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
CITY OF SANTA MONICA,
PALMETTO HOSPITALITY OF SANTA MONICA I, LLC
1550 5TH STREET LLC
TABLE OF CONTENTS
Article 1 Definitions........................................................................................................ 3
Article 2 Description of the Project................................................................................. 5
2.1 General Description.......................................................................................... 5
2.2 Principal Components of the Project............................................................... 6
2.3 No Obligation to Develop................................................................................. 6
2.4 Vested Rights.................................................................................................... 7
2.5 Permitted Uses.................................................................................................. 9
2.6 Alcoholic Beverage Permits........................................................................... 10
2.7 Significant Project Features and LUCE Community Benefits...................... 11
2.8 Parking............................................................................................................ 27
2.9 Design ............................................................................................................ 27
Article 3 Construction.................................................................................................... 28
3.1 Construction Mitigation Plan......................................................................... 28
3.2 Construction Hours......................................................................................... 28
3.3 Outside Building Permit Issuance Date......................................................... 28
3.4 Construction Period........................................................................................ 29
3.5 Tiebacks.......................................................................................................... 29
3.6 Construction Staging...................................................................................... 29
3.7 Damage or Destruction................................................................................... 30
3.8 Completed and Final Landmarks Commission Review................................. 30
Article 4 Project Fees, Exactions, Mitigation Measures and Conditions..................... 30
4.1 Fees, Exactions, Mitigation Measures and Conditions.................................. 30
4.2 Conditions on Modifications.......................................................................... 30
4.3 Implementation of Mitigation Measures and Conditions of Approval ........ 30
Article 5 Effect of Agreement on City Laws and Regulations..................................... 31
5.1 Development Standards for the Property; Existing Regulations................... 31
5.2 Permitted Subsequent Code Changes............................................................. 32
5.3 Common Set of Existing Regulations............................................................ 33
5.4 Conflicting Enactments.................................................................................. 33
5.5 Timing of Development................................................................................. 34
Article 6 Architectural Review Board........................................................................... 34
6.1 Architectural Review Board Approval........................................................... 34
6.2 Expiration of ARB Approval.......................................................................... 34
Article 7 City Technical Permits................................................................................... 34
7.1 Definitions...................................................................................................... 34
7.2 Diligent Action by City.................................................................................. 35
7.3 Conditions for Diligent Action by the City.................................................... 35
7.4 Duration of Technical City Permits............................................................... 36
Article 8 Amendment and Modification....................................................................... 37
8.1 Amendment and Modification of Development Agreement......................... 37
Article 9 Term................................................................................................................ 37
9.1 Effective Date................................................................................................. 37
9.2 Term................................................................................................................ 37
Article 10 Periodic Review of Compliance........................................................................... 37
10.1 City Review.................................................................................................... 37
10.2 Evidence of Good Faith Compliance............................................................. 37
10.3 Information to be Provided to Developer....................................................... 38
10.4 Notice of Breach; Cure Rights....................................................................... 38
10.5 Failure of Periodic Review............................................................................. 38
10.6 Termination of Development Agreement...................................................... 38
10.7 City Cost Recovery......................................................................................... 38
Article 11 Default............................................................................................................ 39
11.1 Notice and Cure.............................................................................................. 39
11.2 Remedies for Monetary Default..................................................................... 39
11.3 Remedies for Non-Monetary Default............................................................. 40
11.4 Modification or Termination Agreement by City.......................................... 42
11.5 Cessation of Rights and Obligations.............................................................. 43
11.6 Completion of Improvements......................................................................... 43
Article 12 Mortgagees..................................................................................................... 43
12.1 Encumbrances on the Property....................................................................... 43
Article 13 Transfers and Assignments............................................................................ 45
13.1 Transfers and Assignments............................................................................ 45
13.2 Release Upon Transfer................................................................................... 46
Article 14 Indemnity to City............................................................................................ 46
14.1 Indemnity........................................................................................................ 46
14.2 City’s Right to Defense.................................................................................. 47
Article 15 General Provisions.......................................................................................... 47
15.1 Notices............................................................................................................ 47
15.2 Entire Agreement; Conflicts.......................................................................... 48
15.3 Binding Effect................................................................................................. 48
15.4 Agreement Not for Benefit of Third Parties.................................................. 49
15.5 No Partnership or Joint Venture..................................................................... 49
15.6 Estoppel Certificates...................................................................................... 49
15.7 Time................................................................................................................ 49
15.8 Excusable Delays............................................................................................ 49
15.9 Governing Law............................................................................................... 51
15.10 Cooperation in Event of Legal Challenge to Agreement............................... 51
15.11 Attorneys’ Fees............................................................................................... 51
15.12 Recordation..................................................................................................... 51
15.13 No Waiver....................................................................................................... 51
15.14 Construction of this Agreement..................................................................... 52
15.15 Other Governmental Approvals..................................................................... 52
15.16 Venue ............................................................................................................. 53
15.17 Exhibits........................................................................................................... 53
15.18 Counterpart Signatures................................................................................... 54
15.19 Certificate of Performance............................................................................. 54
15.20 Interest of Developer and Property Owner..................................................... 54
15.21 Operating Memoranda.................................................................................... 54
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer... 55
15.23 Not a Public Dedication.................................................................................. 55
15.24 Other Agreements........................................................................................... 55
15.24 Severability and Termination......................................................................... 55
Exhibit “A” Legal Description
Exhibit “B” Project Plans
Exhibit “C” Permitted Fees and Exactions
Exhibit “D” Mitigation Measures and Conditions of Approval
Exhibit “E” SMMC Article 9 (Planning and Zoning)
Exhibit “F-1” Local Hiring Program for Construction
Exhibit "F-2" ............................... Local Hiring Program for Permanent Employment
Exhibit "G-1" Hotel Conditions to Dispense Alcohol in Sundry Market
Exhibit "G-2" Hotel Conditions to Dispense Alcohol in Common Area
Exhibit “H” Restaurant Conditions to Dispense Alcohol
Exhibit “I” Parking and Deliveries Management Plan
Exhibit “J [Reserved]
Exhibit “K” Construction Mitigation Plan
Exhibit “L” Assignment and Assumption Agreement
This Development Agreement (“Agreement”), dated ____________, 2013 ("Effective Date"), is entered into by and between PALMETTO HOSPITALITY OF SANTA MONICA I, LLC, a California limited liability company (“Developer”), 1550 5TH STREET LLC, a California limited liability company (the “Owner”), and the CITY OF SANTA MONICA, a municipal corporation organized and existing pursuant to the laws of the State of California and the Charter of the City of Santa Monica (the “City”), with reference to the following facts:
A. Pursuant to California Government Code Section 65864 et seq., Chapter 9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No. 2356 (collectively, the “Development Agreement Statutes”), the City is authorized to enter into binding development agreements with persons or entities having a legal or equitable interest in real property for the development of such real property.
B. Owner is the owner of approximately 22,500 square feet of land located in the City of Santa Monica, State of California, commonly known as 1550 and 1554-58 Fifth Street and 417 Colorado Avenue, as more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference (the “Property”). The Property is currently developed with a building containing three wings: 1550 Fifth Street (an auto repair shop), 1554-1558 Fifth Street (another auto repair shop) and 417 Colorado Avenue (commercial offices).
C. Developer has an equitable interest in the Property. Developer has a contractual right from Owner to develop and operate a hotel project on the Property pursuant to a ground lease of the Property.
D. Developer has entered into a 25-year franchise agreement with Marriott to operate a Courtyard by Marriott on the Property.
E. The Property is located within the Downtown Core land use designation under the City’s recently adopted Land Use and Circulation Element of its General Plan (the “LUCE”). The Property is located within the C3-C Downtown Overlay District under the City’s Zoning Ordinance.
F. Developer desires to demolish the existing structures and construct a new six-story building on the Property with a subterranean parking garage. The new building will be used primarily as a moderately priced hotel, together with other separately leasable commercial space on portions of the ground floor intended for commercial uses as provided in this Agreement.
G. On July 14, 2011, Developer filed an application for a Development Agreement, pursuant to Santa Monica Municipal Code (“SMMC”) Section 9.48.020 (the “Development Application”). The Development Application was designated by the City as Application No. DEV 11-010. The Development Application is for a mixed-use, limited-service hotel project that also includes separately leasable commercial space on portions of the ground floor, and is more fully described in this Agreement (the “Project”).
H. On April 26, 2011, the City Council adopted Interim Ordinance No. 2356 ("IZO"). The City Council has extended and/or modified the IZO on several occasions thereafter. The IZO prohibits the issuance of permits for development projects which would exceed 32 feet in height in the Downtown Core as delineated in the Land Use Designation Map approved by the City Council on July 6, 2010 unless developed pursuant to a development agreement adopted in accordance with SMMC Chapter 9.48. Adoption of this Agreement will allow for the issuance of permits for the Project.
I. Following filing of the Development Application, the City prepared and circulated for public review and comment a Draft Environmental Impact Report (the “DEIR”) pursuant to the California Environmental Quality Act (“CEQA”) and designated SCH No. 2012041084. Following close of the comment period, the City prepared a Final Environmental Impact Report pursuant to CEQA (the “FEIR”).
J. The primary purpose of the Project is to establish a new limited-service, mixed-use hotel project that also includes separately leasable commercial space on portions of the ground floor. Consistent with the LUCE, the Project is designed to be pedestrian-friendly and is located across the street from the forthcoming Exposition Light Rail terminus station in the City’s Downtown. The Parties desire to enter into this Agreement in conformance with the Development Agreement Statutes in order to achieve the development of the Project on the Property.
K. The City Council has determined that a development agreement is appropriate for the proposed development of the Property. This Agreement will (1) eliminate uncertainty in planning for the Project and result in the orderly development of the Project, (2) assure installation of necessary improvements on the Property, (3) provide for public infrastructure and services appropriate to development of the Project, (4) preserve substantial City discretion in reviewing subsequent development of the Property, (5) secure for the City improvements that benefit the public, and (6) otherwise achieve the goals and purposes for which the Development Agreement Statutes were enacted.
L. This Agreement is consistent with the public health, safety, and welfare needs of the residents of the City and the surrounding region. The City has specifically considered and approved the impact and benefits of the development of the Project on the Property in accordance with this Agreement upon the welfare of the region. Consistent with the LUCE, the Project will provide a number of significant project features and community benefits as set forth in Section 2.7 of this Agreement.
M. The City Council has found that the provisions of this Development Agreement are consistent with the relevant provisions of the City’s General Plan, including the LUCE.
N. On March 4, 2013, the City’s Architectural Review Board performed conceptual review of the Project Plans and was generally favorable as to the design of the Building with certain suggested refinements.
