divided by twelve to determine the
maximum allowable monthly rent.
The formula for the calculation of rents as of the date of this Agreement is as
follows:
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(c) Area Median Income - As periodically published by HUD, currently $64,800
(for a family of four).
(d) Bedroom Adjustment Factors
0 Bedroom
.7
1 Bedroom
.8
2 Bedroom
.90
3 Bedrooms 1.00
4 Bedrooms 1.08
(e) Affordable Rents 2015, to be updated annually1
Studio 1 -BR 2 -BR
Fifty Percent Income Household $567 $648 $729
Eighty Percent Income Household $680 $778 $875
(f) In the event the standards for establishing the monthly rental rate of the
Affordable Units set forth in Section 5 cease to exist, the parties shall substitute a
similar standard established by HUD or its successor governmental agency. If the
parties are unable to agree upon a substitute standard, the parties shall refer the choice
of the substitute standard to binding arbitration in accordance with the rules of the
American Arbitration Association.
(g) Minimum Occupancy Requirements
0 bedroom
1 bedroom
2 bedroom
3 bedrooms
4 bedrooms
1 occupant
1 occupants
2 occupants
3 occupants
5 occupants
6. HOUSEHOLD ADJUSTMENT FACTORS.
The Household Adjustment Factors are as follows:
1 person
0.7
2 persons
0.8
3 persons
0.9
4 persons
1.0
5 persons
1.08
6 persons
1.16
7 persons
1.24
1 These numbers include the utility allowance adopted by the City's Housing Authority for 2015, and is
adjusted annually thereafter.
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8 persons 1.32
Developer agrees to make reasonable efforts to rent vacant Affordable Units
within sixty days.
7. TENANT SELECTION.
Developer shall select households from the City -developed list of income
qualified households. Only households selected from the City -developed list of income
qualified households shall occupy any of the Affordable Units.
8. CITY APPROVAL OF DOCUMENTS.
The Conditions, Covenants and Restrictions (CC&R's), if any, for the Subject
Property shall include reference to all applicable obligations and duties of the parties
created by this Agreement. The City Attorney of the City of Santa Monica shall approve
as to form the CC&R's prior to recordation of the final subdivision or parcel map for the
Subject Property.
Developer shall rent the Affordable Units pursuant to the terms and conditions of
a lease or rental agreement approved by the City. At least ninety days prior to the
expected completion date, Developer shall submit to the City Housing Division for
review a copy of the lease agreement to be used. In addition to any other provision
required by the City to ensure compliance with Chapter 9.64 and the Administrative
Guidelines for Chapter 9.64, as they may be amended from time to time, said lease or
rental agreement shall contain a provision prohibiting subleasing of the Affordable Units
or revising the composition of the household without Developer's permission.
Developer shall not approve any change that renders the Affordable Units in
noncompliance with the household income requirements of this Agreement. The
addition to the household of minor children, spouse, or registered domestic partner shall
not be deemed a change in the household requiring Developer's prior approval pursuant
to this Section.
Developer shall lease the Affordable Units concurrently with all other units in the
Project so as to avoid prolonged vacancy of the Affordable Units during lease -up of the
Project.
9. ATTORNEYS' FEES AND COSTS.
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or breach thereof, the prevailing party shall
be entitled to recover from the losing party reasonable expenses, attorneys' fees and
costs.
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10. APPOINTMENT OF OTHER AGENCIES.
The City may designate, appoint or contract with any other public agency to
perform City's obligations under this Agreement.
11. SEVERABILITY.
In the event any limitation, condition, restriction, covenant or provision contained
in this Agreement is held to be invalid, void or unenforceable by any court of competent
jurisdiction, the remaining portions of this Agreement shall, nevertheless, be and remain
in full force and effect.
12. NOTICES.
All notices required under this Agreement shall be sent by certified mail, return
receipt requested, to the following addresses:
TO THE CITY OF SANTA MONICA:
TO THE DEVELOPER:
City of Santa Monica
Planning and Community Development
Department
1685 Main Street, Room 212
Santa Monica, California 90401
Attention: Director, Planning and
Community Development Department
[enter developer name/address]
Any party may change the address to which notices are to be sent by notifying
the other parties of the new address, in the manner set forth above.
13. HOLD HARMLESS.
As between the City and the Developer, the Developer is deemed to assume
responsibility and liability for, and the Developer shall indemnify and hold harmless the
City and its City Council, boards and commissions, officers, agents, servants or
employees from and against any and all claims, loss, damage, charge or expense,
whether direct or indirect, to which the City or its City Council, boards and commissions,
officers, agents, servants or employees may be put or subjected, by reason of any
damage, loss or injury of any kind or nature whatever to persons or property caused by
or resulting from or in connection with any act or action, or any neglect, omission or
failure to act when under a duty to act, on the part of the Developer or any of
Developer's officers, agents, servants, employees or subcontractors in his or their
performance hereunder.
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14. BURDEN TO RUN WITH PROPERTY.
The covenants and conditions herein contained shall apply to and bind the heirs,
successors and assigns of all the parties hereto and shall run with and burden the
Subject Property for the benefit of the City, the public and surrounding landowners, until
terminated in accordance with the provisions hereof. Developer shall expressly make
the conditions and covenants contained in this Agreement a part of any deed or other
instrument conveying any interest in the Subject Property.
15. SALE OR CONVERSION OF PROPERTY.
In the event of sale or conversion of the subject property, any Conditions,
Covenants and Restrictions (CC&R's) for the property, shall incorporate by reference all
obligations and duties of the parties created by this Agreement. Reporting obligations
set forth in Section 24 below, shall be set forth in the CC&R's if any, for the project.