O. On October 16, 2013, after having held duly noticed public hearings on the Development Application, the EIR and this Agreement, the City's Planning Commission recommended that the City Council certify the EIR and further recommended that the City Council deny approval of this Agreement until various provisions of concern to the Planning Commission were addressed.
P. On November 12, 2013, the City Council held a duly noticed public hearing on the Development Application, the EIR and this Agreement, and at such hearing the City [describe CEQA action] and introduced Ordinance No. _____ for first reading, approving this Agreement.
Q. On ____________, 2013, the City Council adopted Ordinance No. ______, approving this Agreement.
NOW THEREFORE, in consideration for the covenants and conditions hereinafter set forth, the Parties hereto do hereby agree as follows:
The terms defined below have the meanings in this Agreement as set forth below unless the Agreement expressly requires otherwise:
1.1 “Agreement” means this Development Agreement entered into between the City and Developer as of the Effective Date.
1.2 “ARB” means the City’s Architectural Review Board.
1.3 “Building” means the new six-story mixed-use hotel building with a two-level subterranean parking garage proposed by Developer to be developed on the Property. Building includes the Hotel and Leasable Space.
1.4 “Building Height” has the meaning as defined in Zoning Ordinance Section 9.04.10.02.030, except that for the purposes of calculating this Project’s Building Height, the roof shall include the horizontal waterproofing membrane of the Project’s roof, but not any crickets, flashings, parapets, or other elements at the rooftop of the Building that are installed atop, or as an extension of, the roof’s waterproofing membrane surface.
1.5 “City Council” means the City Council of the City of Santa Monica, or its designee.
1.6 "City Parties" means the City, its City Council, boards and commissions, departments, officers, agents, employees, volunteers and other representatives.
1.7 “Discretionary Approvals” are actions which require the exercise of judgment or a discretionary decision, and which contemplate and authorize the imposition of revisions or additional conditions, by the City, including any board, commission, or department of the City and any officer or employee of the City. Discretionary Approvals do not include Ministerial Approvals.
1.8 “Effective Date” has the meaning set forth in Section 9.1 below.
1.9 "Floor Area" has the meaning as defined in Section 9.04.02.030.315 of the Zoning Ordinance; provided, however, that mechanical rooms located on roof areas shall not count as floor area if used for solar-related equipment.
1.10 “Floor Area Ratio" and FAR” mean the Floor Area of the Project, as calculated in accordance with Section 1.9 of this Agreement, divided by the area of the Property; provided, however, that in accordance with the IZO, Subterranean Space (regardless of its use) shall not be included in the calculation of the FAR and outdoor dining areas shall not be included in the calculation of the FAR.
1.11 “General Plan” or “City General Plan” means the General Plan of the City of Santa Monica, and all elements thereof including the LUCE, as of the Effective Date unless otherwise indicated in this Agreement.
1.12 “Hotel” means a moderately priced hotel offering temporary lodging to patrons for not more than thirty (30) consecutive days including, but not limited to, an establishment held out to the public as a motor lodge, motel, apartment hotel, hostel, inn, tourist court or other similar transient use. Hotel shall not include the Leasable Space provided such Leasable Space is leased to and operated by a third party separate and independent of the operator of the Hotel.
1.13 “Hotel Use” means those activities and services customarily associated with a limited-service hotel which may include, without limitation, meeting and breakfast/luncheon/dining rooms, bistro/cafe, Restaurant (which may include a bar counter), lounge and associated support facilities, fitness/exercise room and equipment for hotel guests only, business convenience center, retail sundry shop, Incidental Food Service, swimming pool/sun deck, jacuzzi, and valet or attendant parking services. Hotel Use shall not pertain to the Leasable Space provided such Leasable Space is leased to and operated by a third party separate and independent of the operator of the Hotel.
1.14 “Incidental Food Service” has the meaning given that term in Section 9.04.02.030.420 of the SMMC.
1.14 “Including” means “including, but not limited to.”
1.15 "Leasable Space" means the ground floor areas of the Building identified as "Leasable Space" on the Project Plans.
1.16 “LEED® Rating System” means the Leadership in Energy and Environmental Design (LEED®) for New Construction & Major Renovations adopted by the U.S. Green Building Council and implemented by the Green Building Certification Institute in effect at the time of ARB submittal. In the event no such system exists at the time Developer submits for ARB approval, an alternative green building rating system may be selected by the Developer subject to approval by the City.
1.17 "Legal Action” means any action in law or equity.
1.18 “Maximum Floor Area” means 78,750 square feet of Floor Area.
1.19 “Ministerial Approvals” mean any action which merely requires the City (including any board, commission, or department of the City and any officer or employee of the City), in the process of approving or disapproving a permit or other entitlement, to determine whether there has been compliance with applicable statutes, ordinances, regulations, or conditions of approval.
1.20 “Parties” mean both the City and Developer and “Party” means either the City or Developer, as applicable.
1.21 “Planning Director” means the Planning Director of the City of Santa Monica, or his or her designee.
1.22 "Project" means all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans
1.23 “Project Plans” mean the plans for the Project that are attached to this Agreement as Exhibit “B.”
1.24 “Restaurant Uses” shall have the meaning given the term “Restaurant” as defined in Section 9.04.02.030.730 of Existing Regulations.
1.26 “Zoning Ordinance” means the City of Santa Monica Comprehensive Land Use and Zoning Ordinance (Chapter 9.04 of the SMMC), and any applicable Interim Zoning Ordinance, as the same are in effect on the Effective Date, as set forth in its entirety within Exhibit “E” (Planning and Zoning).
DESCRIPTION OF THE PROJECT
2.1 General Description. The Project includes all aspects of the proposed development of the Property as more particularly described in this Agreement and on the Project Plans. If there is a conflict or inconsistency between the text of this Agreement and the Project Plans, the Project Plans will prevail; provided, however, that omissions from the Project Plans shall not constitute a conflict or inconsistency with the text of this Agreement.
2.2 Principal Components of the Project. The Project consists of the following principal components, as well as the other components delineated in the Project Plans, all of which are hereby approved by the City subject to the other provisions of this Agreement:
(a) Demolition of all existing structures on the Property.
(b) Construction of a mixed-use hotel development on the Property in accordance with the Project Plans for:
(i) Hotel Use having up to 136 guest rooms and other Hotel facilities, and
(ii) the Leasable Space with a minimum of 2,400 square feet and maximum of 4,500 square feet of Floor Area.
(c) Construction of a multi-level subterranean parking garage and basement on the Property in accordance with the project Plans with a minimum of seventy-seven (77) striped parking spaces consisting of standard, compact and handicapped spaces.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require Developer to proceed with the construction of the Project or any portion thereof.
(b) The decision to proceed or to forbear or delay in proceeding with construction of the Project or any portion thereof shall be in Developer’s sole discretion.
(c) Failure by Developer to proceed with construction of the Project or any portion thereof shall not give rise to any liability, claim for damages or cause of action against Developer, except as may arise pursuant to a nuisance abatement proceeding under SMMC Chapter 8.96, or any successor legislation.
2.3.2 Failure by Developer to proceed with construction of the Project or any portion thereof shall not result in any loss or diminution of development rights, except upon expiration of Developer’s vested rights pursuant to this Agreement, or the termination of this Agreement.
2.3.3 Notwithstanding any provision of this Section 2.3 to the contrary, if Developer proceeds with the construction of the Project, except as otherwise expressly limited in this Agreement, Developer shall be required to implement all mitigation measures and conditions of approval required under this Agreement in accordance with Exhibit “D”. If Developer has proceeded with the construction of the Project, the mitigation measures and conditions of approval in Exhibit "D" shall survive termination of this Agreement (except as otherwise expressly limited in this Agreement), and notice of the mitigation measures and conditions shall be recorded separately from and concurrently with this Agreement.
2.4 Vested Rights.
2.4.1 Approval of Project Plans. The City hereby approves the Project Plans. The City shall maintain a complete copy of the Project Plans, stamped “Approved” by the City, in the Office of the City Clerk, and Developer shall maintain a complete copy of the Project Plans, stamped “Approved” by the City, in its offices or at the Project site. The Project Plans to be maintained by the City and Developer shall be in a half-size set. Further detailed plans for the construction of the Building and improvements, including, without limitation, structural plans and working drawings shall be prepared by Developer subsequent to the Effective Date based upon the Project Plans.
2.4.2 Minor Modifications to Project. Developer, with the approval of the Planning Director, may make minor changes to the Project or Project Plans (“Minor Modifications”) without amending this Agreement; provided that the Planning Director makes the following specific findings that the Minor Modifications: (i) are consistent with the Project’s approvals as approved by the City Council; (ii) are consistent with the provisions, purposes and goals of this Agreement; (iii) are not detrimental to the public health, safety, convenience or general welfare; and (iv) will not significantly and adversely affect the public benefits associated with the Project. The Planning Director shall notify the Planning Commission in writing of any Minor Modifications approved pursuant to this Section 2.4.2. Any proposed change which the Planning Director denies as not qualifying for a Minor Modification based on the above findings must be processed as a Major Modification.
2.4.3 Modifications Requiring Amendment to this Agreement. Developer shall not make any “Major Modifications” (defined below) to the Project without first amending this Agreement to permit such Major Modifications. A “Major Modification” means the following:
(a) Reduction of any minimum ground floor setback of the Project, as depicted on the Project Plans, if by such reduction the applicable setback would be less than is permitted in the applicable zoning district under the Zoning Ordinance in effect on the date such modification is applied for;
(b) Any change in use not consistent with the permitted uses defined in Section 2.5 below;
(c) Any one time increase in the number of hotel guest rooms specified in Section 2.2(b) by more than one (1) guest room, or any reduction in the number of hotel guest rooms specified in Section 2.2(b) by more than 4 guest rooms;
(d) Any decrease in the number of parking spaces shown on the Project Plans by more than 8 marked parking spaces;
(e) Any material change in the curb cuts shown on the Project Plans;
(f) Any variation in the design, massing or building configuration, including but not limited to, Floor Area and Building Height, that renders such aspects out of substantial compliance with the Project Plans after ARB Approval; and
(g) Any change that would substantially reduce or alter the community benefits or significant project features as set forth in Section 2.7.
If a proposed modification does not exceed the Major Modification thresholds established above, then the proposed modification may be reviewed in accordance with Section 2.4.2.
2.4.4 City Consent to Modification. The Planning Director shall not unreasonably withhold, condition, or delay his or her approval of a request for such Minor Modification. The City may impose fees, exactions, conditions, and mitigation measures in connection with its approval of a Minor or Major Modification, subject to any applicable law. Notwithstanding anything to the contrary herein or in the Existing Regulations, if the Planning Director approves a Minor Modification or if the City approves a Major Modification (and the corresponding amendment to this Agreement for such Major Modification), as the case may be, Developer shall not be required to obtain any other Discretionary Approvals for such modification, except for ARB approval, in the case of certain Major Modifications.
2.4.5 Right to Develop. Subject to the provisions of Section 3.3 below, during the Term (as defined in Section 9.2 below) of this Development Agreement, Developer shall have the vested rights (the “Vested Rights”) to (a) develop and construct the Project in accordance with the following: (i) the Project Plans (as the same may be modified from time to time in accordance with this Agreement); (ii) any Minor Modifications approved in accordance with Section 2.4.2; (iii) any Major Modifications which are approved pursuant to Section 2.4.3; and (iv) the requirements and obligations of Developer related to the improvements which are specifically set forth in this Agreement, and (b) use and occupy the Project for the permitted uses set forth in Section 2.5. Except for any required approvals from the ARB pursuant to Section 6.1 of this Agreement, the City shall have no further discretion over the elements of the Project which have been delineated in the Project Plans (as the same may be modified from time to time in accordance with this Agreement).
2.5.1 Permitted Uses. Pursuant to this Agreement, Permitted Uses in the Project shall be as specified below:
(a) At the ground floor, the following are Permitted Uses:
(i) Within the Hotel: all Hotel Uses are permitted.
(ii) Within the Leasable Space on the ground floor: only Restaurant Use is permitted; provided, however, that if Developer is unable to secure a suitable credit-worthy tenant for a Restaurant Use on commercially reasonable terms within at least 180 days after initiating good faith attempts to do so prior to the initial occupancy of the Leasable Space, Developer may thereafter lease the Leasable Space for neighborhood serving, transit and pedestrian-oriented, or Hotel/guest/visitor serving uses with the approval of the Planning Director, in accordance with Section 2.4.2 of this Agreement, which approval shall not be unreasonably withheld. Furthermore, each time there is a change in tenancy or anticipated vacancy of any portion of the Leasable Space consisting of at least 2,500 square feet of Floor Area, Developer shall, for a period of not less than sixty (60) days, again attempt to secure a Restaurant Use for the Leasable Space on commercially reasonable terms; provided, however, that if Developer is unable to secure a suitable credit-worthy tenant for a Restaurant Use on commercially reasonable terms within that 60 day period after initiating good faith attempts to do so, Developer may thereafter lease the Leasable Space for neighborhood serving, transit and pedestrian-oriented, or Hotel/guest/visitor serving uses with the approval of the Planning Director, in accordance with Section 2.4.2 of this Agreement, which approval shall not be unreasonably withheld.
(iii) Alley Deliveries: In addition to the locations specified on the Project Plans for off-street loading, the eastern half of Fourth Court alley along the shared western boundary of the Property may be used for deliveries and loading to and from the Project between the hours of 10:00 a.m. and 2:00 p.m daily.
(iv) Above the ground floor: the following is a Permitted Use: Any and all Hotel Uses.
(v) In the Subterranean Space: Parking including valet parking, car share parking, and Shared Parking in accordance with Section 2.7.2(j) below; Hotel Uses including an employee lounge, shower and lockers; bicycle storage/parking; mechanical and electrical equipment; storage space; and any other uses that are designated as Permitted Uses for the Zoning District in which the Property is located provided that either (xx) the Planning Director has determined, in writing, that there is adequate parking based on a parking demand study or (yy) a parking in-lieu fee has been paid to the City for such additional use beyond those uses contemplated in this Agreement and the Project Plans.
2.5.2 Conditionally Permitted Uses. “Conditionally Permitted Uses” include (a) all uses that are identified as Conditionally Permitted Uses in the SMMC in effect at the time the use is sought to be established, with the exception of any uses that are defined as Permitted Uses herein, and (b) any uses requiring a Conditional Use Permit in Section 2.6.3. Conditionally Permitted Uses may commence operating at the Project upon issuance of a Conditional Use Permit (“CUP”) in accordance with the procedures established in the SMMC and the issuance of a business license.
2.6.1 Hotel. The Hotel operator may sell and/or furnish alcoholic beverages ("Alcoholic Beverages") to Hotel guests within Hotel common areas (including the ground floor lobby, lounge, bistro, and the second floor meeting room, terrace, spa and deck areas without obtaining a conditional use permit pursuant to SMMC Section 9.04.10.18 so long as the operator agrees in writing to comply with the terms and conditions in Exhibit “G-2”. Additionally, the Hotel operator may sell Alcoholic Beverages to Hotel guests from the sundry market without obtaining a conditional use permit pursuant to SMMC Section 9.04.10.18 so long as the operator agrees in writing to comply with the terms and conditions in Exhibit “G-1”. Notwithstanding the foregoing, the operator may apply for a conditional use permit pursuant to SMMC Section 9.04.10.18 in order to sell or furnish alcoholic beverages for consumption on terms other than those in Exhibits “G-1” or “G-2”. This Section 2.6.1 shall survive the expiration of the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and shall continue in effect for the life of the Project. Notice of the terms and conditions in Exhibits "G-1" and "G-2" shall be recorded separately from and concurrently with this Agreement.
2.6.2 Restaurants. Whether as part of the Hotel operations or not, a Restaurant operator may dispense for sale or other consideration, Alcoholic Beverages for on-site consumption in all or any portion of the Project Plans marked as “Leasable Space” -- provided that there are not more than 4,500 square feet in total of Restaurant Uses in the Project -- so long as the operator agrees in writing to comply with the terms and conditions in Exhibit “H”. The permitted service area may include any outdoor seating where meal service is available. Developer shall cause all Restaurant operator leases or transfers of ownership to contain a clause that requires the new operator to comply with the terms and conditions in Exhibit H in the event that Alcoholic Beverages are intended to be dispensed for on-site consumption. Notwithstanding the foregoing, the operator of a Restaurant may apply for a conditional use permit pursuant to SMMC Section 9.04.10.18 in order to sell or furnish alcoholic beverages for consumption on-site on terms other than those in Exhibit H. This Section 2.6.2 shall survive the expiration of the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and shall continue in effect for the life of the Project.
2.6.3 Conditional Use Permit. A conditional use permit pursuant to SMMC Section 9.04.10.18 shall be required for any proposed use in the Building that (a) includes the service or sale of alcoholic beverages and (b) does not comply with the conditions set forth in Sections 2.6.1 or 2.6.2. Notwithstanding the foregoing, no conditional use permit shall be required for catered events for which the necessary permits then required for such events have been obtained. This Section 2.6.3 shall survive the expiration of the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and shall continue in effect for the life of the Project.
2.7 Significant Project Features and LUCE Community Benefits. The significant project features and LUCE community benefits identified below in this Section 2.7 shall be achieved and developed in accordance with the terms of this Agreement.
(a) tax revenues, including transient occupancy tax, sales tax, property tax, business license tax, parking tax, and utility user’s tax;
(b) a desirable mix of uses within a new Building to be constructed in the Downtown immediately across the street from the Exposition Light Rail terminus station;
(c) enhanced architecture -- including the qualities of the Building massing, materials, finishes and colors -- at an important gateway location to the City’s Downtown from the Fifth Street I-10 Freeway off-ramp and immediately across the street from the Exposition Light Rail terminus station. The architectural design of this Courtyard by Marriott Hotel has been tailored specifically for Santa Monica and is greatly enhanced in comparison with other Courtyard by Marriott Hotels. Moreover, also consistent with the LUCE, this Project is paired with a concurrent hotel project across the street at 501 Colorado Avenue at this gateway location.
(d) providing new employment opportunities in the Hotel and Leasable Space;
(e) providing the City with fee revenue for child care facilities;
(f) providing the City with fee revenue for cultural arts;
(g) providing the Santa Monica-Malibu Unified School District with fee revenue for capital improvements;
(h) installation of standard water and wastewater reduction fixtures within the Project as legally applicable;
(i) construction jobs;
(j) various standard public improvements and fees; and
(l) Hotel Living Wage.
(i) Purpose. The purpose of this subsection (l) is to ensure that Hotel workers receive fair and reasonable compensation as a significant Project benefit. This Hotel’s living wage obligations shall be generally comparable to those provisions that may be imposed on other hotels seeking approval of development agreements in Santa Monica, while taking into account the average daily room rates of those other hotels in comparison to this Hotel’s average daily room rate.
(ii) All Hotel Workers Covered. To the extent they are working at the Property, all workers performing Hotel Use services, whether as employees of the Hotel or as employees of a contractor providing Hotel Use services within the Hotel, shall be covered by this subsection (l); provided, however, that notwithstanding the foregoing, the employees of any third party contractors providing the following services at the Hotel shall not be considered a Hotel Use service covered by this subsection (l):
1. Parking attendants/valets
2. Bicycle attendants
3. Bicycle maintenance
4. Security officers
5. Equipment or facility maintenance
(iii) Living Wage Amount. Workers covered by this subsection (l) shall be paid at least the minimum hourly wage rate specified herein as a Hotel Living Wage. This requirement shall not apply to workers who do not spend the majority of their hours of employment during a normal work week on the Property. The amount of the Hotel Living Wage required by this Section shall be consistent with the City’s Living Wage Ordinance (Chapter 4.65 of the SMMC), without any deduction on account of any gratuity or any part thereof given to or left for a Hotel worker by a Hotel patron. Any tips received by Hotel workers covered by this subsection (l) shall be the sole property of the worker or workers to whom it was paid, given or left for.
(iv) CPI Adjustment. The Hotel Living Wage minimum hourly rate required by this subsection (l) shall be adjusted annually in accordance with SMMC section 4.65.010.
(v) Collective Bargaining Exception. The provisions of this subsection (l) may be waived, in full or in part, in a bona fide collective bargaining agreement, but only if and to the extent the waiver is explicitly set forth in such agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute, or be permitted as, a waiver of all of any part of the provisions of this subsection (l) . This provision shall not negate the confidential nature of any such collective bargaining agreement, and City hereby agrees to maintain the confidentiality of such collective bargaining agreement, including all of its terms except only that City can disclose the extent to which such an agreement contains an explicit waiver of any of the terms or provisions of this Development Agreement.
(vi) Expiration. If not terminated any earlier, this subsection (l) shall automatically expire and be of no further force or effect upon expiration of this Agreement.
(vii) Termination Rights. In the event the City adopts a Living Wage Ordinance of general application to hotels located within the City, including the Hotel within this Project, then the provisions of this subsection (l) shall automatically be of no further force and effect.