16. PROHIBITION AGAINST DISCRIMINATION.
Developer agrees not to discriminate against any actual or potential occupant of
the subject property on the basis of sex, race, color, religion, ancestry, national origin,
sexual orientation, age, pregnancy, marital status, handicap, HIV, family composition, or
the potential or actual occupancy of minor children. Developer further agrees to take
affirmative action to ensure that no such person is discriminated against for any of the
aforementioned reasons.
17. STANDING TO ENFORCE AGREEMENT.
Violation of this Agreement may be enjoined, abated or remedied by appropriate
legal proceeding in a court of competent jurisdiction by any aggrieved party, including
but not limited to, the parties hereto, or their respective successors, heirs and assigns.
The right to specific performance of this Agreement shall be an appropriate
remedy for a breach of this Agreement because of the uniqueness of the Property and
the inherent difficulty in calculating adequate damages.
18. INTEGRATED AGREEMENT.
This Agreement constitutes the entire agreement between the parties and no
modification hereof shall be binding unless reduced to writing and signed by the parties
hereto.
19. APPLICABLE LAW.
All questions pertaining to the validity and interpretation of this Agreement shall
be determined in accordance with the laws of California applicable to contracts made to
and to be performed within the State.
20. CITY AUTHORITY TO ENFORCE LAW
The obligation of the Owner pursuant to this Agreement are in addition to, and in
no way limit, the authority of the City to enforce all laws and regulation applicable to the
Subject Property. Nothing in this Agreement shall limit the authority of the City to take
appropriate action to enforce the terms of any permit issued by the City relating to the
Subject Property.
21. DURATION OF AGREEMENT.
This Agreement shall terminate and become null and void after the greater of
fifty-five (55) years from issuance of the Certificate of Occupancy or the Life of the
Project and shall survive termination of the Development Agreement. In the event of any
conflict between the provisions of this Agreement and the Development Agreement, the
most stringent interpretation favoring the City shall prevail.
22. AMENDMENT OF AGREEMENT.
This Agreement, and any Section, subsection, or covenant contained herein,
may be terminated or amended only upon the written consent of all parties hereto.
23. RECORDING OF AGREEMENT.
The parties hereto shall cause this Agreement to be recorded concurrently with
the Development Agreement in the Official Records of the County of Los Angeles.
24. YEARLY REPORT.
Developer shall issue a written report to City on an annual basis commencing
one year from the date of issuance of the Certificate of Occupancy and continuing
thereafter throughout the term of the Agreement. The report shall state the rent level
then being charged for the Affordable Units, whether the occupants are assisted by a
rental housing subsidy program, the number of occupants in the household, whether
there have been any changes in the composition of the household, whether any
vacancies have occurred during the reporting year, any changes in income of the
residents of the affordable units, and such other information as may be required by City
staff.
25. COMPLIANCE MONITORING.
Pursuant to City of Santa Monica Resolution 10635 (CCS) and Santa Monica
Municipal Code Sections 9.64.050 and 9.64.060, Developer shall pay the reasonable
regulatory costs of ensuring compliance with this Agreement through a Compliance
Monitoring Fee, adopted and approved on November 22, 2011 and administratively
revised on an annual basis.
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26. EARLY TERMINATION.
Notwithstanding Section 21, this Agreement shall terminate automatically and
concurrently with the Development Agreement, if the Development Agreement is
terminated because the Developer, or any of its successors and assigns, has not been
issued a building permit for the Project by the "Outside Building Permit Issuance Date"
as defined in the Development Agreement.
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26. AUTHORITY TO EXECUTE.
The undersigned declare they have full authority to execute this Agreement on
behalf of Developer, and bind Developer to all the terms and conditions contained
herein.
[Note: document text needs to be part of signature page; set hard page breaks
when necessary]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ATTEST:
Sarah Gorman
"CITY„
CITY OF SANTA MONICA
a Municipal Corporation
City Clerk By:
Rick Cole
APPROVED AS TO FORM: City Manager
SANTA MONICA CITY ATTORNEY
MARSHA JONES MOUTRIE
City Attorney "DEVELOPER"
[Name], LLC
a California limited liability company
[name, and title, i.e. Manager, trustee,
owner etc]
Pre are _by: Planner Name
Reference Number; XXDED-XXX
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EXHIBIT A
LOT ------------BLOCK --------- TRACT ____________ IN THE CITY OF SANTA MONICA,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK XX PAGE XXX, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
,Ks111i• Ir>r-�
(Insert Complete Legal Description)
01
J-12
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracv, or validity of that document.
STATE OF
COUNTY OF
On
personally appeared
before me,
ss:
(insert name and title of the officer)
a Notary Public,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
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(Seal)
Approved and adopted this 27th day of October; 2015.
IL,X-Ua�—
Kevin
McKeown, 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. 2495 (CCS) had its introduction on October 13,
2015, and was adopted at the Santa Monica City Council meeting held on
October 27, 2015, by the following vote.-
Ayes:
ote:
Ayes: Councilmembers: Davis, Himmelrich, O'Connor, Winterer
Mayor McKeown, Mayor Pro Tem Vazquez
Noes: Councilmembers: None
Absent: Councilmembers: O'Day
A summary of Ordinance No. 2495 (CCS) was duly published pursuant to
California Government Code Section 40806.
ATTEST:
Sarah P. Gorman, City Clerk