(viii) Leasable Space. So long as the Leasable Space is leased and operated by a third party not related to Developer or the Hotel operator, the workers in the Leasable Space shall not be governed by the Living Wage provisions specified this subsection (l).
2.7.2 LUCE Community Benefits. Set forth below in this Section 2.7.2 are the community benefits that will be provided by the Project.
(a) Community Physical Improvements. Developer shall incorporate, construct, operate and maintain enhanced elements of the Building's design, including an Enhanced Walkway Area and Open Arcade as shown on the Project Plans; Developer shall make the Enhanced Walkway and Open Arcade Areas accessible to the public at all times, except that Developer may limit public access to such Enhanced Walkway and Open Arcade Areas between the hours of 2:00 am through 5:00 am. The public use of the Enhanced Walkway and Open Arcade Areas shall be: (i) consistent with the terms and conditions of this Agreement; (ii) solely for pedestrian access to and passive use of the Enhanced Walkway and Open Arcade by the public, including walking, strolling, and similar activity; (iii) use of the bike share area in the Open Arcade if and when established; and (iv) compatible with Developer’s development, use and enjoyment of the Project. No use other than a bike share system in the Open Arcade and pedestrian access to and passive use of the Enhanced Walkway and Open Arcade by the public shall be permitted on the Enhanced Walkway or Open Arcade. Notwithstanding the above, Developer may limit public access to the Enhanced Walkway Area during other hours, but only if the Enhanced Walkway area is utilized for outdoor dining.
In the event any portion of the Hotel and/or Leasable Space is occupied by one or more Restaurant or other food service type of uses, Developer and/or Restaurant Operator shall ensure that tables and chairs are provided in the Enhanced Walkway as shown on the Project Plans, or as otherwise may be approved by the Planning Director, to accommodate not less than twelve (12) and not more than twenty-four (24) patrons during the Restaurant’s hours of service. Any request for additional exterior seating shall be subject to Planning Director approval as provided in Condition 10 of Exhibit H.
In the event the Hotel and/or Leasable Space is not occupied by a Restaurant Use or other food service type of uses, Developer and/or Leasable Space Operator(s) shall nonetheless ensure that outdoor seating is provided in the Enhanced Walkway as shown on the Project Plans, or as otherwise may be approved by the Planning Director, to accommodate not less than nine (9) persons, or as otherwise may be approved by the Planning Director based on the actual tenant and use of the Leasable Space.
The Enhanced Walkway and Open Arcade shall remain the private property of Developer with members of the public having only a license to occupy and use the Enhanced Walkway and Open Arcade in a manner consistent with this Article 2. Nothing in this Agreement shall give members of the public the right, without the prior written consent of Developer, which consent may be conditioned or withheld by Developer in Developer’s sole discretion, to engage in any other activity on the Enhanced Walkway or Open Arcade, including, without limitation any of the following: (i) cooking, dispensing or preparing food; (ii) selling any item or engaging in the solicitation of money, signatures, or other goods or services; (iii) sleeping or staying overnight; (iv) using sound amplifying equipment; or (v) engaging in any illegal, dangerous, intimidating or other activity that Developer reasonably deems to be inconsistent with other uses in the Project or with the use of the Enhanced Walkway or Open Arcade by other members of the public for the permitted purposes, such as excessive noise or boisterous activity, bicycle or skateboard riding skating or similar activity, being intoxicated, having offensive bodily hygiene, having shopping carts or other wheeled conveyances (except for wheelchairs and baby strollers/carriages), and Developer shall retain the right to cause persons engaging in such conduct to be removed from the Project. If any such persons refuse to leave the Project, they may be deemed by Developer to be trespassing in accordance with applicable law concerning the removal of trespassers from private property. Developer shall be entitled to establish and post rules and regulations for use of the Enhanced Walkway and Open Arcade consistent with the foregoing. Nothing in this Agreement or in the Project Plans shall be deemed to mean that the Enhanced Walkway or Open Arcade is a public park or is subject to legal requirements applicable to a public park or other public space.
(b) Local Hiring. A local hiring program shall be implemented within the Project in accordance with Exhibits “F-1” and “F-2”. In connection with the local hiring program, each time a new Hotel or Restaurant opens within the Project, Developer or the operator of any new Hotel or Restaurant in the Project shall conduct at least one on-site job fair targeted towards recruitment of local resident candidates for on-site Hotel and/or Restaurant jobs at least fourteen (14) days before recruitment is opened up to general circulation for the initial hiring by the new Hotel or Restaurant. This on-site job fair shall be promoted locally in the same manner as is specified in Exhibit F-2. Furthermore, at least sixty (60) days before recruitment is opened up to general circulation for the initial hiring by the new Hotel or Restaurant, Developer or the operator of any new Hotel or Restaurant in the Project shall prepare and submit to the City’s Planning Director for review and approval a written local hiring program consistent with the obligations under this Agreement. The approved local hiring plan may be amended from time to time thereafter, subject to the Planning Director’s review and approval.
(c) Transportation Demand Management. Developer shall adopt and implement the following Transportation Demand Management Plan (“TDM Plan”):
(i) AVR Standards. Developer shall achieve an average vehicle ridership ("AVR") of 2.0 commencing from one year after the City’s issuance of a final certificate of occupancy for the Building; provided, however, that if the Exposition Light Rail Line is not then fully operational, then the AVR target shall be 1.75 until the Fourth Street Station for the Exposition Light Rail Line is fully operational. SMMC Chapter 9.16 shall govern how the AVR is calculated, except that notwithstanding SMMC Section 9.16.070(d)(4)((B), a Zero Emission Vehicle (“ZEV”) shall be counted as a vehicle for purposes of calculating the AVR. Developer will determine its AVR through employee surveys for one consecutive week each calendar year beginning the first year the hotel opens for business. Developer shall submit such baseline survey to the City at the time of submittal of its annual compliance report for this Agreement. The City shall monitor the TDM Plan performance as part of the City’s Periodic Review for the Project. If during any annual evaluation of the Project’s employee trip reduction plan, the AVR requirement has not been achieved for the Project, then Developer shall propose modifications to the TDM Plan that Developer considers likely to achieve the AVR requirement by the date of the next annual evaluation of the Project’s employee trip reduction plan. In addition, the City’s Planning Director may recommend feasible modifications to the TDM Plan, including, without limitation, that Developer shall make available to all of its employees on a continuing basis a Metro EZ public transit pass (or equivalent multi-agency monthly transit pass) at a subsidized rate of no less than 50% of the cost of the transit pass. Failure to achieve the AVR standards as provided in this Section will not constitute a Default within the meaning of the Agreement so long as Developer is in compliance with the TDM Plan.
For purposes of determining AVR, the survey must be conducted and AVR calculated in accordance with SMMC 9.16.070(d)(2)(1) except to the extent modified by this Agreement below:
The survey must be taken over five consecutive days during which the majority of employees are scheduled to arrive at or leave the worksite. The days chosen cannot contain a holiday and cannot occur during ‘Rideshare Week’ or other ‘event’ weeks (i.e., Bicycle Week, Walk to Work Week, Transit Week, etc.). This survey must have a minimum response rate of seventy-five percent of employees who report to or leave work between six a.m. and ten a.m., inclusive, and seventy-five percent of employees who report to or leave work between three p.m. and seven p.m., inclusive. Employers that achieve a ninety percent or better survey response rate for the a.m. or p.m. window may count the ‘no-survey responses’ as ‘other’ when calculating their AVR . . .
* * *
The procedure for calculating AVR at a worksite shall be as follows:
(A) The AVR calculation shall be based on data obtained from an employee survey as defined in [SMMC Section 9.16.070(d)(2)].
(B) AVR shall be calculated by dividing the number of employees who report to or leave the worksite by the number of vehicles arriving at or leaving the worksite during the peak periods. All employees who report to or leave the worksite that are not accounted for by the employee survey shall be calculated as one employee per vehicle arriving at or leaving the worksite. Employees walking, bicycling, telecommuting, using public transit, or on their day off under a recognized compressed work week schedule shall be counted as employees arriving at or leaving the worksite without vehicles. Motorcycles shall be counted as vehicles.
(C) A child or student may be calculated in the AVR as an additional passenger in the carpool/vanpool if the child or student travels in the car/van to a worksite or school/childcare facility for the majority (at least fifty-one percent) of the total commute.
(D) If two or more employees from different employers commute in the same vehicle, each employer must account for a proportional share of the vehicle consistent with the number of employees that employer has in the vehicle.
(E) Any employee dropped off at a worksite shall count as arriving in a carpool only if the driver of the carpool is continuing on to his/her worksite.
(F) Any employee telecommuting at home, off-site, or at a telecommuting center for a full work day, eliminating the trip to work or reducing the total travel distance by at least fifty-one percent shall be calculated as if the employee arrived at the worksite in no vehicle.
Furthermore, the definition of AVR contained in SMMC Section 9.16.030, as written on the Effective Date, shall govern how AVR is calculated. That definition reads as follows:
“The total number of employees who report to or leave the worksite or another job-related activity during the peak periods divided by the number of vehicles driven by these employees over that five-day period. The AVR calculation requires that the five-day period must represent the five days during which the majority of employees are scheduled to arrive at the worksite. The hours and days chosen must be consecutive. The averaging period cannot contain a holiday and shall represent a normal situation so that a projection of the average vehicle ridership during the year is obtained.”
(ii) TDM Plan Program Elements. The specific program elements of the TDM program for the Project are as follows:
220.127.116.11 Transportation Demand Management Association. Developer, the Hotel operator and Building tenants shall be required to participate in the establishment of a geographic-based Transportation Demand Management Association (TMA) that may be defined by the City. TMAs provide employees, businesses and visitors of an area with resources to increase the amount of trips taken by transit, walking, bicycling, and ridesharing. If the City adopts a requirement that a TMA be formed for this geographic area, Developer shall attend organizational meetings and provide traffic demand data to the TMA. Developer shall require in all leases and hotel operating agreements it executes as landlord for space within the Project that building tenants be required to participate as members in the TMA and that all subleases contain this same provision. The Developer and/or Hotel operator, and all tenants of the Leasable Space, shall actively participate in the on-going activities of any such TMA. Developer may elect to provide some or all of the services required by this subsection 18.104.22.168 through the TMA, in consultation with the City’s Transportation Demand Program manager.
22.214.171.124 Employee Transportation Coordinator. An Employee Transportation Coordinator (ETC) shall be designated for this Project by Developer. The ETC shall manage all aspects of this TDM program and participate in the local TMA that may be established by the City, City-sponsored workshops and information roundtables. The ETC shall be responsible for actively encouraging and making available informational materials on options for alternative transportation modes and opportunities. The ETC shall contact each employee at the point of hire and at least once per year thereafter with an offer of personalized commute assistance, including, but not limited to: (a) making available to each new employee a Metro EZ public transit pass (or equivalent multi-agency monthly transit pass) valid every day for the first three months of the new employee's employment (offered during the first three months of employment only) to establish on-going ridership habits (see subsection 126.96.36.199.1), (b) providing guidance on routes to use, (c) providing information concerning light rail transit, (d) providing information about carpool and vanpool formation, (e) providing information concerning bus routes, and (f) facilitating a discussion of any other transit-related benefits that may be available. The ETC shall also promote non-drive-alone options to employees by providing onsite information, including a newsletter, at least two events per year (e.g., Rideshare Week and Bike Week) and occasional marketing activities such as contests and raffles. The ETC shall coordinate with nearby employers to facilitate more effective carpool/vanpool matching, events and promotions. In addition, transit fare media will be made available for purchase through the ETC to employees and visitors during typical business hours. Employee Transportation Coordinator services may be provided through the TMA contemplated in subsection 188.8.131.52, above.
The ETC and/or other designated/trained Hotel employee shall be available to assist Hotel guests with (a) providing guidance on routes to use, (b) providing information related to light rail transit, (c) providing information related to bus routes, and (d) facilitating a discussion of any other transit-related benefits that may be available.
184.108.40.206 Transportation Information Center. Developer shall ensure that the Hotel operator promotes and makes information available on-site for hotel employees and hotel guests, and that commercial tenants of the Leasable Space promote and provide their employees with information about local public transit services (including bus lines, light rail lines, bus fare programs, ride share programs and shuttles) and bicycle facilities (including routes, rental and sales locations, on-site bicycle racks and showers.) Developer shall ensure that the Hotel operator offers (e.g., at check-in) each hotel party with a map, schedule and fare information for utilizing the transit system in Santa Monica and the surrounding area. Developer shall further ensure that the Hotel operator also makes information available to hotel guests about transit and light rail opportunities, carshare, rideshare, shopping locally, and bike and walking routes, by posting such information (a) on the Hotel’s website, (b) in a conspicuous place in the lobby, (c) on a computer terminal or other form of electronic media in the Hotel lobby, and (d) through either printed materials or electronic messages provided in each guest room. Developer shall further ensure the Hotel operator also makes walking and biking maps available for employees and visitors, which shall include but not be limited to information about convenient public transit stops, local services, and restaurants within walking distance of the Project. Developer shall make information available to employees and commercial tenants and employees of the hotel operator regarding local rental housing agencies. Such transportation information shall be provided on-site, regardless of whether also provided on a website.
220.127.116.11 Secure Bicycle Parking for Employees/Hotel Guests. Developer shall provide secure long-term bicycle storage for employees and for hotel guests in a secure convenient location approved by the Planning Director. This shall have a capacity for a minimum of thirty-one (31) bicycles. For the purpose of this requirement, secure bicycle parking shall mean bicycle lockers, an attended cage, or a secure parking area.
18.104.22.168 Visitor Bicycle Parking. Developer shall provide short-term bicycle parking for twelve (12) bicycles for guests of the Project. This guest bike parking shall be located in various areas on the ground floor of the Project and may be relocated from time to time as long as the parking remains on the ground floor.
22.214.171.124 Bicycle Rentals by Hotel Guests. The Hotel operator shall either provide or may contract with a local bicycle rental business to make no less than ten (10) bicycles available on-site for rental by hotel guests, whereas additional bicycles shall be provided as needed based on guest demand; provided, however, that in the event any portion of the Leasable Space is rented to a bicycle rental business, then the Hotel operator’s obligation to also make bicycles available to Hotel guests shall be deemed satisfied so long as the on-site bicycle rental business continues to operate in the Leasable Space and offers no less than ten (10) bicycles for rental. On-site bike rentals shall be promoted consistent with (a), (b) and (c) of subsection 126.96.36.199. Additionally, Developer shall ensure the Hotel operator makes information available to Hotel guests on bicycle rental locations within the Downtown.
188.8.131.52 Parking and Deliveries. Parking and deliveries shall be managed as described in the Parking and Deliveries Management Plan attached hereto as Exhibit “ I “. This Parking and Deliveries Management Plan may be amended from time to time as needed by the Planning Director, pursuant to specific project conditions of approval in Exhibit “D”.
184.108.40.206 Carpool Program. Developer shall provide preferential parking within the Project’s parking garage for Project employees who commute to work in employer-registered carpools. An employee who drives to work with at least one other employee in the Project or adjacent facilities may register as a carpool entitled to preferential parking within the meaning of this provision.
220.127.116.11 Rideshare Matching Service. Developer shall initiate a referral to all Project employees about a rideshare matching service at least once per year to assist employees in finding carpool/vanpool opportunities (i.e., through a service such as RideMatch (www.ridematch.info)) and/or require the Hotel operator and Project tenants to participate in Metro’s CommuteSmart.info website. Rideshare matching services may be provided through the TMA contemplated in subsection 18.104.22.168, above.
22.214.171.124 Parking Pricing. Hourly parking pricing shall be market-based and adjusted periodically in an effort to ensure parking availability for Hotel guests and employees, commercial tenants and their employees and visitors during peak parking hours. If and when Developer makes any unused on-site commercial parking available for daily, weekly, or monthly lease to third parties in the surrounding area in need of parking in accordance with Section 2.7.2(j), Developer shall charge market rates.
126.96.36.199 Carshare Service. Developer shall, in the subterranean parking garage, offer for rent parking to a car sharing service for a minimum of two (2) cars and a maximum of five (5) cars, if such a service is available from a third party provider on commercially reasonable terms including the rental rate to be paid to Developer for use of the parking space(s). Required parking spaces may be used for carshare vehicles. If utilized, Developer shall propose a signage system to notify people of the location and availability of the carshare vehicles; the City Transportation Manager shall consider such request and may authorize the posting of signs within the public right-of-way to guide pedestrian and vehicular traffic to the carshare parking location. The location of parking for any carshare vehicles shall be determined by the Planning Director in consultation with the Developer, at such time as the carshare service provider has been selected.
188.8.131.52 Rental Car Availability. Developer shall ensure the Hotel operator makes information available to Hotel guests on rental car agency locations within the City. Such car rental agency information shall be made available to hotel guests upon request.
184.108.40.206 Unbundled Parking. Developer shall lease its parking to commercial tenants separately from the commercial space. If commercial tenants desire to lease parking, parking shall either be leased pursuant to a separate agreement or shown as a separate line item in the lease. Such parking shall typically be leased on a month-to-month basis at market rates established by Developer from time-to-time. Developer may, subject to the Planning Director's approval, reconfigure the parking spaces and operations from time-to-time in order to facilitate unbundling of parking. Developer shall require in all tenant leases it executes as landlord that tenants not pay for or reimburse their employees for parking within the Project, provided, however, that Developer shall have no obligation to actively monitor for violations absent reasonable cause for doing so.
220.127.116.11 TDM Plan for Lessees. Developer shall require in any leases it executes as landlord (or management, operating or similar agreement) that the Hotel and any Restaurant or Leasable Space operators must implement the TDM Plan with respect to the areas of the Property leased by Developer to the Hotel and any Restaurant or Leasable Space operators, including the annual survey described in Section 2.7.2(c)(i) above and the requirement to participate in the TMA in Section 2.7.2(c)(ii)(18.104.22.168) above. Developer understands, acknowledges and agrees that nothing herein shall be deemed to alleviate, modify, reduce, eliminate, terminate, or alter Developer's obligation to meet the AVR standards required in this Agreement for the entire Project.
22.214.171.124 Transit Subsidies for Hotel/Leasable Space Operator Employees.
126.96.36.199.1 Developer Hotel Employees. Developer shall make available to all of its Hotel employees a Metro EZ public transit pass (or equivalent multi-agency monthly transit pass) valid every day for the first three months of the new employee's employment (offered during the first three months of employment only) to establish on-going ridership habits.
188.8.131.52.2 Leasable Space Operator Employees. All Leasable Space Operators (if separate from the Developer’ hotel operations) employing fifty (50) or more employees shall make available to their respective employees on an on-going basis a 50% monthly subsidy for a Metro EZ public transit pass (or equivalent multi-agency monthly transit pass). All Leasable Space Operators (if operated by a third party separate from the Developer's Hotel operations) employing less than fifty (50) employees shall make available to their respective employees on an on-going basis a Metro EZ public transit pass (or equivalent multi-agency monthly transit pass) valid every day for the first three (3) months of employment (offered during the first three (3) months of employment only) to establish on-going ridership habits.
184.108.40.206 On-Site Shower and Locker Facilities. A minimum of two (2) showers and a locker facility shall be provided for Project employees who bicycle or use another active means, powered by human propulsion, of getting to work or who exercise during the work day.
220.127.116.11 Guaranteed Return Trip. Developer shall require in all leases it executes as landlord for space within the Project that tenants provide employees who vanpool or carpool with a return trip to the point of commute origin at no additional cost to the employee, when a Personal Emergency Situation, such as personal or family illness or injury, requires it. The employee guaranteed return trip may be provided through the TMA contemplated in Section 2.7.2(c)(ii)(18.104.22.168) above. The ETC may register with Metro’s Guaranteed Ride Home program for such commuters which shall be deemed satisfaction in full of this obligation.
(iii) Changes to TDM Program. Subject to approval by the City’s Planning Director, the Developer may modify this TDM program provided the TDM program, as modified, can be demonstrated as equal or superior in its effectiveness at mitigating the traffic-generating effects of this Project. Any of the modifications to the TDM program proposed by Developer (or proposed by the Planning Director and agreed to by the Developer) to help the Project achieve the applicable AVR standard shall be subject to the reasonable approval by the City’s Planning Director as a Minor Modification.
(iv) Annual Report. As part of the annual compliance review described in Article 10 below, Developer shall report to the City on the status of the TDM program implementation, usage and results.
(v) New TDM Ordinance. If the City adopts a new ordinance of general application that updates or replaces Chapter 9.16 of the SMMC and that applies to the geographic area in which the Property is located (“New TDM Ordinance”), then, subject to the Planning Director’s approval in his or her sole and absolute discretion, Developer may elect to comply with the New TDM Ordinance in lieu of complying with the TDM Plan outlined in this Agreement.
(d) Sustainable Design Features. Developer shall design the Building so that, at a minimum, the Building shall achieve LEED® “Gold” certification by the Green Building Certification Institute under the LEED® Rating System (the "Sustainable Design Status"). Developer shall confirm to the City that the design for the Building has achieved the Sustainable Design Status in accordance with the following requirements:
(i) Prior to the submission of plans and documents to the City for Architectural Review Board review for the Building, the Developer shall submit for review by the City a preliminary checklist of anticipated 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.
(ii) Prior to submittal of the plan check application for the Building, Developer shall:
(1) Submit for review by the City an updated checklist of anticipated LEED® credits along with a narrative describing the project’s sustainable features to demonstrate that the Building is likely to achieve the Sustainable Design Status.
(2) Retain the services of a third party, independent individual designated to organize, lead, and review the completion of the process of verifying and documenting that a building and all of its systems and assemblies are planned, designed, installed, and tested to meet the Building’s requirements (the “Commissioning Authority”).
(3) Submit a Commissioning Plan which includes the elements specified in California Code of Regulations Title 24, Part 11, Section 5.410.2.3.
(iii) Prior to issuance of a final Certificate of Occupancy for the Building (but not a prerequisite to issuance of a temporary Certificate of Occupancy to allow the Building to open for business), the City shall verify (which verification shall not be unreasonably withheld, conditioned or delayed) that the Developer has submitted an application to the Green Building Certification Institute for LEED® “Gold” certification. Provided such application has been received by the Green Building Certification Institute and is being processed, the Final Certificate of Occupancy for the Building shall not be withheld or delayed based on the failure to receive certification of the Sustainable Design Status.
(iv) After the City’s issuance of a final Certificate of Occupancy for the Building and after Developer has opened the Building or any portions thereof to the public, Developer shall be obligated to diligently pursue a determination from the Green Building Certification Institute on such application.
(v) If the Building is ultimately denied certification for the Sustainable Design Status by the Green Building Certification Institute and the Developer has exhausted all administrative remedies and appeals of that denial, then the Developer shall be subject to a fine in the amount of four dollars per square foot of Floor Area. This fine may be waived if the City at its sole discretion determines that the Developer made a good faith effort to achieve and meet the intent of the Sustainable Design Status. Alternatively, the fine may be waived if the Developer commits to pursuing all necessary steps for the Building to achieve certification to the “Gold” level under the LEED ® Existing Buildings Operations and Maintenance (LEED EBOM) rating system no later than 3 years after the Certificate of Occupancy was issued for the Project. If the Developer fails to obtain this certification within this time period, the fine shall be reimposed and immediately payable to City.
(e) Renewable Energy. In order to maximize renewable energy opportunities for this Project, solar energy systems, including photovoltaic panels, solar thermal/hot water systems, and/or other types of commercially available solar energy systems, shall be installed on the Building's roof in areas appropriate for solar placement to achieve reasonable maximum coverage of the roof area, as confirmed by the City’s Planning Director working in consultation with the City’s Office of Sustainability. Areas of the roof available and appropriate for solar systems placement shall exclude any areas necessary or required for rooftop equipment, and any roof areas necessary for building or equipment maintenance, Fire Department access, and/or other applicable code, legally-mandated or otherwise necessary access and/or clearances. The type or types of such renewable energy systems to be installed on the Building’s roof shall be as recommended by a professional engineer trained in solar system design and installation on similar types of commercial buildings in downtown urban environments. The professional engineer shall consult with the City’s Office of Sustainability during the process of evaluating and selecting the type or types of renewable energy systems for this Building. Any such solar system installations shall not be counted in the determination of the maximum height of the Building.
(f) Water Conservation. Prior to issuance of building permit for the Project, the Developer shall demonstrate that the Project shall achieve a minimum 30% water reduction of the hotel’s total water use as reasonably determined by the City’s Office of Sustainability and the Environment. During the plan check process, Developer shall coordinate with the City’s Office of Sustainability and the Environment to evaluate appropriate measures to be implemented in achieving the requirement, including but not limited to, gallons per flush for toilets, gallons per minute for showerheads, water factor for clothes washers, commercial dishwasher requirements, and cooling tower requirements.
(g) Funding For Community Benefits. Developer shall provide a monetary contribution for the following community benefits:
i. Esplanade Contribution. Developer shall coordinate with the City’s Public Works Department to design and construct the Enhanced Walkway consistent with the Esplanade design. The applicant shall be responsible for any Esplanade redesign costs associated for the portion immediately adjacent to the Project site on Colorado Avenue. Furthermore, as a condition to the City’s issuance of the building permit for the Project, Developer shall pay to the City the sum of two hundred and ninety-four thousand dollars ($294,000) to be used by the City for the Colorado Esplanade public improvement project.
ii. Fourth Court Alley Improvement Contribution. Developer shall pay to the City, prior to obtaining a building permit for the Project, the sum of two hundred and ten thousand dollars ($210,000) to be used by the City to implement the City’s Bike Action Plan’s physical improvements to the Fourth Court alley between Colorado Avenue and Broadway, provided that the City proceeds with such work. In the event that these improvements are not implemented by the City, this contribution shall be provided by Developer as a Parks and Recreation/Open Space contribution to be used by the City for public parks and recreation improvements.
iii. Historic Preservation Contribution. Prior to obtaining a building permit for the Project, Developer shall create a separate, interest-bearing trust fund and make a contribution in the amount of seventy-five thousand dollars ($75,000). The monies available in this fund shall be used exclusively for historic preservation programs for the Downtown area in the City. These monies shall be applied for and distributed in accordance with a process, to be established by the Planning Director, whereby those entities that are exclusively devoted to historic preservation may make an application to receive distribution of some or all of the trust funds.
iv. Affordable Housing Linkage Contribution. Developer shall pay to the City, prior to obtaining a building permit for the Project, the sum of twenty-one thousand dollars ($21,000) to be used by the City for affordable housing.
v. HTA Contribution. Developer shall contribute to the Hospitality Training Academy (http://www.unitehere11.org/hospitality-training-academy), or a functionally equivalent organization as may be determined by the City Manager, the sum of fifty thousand dollars ($50,000) to be used specifically for job training and recruitment opportunities for disadvantaged youths targeted from the Pico Neighborhood. “Pico Neighborhood” means the area in the City of Santa Monica bounded by Santa Monica Boulevard from Lincoln Boulevard to 20th Street and Colorado Boulevard from 20th Street to Centinela Avenue on the north, Pico Boulevard on the south, Centinela Avenue and the City limits on the east and Lincoln Boulevard on the west. The first $25,000 shall be paid upon commencement of the Project’s construction; the second $25,000 shall be paid not later than ninety (90) days prior to the Hotel’s opening. The Developer shall notify the City immediately after first and second payments are provided.
(h) Historic Commemorative Installation. Prior to issuance of the final Certificate of Occupancy for the Project, Developer shall install a permanent commemorative installation on the Property in a publicly accessible location of the Project that portrays one or more aspects of the past history and significance of the site as reflected in the Santa Monica Landmarks Commission files for Landmark Designation Application LC-12LM-003. In the process of designing such commemorative installation, Developer shall consult with and solicit suggestions from the Santa Monica Conservancy. Additionally, Developer shall schedule and attend at least one courtesy review hearing before the Santa Monica Landmarks Commission to invite comments and suggestions on the proposed installation. The commemorative installation shall be designed in consultation with a qualified historian, architectural historian or art historian, who will assess the content and presentation to ensure that important historic aspects of the Property are reflected in the commemorative installation. The commemorative installation is intended to be site specific rather than broadly general in its content. The commemorative installation may or may not include plaques, photos, narrative or electronic content. The Developer shall retain final design review authority over the installation.
(i) EV Conduit. Developer shall in the subterranean parking garage provide both: (a) an electric vehicle charging station providing a 208/240 V 40 amp, grounded AC outlet in one parking space and (b) panel capacity and conduit stubs for future installation of electrical outlets designed to allow the simultaneous charging of a minimum number of 208/240 V 40amp, grounded AC outlets equal to at least 7 more of the parking spaces. Until the Planning Director makes a determination, based on demonstrated demand by drivers of such vehicles at the Project, that some or all of the 8 parking spaces be restricted for electric or other alternative fueled vehicle use, the spaces may be utilized without regard to vehicle type at the Developer’s sole and absolute discretion.
(j) Shared Parking. In furtherance of the LUCE’s shared parking policies and consistent with providing sufficient on-site parking for the Project’s users (whether with or without implementation of stacked parking) , Developer may make any unused on-site parking available for monthly lease at market rates to third parties in the surrounding area in need of parking, including area residents, businesses, and employees, (“Shared Parking”) if (i) Developer obtains a written report by a traffic and parking engineering firm that demonstrates that the proposed additional parking spaces to be leased to third parties are not needed to meet the Project’s peak parking demand, (ii) Developer submits such report to the City for review and approval, and (iii) the Planning Director approves the additional parking spaces for Shared Parking. Alternatively, Developer may make parking spaces available for Shared Parking in accordance with any SMMC procedure authorizing shared parking then in effect. In order to facilitate annual compliance monitoring of shared parking and trip reduction targets, Developer shall install ticketing equipment for on-site parking that is able to discern between on-site and off-site users in the event Developer seeks and obtains approval for Shared Parking.
(k) Internship Program. On an ongoing basis, the Developer shall make at least one paid (unless taken for school credit) internship available per school session to a student who is a Santa Monica resident and attends a high school in Santa Monica or Santa Monica College. Developer will inform the schools that such internship shall be targeted towards students who are Santa Monica residents and whose household income is no greater than 80% of the Area Median Income for the Los Angeles-Long Beach Primary Metropolitan Statistical Area (which AMI is determined by HUD). Subject to the requirements specified in this subsection (k), Developer retains full discretion to select the student for the internship.
(l) “I Am Santa Monica” Workshop. Developer shall ensure that the Hotel operator and commercial tenants of the Leasable Space send representatives of their businesses to the “I Am Santa Monica” Workshop (http://www.santamonica.com/iam/) or any analogous program for businesses and their employees.
(m) Community Meeting Space. Subject to availability, Developer shall make the Hotel’s meeting rooms available to non-profits or other community organizations on a reduced cost basis at least twelve (12) times per year for up to five hours per meeting. The reduced cost shall be based on fees that are required for similar City-owned facilities. Notwithstanding the foregoing, standard set up fees and standard food and beverage rates will apply. Prior to issuance of the Hotel’s final Certificate of Occupancy, but not as a requirement to open the Hotel for business, written rental facility guidelines as to community availability of the meeting room shall be prepared by the Hotel operator and submitted to the Planning Director for review and approval. Such rental facility guidelines regarding community availability may be amended from time to time thereafter, subject to the Planning Director’s review and approval.
(n) Bike Share Location. Developer shall allocate an outdoor area (“Bike Share Location”) of 14 feet by 12 feet in the Open Arcade as shown on the Project Plans to establish a bike share facility in conjunction with any bicycle sharing program instituted by the City or an independent operator selected by the City. Developer shall have no obligation to fund or operate any such program. Such bike share facility may be established if and when requested by the Planning Director by delivering a Notice of Intent to Proceed to Developer, which notice shall include plans and specifications of the proposed equipment and installation. The selection of the bike share operator and the installation of the bike share facility shall be subject to the approval of Developer, which approval shall not be unreasonably or untimely withheld. City shall make commercially reasonable efforts to require any operator of the bike share facility to defend, indemnify and hold harmless Developer, officers, agents, employees, and other representatives as well as Developer’s Hotel operator and tenants and their employees, officers, agents and other representatives (collectively “Developer Indemnified Parties”) from and against any and all losses, liabilities, damages, costs, expenses, claims, demands, suits, attorney’s fees and judgments (collectively referred to as “Damages”), including but not limited to claims for damage for personal injury (including death) and claims for property damage arising from the willful misconduct or active negligence of the bike share operator which occurs after Developer’s receipt of the City's Notice of Intent to Proceed relating directly to the operation of the bike share facility on the Property except to the extent any such Damages are caused by the active negligence or willful misconduct of any Developer Indemnified Parties. Notwithstanding anything to the contrary herein, nothing in this section shall be interpreted to require the City to defend, indemnify, and hold harmless any of the Developer Indemnified Parties for any reason whatsoever.
(o) Artistic Exhibition Program. Developer and/or the Hotel Operator shall develop and implement an Artistic Exhibition Program for the purpose of showcasing different forms of art in periodic exhibitions at the Hotel, including art sourced from professional galleries, local artists, and Santa Monica students. The purpose of such exhibitions shall be to establish and build a connection between the Hotel, visitors/guests and the local Santa Monica artistic community. Said Artistic Exhibition Program shall endeavor to host events at the Hotel a minimum of twice each year and showcase various forms of art (including but not limited to paintings, drawings, sculptures, photography, digital media, film, music, literature, theater, dance, performing arts and/or other recognized forms of art).
2.8 Parking. The number of marked parking spaces (including all standard-sized, compact and handicapped spaces) provided in the Project shall be at least seventy-seven (77), and may include up to forty percent (40%) compact parking spaces. This Agreement and the Project Plans set forth the exclusive off-street parking requirements for the Project and supersede all other minimum space parking requirements under the Existing Regulations, including without limitation Part 9.04.10.08 of the Zoning Ordinance. In addition to the marked parking spaces, the opportunity for supplementing the parking capacity of the garage exists by parking vehicles in the aisles if the parking garage is staffed with attendant or valet parking. Provided that and to the extent that the Developer supplies the quantity of parking required under this Agreement, meaning a minimum of ninety-seven (97) parking spaces through stacked parking consistent with the peak parking demand for the site, Developer shall have no obligation to pay any parking in-lieu fees to the City.
(a) Setbacks. Developer shall maintain the setbacks for the Project as shown on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the setbacks established by this Agreement, then the setbacks required by this Agreement shall prevail.
(b) Building Height. The maximum height of the building shall be as set forth on the Project Plans, and in no event in excess of 84 feet when calculated in accordance with the Zoning Ordinance as modified by Section 1.4 of this Agreement. In the event that any inconsistencies exist between the Zoning Ordinance and the Building Height allowed by this Agreement, then the Building Height allowed by this Agreement shall prevail.
(c) Stepbacks. Developer shall maintain the stepbacks for the Project as set forth on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the stepbacks required by this Agreement, then the stepbacks established by this Agreement shall prevail.
(d) Permitted Projections. Projections shall be permitted as reflected on the Project Plans. In the event that any inconsistencies exist between the Zoning Ordinance and the projections permitted by this Agreement, then the projections permitted by this Agreement shall prevail.
(e) Signage. The location, size, materials, and color of any signage shall be reviewed by the ARB (or the Planning Commission on appeal) in accordance with the procedures set forth in Section 6.1 of this Agreement. All signs on the Property shall be subject to Chapter 9.52 of the SMMC (Santa Monica Sign Code) in effect as of the Effective Date, a copy of which is contained within Exhibit "E". Directional signs for vehicles shall be located at approaches to driveways as required by the City's Strategic Transportation Planning Division.
(f) Balconies. Balconies shall be provided in accordance with the Project Plans.
3.1 Construction Mitigation Plan. During the construction phase of the Project, Developer shall comply with the Construction Mitigation Plan attached as Exhibit “K” hereto.
3.2 Construction Hours. Developer shall be permitted to perform construction between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to 5:00 p.m. Saturday; provided that interior construction work which does not generate noise of more than thirty (30) decibels beyond the Property line may also be performed between the hours of 7:00 a.m. to 8:00 a.m. and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00 a.m. and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding the foregoing, pursuant to SMMC Section 4.12.110(e), Developer has the right to seek a permit from the City authorizing construction activity during the times otherwise prohibited by this Section. The Parties acknowledge and agree that, among other things, afterhours construction permits can be granted for concrete pours.
3.3 Outside Building Permit Issuance Date. If Developer has not been issued a building permit for the Project by the “Outside Building Permit Issuance Date” (defined below), then on the day after the Outside Building Permit Issuance Date, without any further action by either Party, this Agreement shall automatically terminate and be of no further force or effect. For purposes of clarity, if Developer has not been issued a building permit for the Project by the Outside Building Permit Issuance Date, the City shall not be required to pursue its remedies under Section 11.4 of this Agreement, and this Agreement shall, instead, automatically terminate. “Outside Building Permit Issuance Date” means the date that is the last day of the thirty-sixth (36th) full calendar month after the Effective Date; provided that the Outside Building Permit Issuance Date 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 two (2) months of the submittal by Developer to the ARB of the Project design for any reason other than the ARB's proper exercise of discretion to approve or disapprove the Project design, then the Outside Building Permit Issuance Date shall be extended one month for each additional month greater than two that the final ARB approval is delayed. At any time after the last day of the thirty-sixth (36th) full calendar month after the Effective Date (the "Extension Notice Date"), Developer may deliver written notice to the Planning Director, requesting an extension of the Outside Building Permit Issuance Date for an additional twelve (12) months. The Outside Building Permit Issuance Date may be administratively extended not more than two (2) times for an additional twelve (12) months per extension. The Planning Director may grant such extension if Developer can demonstrate substantial progress has been made towards obtaining a building permit and show reasonable cause why Developer will not be able to obtain the building permit for the Project by the initial Outside Building Permit Issuance Date and can demonstrate that: (a) the condition of the Property will not adversely affect public health or safety and (b) the continued delay will not create any unreasonable visual or physical detriment to the neighborhood.
3.4 Construction Period. Construction of the Project shall be subject to the provisions of SMMC Section 8.08.070.
3.5 Tiebacks. Excepting any utility conflicts (which Developer may elect to remedy), Developer shall be allowed to install tiebacks, subject to standard terms and conditions as determined by the City’s Director of Public Works or designee, for Fifth Street, Colorado Avenue and Fourth Court. Developer shall compensate the City for such tiebacks in accordance with the City’s tieback fees then in effect. All tiebacks on City property shall be de-tensioned and cut down five feet below grade prior to issuance of Certificate of Occupancy.
3.6 Construction Staging. Developer may use the Fifth Street frontage and a portion of Fourth Court alley for construction staging based on City’s customary costs and procedures or permits then in effect. Developer may also use the Colorado Avenue frontage for construction staging provided that such usage, including any reasonable and feasible mitigation measures, does not materially interfere with the construction of the Exposition Light Rail.
3.7 Damage or Destruction. If the Project, or any part thereof, is damaged or destroyed during the term of this Agreement, Developer shall be entitled to reconstruct the Project in accordance with this Agreement if: (a) Developer obtains a building permit for this reconstruction prior to the expiration of this Agreement and (b) the Project is found to be consistent with the City’s General Plan, and any applicable Specific Plan.
3.8 Completed and Final Landmarks Commission Review. Demolition of the existing building(s) located on the Property shall be exempt from any further Landmarks Commission review up through the Outside Building Permit Issuance Date, including any extensions thereof.
PROJECT FEES, EXACTIONS,
4.1 Fees, Exactions, Mitigation Measures and Conditions. Except as expressly set forth in Section 2.7.2 (relating to Community Benefits), Section 4.2 (relating to modifications), and Section 5.2 (relating to Subsequent Code Changes) below, the City shall charge and impose only those fees, exactions, mitigation measures, conditions, and standards of construction set forth in this Agreement, including Exhibits “C”, “D” and “I” attached hereto, and no others. If any of the mitigation measures or conditions set forth on Exhibit “D” is satisfied by others, Developer shall be deemed to have satisfied such measures or conditions.
4.2 Conditions on Modifications. The City may impose fees, exactions, mitigation measures and conditions in connection with its approval of Minor or Major Modifications, provided that all fees, exactions, mitigation measures and conditions shall be in accordance with any applicable law.
4.3 Implementation of Mitigation Measures and Conditions of Approval.
4.3.1 Compliance with Mitigation Measures and Conditions of Approval. Developer shall be responsible for implementing the mitigation measures set forth in Section A of Exhibit “D” attached hereto, and Developer shall be responsible to adhere to the conditions of approval set forth in Section B of Exhibit “D” in accordance with the timelines established in Exhibit "D".
4.3.2 Survival of Mitigation Measures and Conditions of Approval. If Developer proceeds with the construction of the Project, except as otherwise expressly limited in this Agreement, the obligations and requirements imposed by the mitigation measures and conditions of approval set forth in the attached Exhibit “D” shall survive the expiration of the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and shall continue in effect for the life of the Project. Notice of the mitigation measures and conditions of approval shall be recorded by the City separately and concurrently with this Agreement.
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.
(a) “Existing Regulations” collectively means all of the following which are in force and effect as of the Effective Date: (i) the General Plan (including, without limitation, the LUCE); (ii) the Zoning Ordinance except as modified herein; (iii) the IZO; (iv) any and all ordinances, rules, regulations, standards, specifications and official policies of the City governing, regulating or affecting the demolition, grading, design, development, building, construction, occupancy or use of buildings and improvements or any exactions therefore, except as amended by this Agreement; and (v) the development standards and procedures in Article 2 of this Agreement.
(b) “Subsequent Code Changes” collectively means all of the following which are adopted or approved subsequent to the Effective Date, whether such adoption or approval is by the City Council, any department, division, office, board, commission or other agency of the City, by the people of the City through charter amendment, referendum, initiative or other ballot measure, or by any other method or procedure: (i) any amendments, revisions, additions or deletions to the Existing Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications and official policies of the City governing or affecting the grading, design, development, construction, occupancy or use of buildings or improvements or any exactions therefor. “Subsequent Code Changes” includes, without limitation, any amendments, revisions or additions to the Existing Regulations imposing or requiring the payment of any fee, special assessment or tax.
5.1.2 Existing Regulations Govern the Project. Except as provided in Section 5.2, development of the Buildings and improvements that will comprise the Project, including without limitation, the development standards for the demolition, grading, design, development, construction, occupancy or use of such Buildings and improvements, and any exactions therefor, shall be governed by the Existing Regulations. The City agrees that this Agreement is consistent with the General Plan, including the LUCE, as more fully described in the Recitals. Any provisions of the Existing Regulations inconsistent with the provisions of this Agreement, to the extent of such inconsistencies and not further, are hereby deemed modified to that extent necessary to effectuate the provisions of this Agreement. The Project shall be exempt from: (a) all Discretionary Approvals or review by the City or any agency or body thereof, other than the matters of architectural review by the ARB as specified in Section 6.1 and review of modifications to the Project as expressly set forth in Sections 2.4.2 and 2.4.3; (b) the application of any subsequent local development or building moratoria, development or building rationing systems or other restrictions on development which would adversely affect the rate, timing, or phasing of construction of the Project, and (c) Subsequent Code Changes which are inconsistent with this Agreement.
5.2 Permitted Subsequent Code Changes.
5.2.1 Applicable Subsequent Code Changes. Notwithstanding the terms of Section 5.1, this Agreement shall not prevent the City from applying to the Project the following Subsequent Code Changes set forth below in this Section 5.2.1.
(a) Processing fees and charges imposed by the City to cover the estimated actual costs to City of processing applications for development approvals including: (i) all application, permit, and processing fees incurred for the processing of this Agreement, any administrative approval of a Minor Modification, or any amendment of this Agreement in connection with a Major Modification; (ii) all building plan check and building inspection fees for work on the Property in effect at the time an application for a grading permit or building permit is applied for; and (iii) the public works plan check fee and public works inspection fee for public improvements constructed and installed by Developer and (iv) fees for monitoring compliance with any development approvals, or any environmental impact mitigation measures; provided that such fees and charges are uniformly imposed by the City at similar stages of project development on all similar applications and for all similar monitoring.
(b) General or special taxes, including, but not limited to, property taxes, sales taxes, parcel taxes, transient occupancy taxes, business taxes, which may be applied to the Property or to businesses occupying the Property; provided that (i) the tax is of general applicability City-wide and does not burden the Property disproportionately to other similar developments within the City; and (ii) the tax is not a levy, assessment, fee or tax imposed for the purpose of funding public or private improvements on other property located within the Downtown Core (as defined in the City’s General Plan as of the Effective Date).
(c) Procedural regulations relating to hearing bodies, petitions, applications, notices, documentation of findings, records, manner in which hearings are conducted, reports, recommendations, initiation of appeals, and any other matters of procedure; provided such regulations are uniformly imposed by the City on all matters, do not result in any unreasonable decision-making delays and do not affect the substantive findings by the City in approving this Agreement or as otherwise established in this Agreement.
(d) Regulations governing construction standards and specifications which are of general application that establish standards for the construction and installation of structures and associated improvements, including, without limitation, the City’s Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code; provided that such construction standards and specifications are applied on a City-wide basis and do not otherwise limit or impair the Project approvals granted in this Agreement unless adopted to meet health and safety concerns.
(e) Any other City regulations to which Developer has consented in writing.
(f) Collection of such fees or exactions as are imposed and set by governmental entities not controlled by City but which are required to be collected by City.
(g) Regulations which do not impair the rights and approvals granted to Developer under this Agreement. For the purposes of this Section 5.2.1(g), regulations which impair Developer’s rights or approvals include, but are not limited to, regulations which (i) materially increase the cost of the Project (except as provided in Section 5.2.1(a), (b), and (d) above), or (ii) which would materially delay development of the Project or that would cause a material change in the uses of the Project as provided in this Agreement.
5.2.2 New Rules and Regulations. This Agreement shall not be construed to prevent the City from applying new rules, regulations and policies in those circumstances specified in Government Code Section 65866.
5.2.3 State or Federal Laws. In the event that state or federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations; provided that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City and Developer shall use reasonable efforts to identify, assemble and copy three identical sets of the Existing Regulations, to be retained by the City and Developer, so that if it becomes necessary in the future to refer to any of the Existing Regulations, there will be a common set of the Existing Regulations available to all Parties.
5.4 Conflicting Enactments. Except as provided in Section 5.2 above, any Subsequent Code Change which would conflict in any way with or be more restrictive than the Existing Regulations shall not be applied by the City to any part of the Property. Developer may, in its sole discretion, give the City written notice of its election to have any Subsequent Code Change applied to such portion of the Property as it may have an interest in, in which case such Subsequent Code Change shall be deemed to be an Existing Regulation insofar as that portion of the Property is concerned. If there is any conflict or inconsistency between the terms and conditions of this Agreement and the Existing Regulations, the terms and conditions of this Agreement shall control.
5.5 Timing of Development. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the parties’ agreement. It is the intent of Developer and the City to cure that deficiency by expressly acknowledging and providing that any Subsequent Code Change that purports to limit over time the rate or timing of development or to alter the sequencing of development phases (whether adopted or imposed by the City Council or through the initiative or referendum process) shall not apply to the Property or the Project and shall not prevail over this Agreement. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed by the City on the amount of total square feet or the number of buildings, structures, residential units that can be built each year on the Property except as expressly provided in this Agreement.
ARCHITECTURAL REVIEW BOARD
6.1 Architectural Review Board Approval. The Project shall be subject to review and approval or conditional approval by the ARB in accordance with design review procedures in effect under the Existing Regulations. Consistent with Existing Regulations, the ARB cannot require modifications to the building design which negates the fundamental development standards established by this Agreement. For example, the ARB cannot require reduction in the overall height of the building, reduction in the number of stories in the building, reduction in the number of hotel guest rooms, or reduction in Floor Area greater than two percent (2%). Decisions of the ARB shall be appealable to the Planning Commission in accordance with the Existing Regulations.
6.2 Expiration of ARB Approval. Notwithstanding any provision of the Existing Regulations, no ARB approval granted with respect to the Project shall expire prior to expiration of the Outside Building Permit Issuance Date, including any extensions thereof.
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, (e) tieback and shoring permits, and (f) temporary and final certificates of occupancy.
7.1.2 “Technical Permit Applications” means any applications required to be filed by Developer for any Technical City Permits.
7.2 Diligent Action by City.
7.2.1 Upon satisfaction of the conditions set forth in Section 7.3, the City shall accept the Technical Permit Applications filed by Developer with the City and shall diligently proceed to process such Technical Permit Applications to completion.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the City shall diligently issue the Technical City Permits which are the subject of the Technical Permit Applications.
7.3.1 Acceptance and Processing of Technical Permit Applications. The obligation of the City to accept and diligently process the Technical Permit Applications which are filed by Developer, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions:
(a) Developer shall have completed and filed any such Technical Permit Applications which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided that such procedures and policies are uniformly in force and effect throughout the City;
(b) Developer shall have paid all processing and permit fees established by the City in connection with the filing and processing of any Technical Permit Application which are in effect on the date when the Technical Permit Application is filed; provided that such fees are uniformly in force and effect throughout the City; and
(c) If required for the particular Technical Permit Application, Developer shall have obtained the approval of the ARB referred to in Section 6.1.1 above.
7.3.2 Issuance of a Technical City Permit. The obligation of the City to issue a Technical City Permit which is the subject of a Technical Permit Application filed by Developer is subject to the satisfaction of the following conditions (and only such conditions and no others):
(a) Developer shall have complied with all of its obligations under this Agreement which are required to be performed prior to or concurrent with the issuance of the Technical City Permits for the proposed Buildings;
(b) Developer shall have received any permits or approvals from other governmental agencies which are required by law to be issued prior to or concurrent with the issuance of the Technical City Permits for the proposed Buildings;
(c) The proposed Buildings conform to the development standards for such Buildings established in this Agreement. In the event that a proposed Building is not in conformance with the development standards, Developer shall have the right to seek any relief from such standards under the procedures then available in the City; and
(d) The proposed Buildings conform to the Administrative and Technical Construction Codes of the City (Article VIII, Chapter 1 of the Santa Monica Municipal Code) (the “Technical Codes”) in effect on the date that the Technical Permit Application is filed .
7.3.3 New Technical Requirements. From time to time, the City’s Technical Codes are amended to meet new technical requirements related to techniques of building and construction. If the sole means of achieving compliance for the Project with such revisions to the Technical Codes made after the Effective Date (“New Technical Requirements”) would require an increase from the allowable Building Height established in this Agreement for the Project, then the Planning Director is hereby authorized to grant Developer limited relief from the allowable Building Height without amending this Agreement if the requested relief is in compliance with the City’s General Plan. Any such approval shall be granted only after the Planning Director’s receipt of a written request for such relief from Developer. Developer is required to supply the Planning Director with written documentation of the fact that compliance with the New Technical Requirements cannot be achieved by some other method. Any such relief shall only be granted to the extent necessary in the Planning Director’s determination for Developer to comply with the New Technical Requirements.
7.4 Duration of Technical City Permits. The duration of Technical City Permits issued by the City, and any extensions of the time period during which such Technical City Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. Subject to the terms of the next sentence, the lapse or expiration of a Technical City Permit shall not preclude or impair Developer from subsequently filing another Technical Permit Application for the same matter during the Term of this Agreement, which shall be processed by the City in accordance with the provisions of this ARTICLE 7. Notwithstanding anything to the contrary in this Agreement, if Developer obtains building permits for the Project and, at any time after the Outside Construction Start Date, such building permits expire or are revoked pursuant to the applicable terms of the SMMC (as the same may be amended from time to time), then Developer may not subsequently apply for new building permits for the Project without first obtaining the prior written consent of the Planning Director, which may be granted or withheld in the Planning Director’s sole discretion.
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.
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.
9.2.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue for twenty-five (25) years after the date on which the Hotel first opens for business (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.
PERIODIC REVIEW OF COMPLIANCE
10.1 City Review. The City shall review compliance with this Development Agreement once each year, on or before each March (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 1st of each year, Developer shall deliver to the City a written report demonstrating that Developer has been in good faith compliance with this Agreement during the twelve (12) month period prior to the anniversary of the Effective Date. The written report shall be provided in the form established by the City. For purposes of this Agreement, the phrase “good faith compliance” shall mean the following: (a) compliance by Developer with the requirements of the Existing Regulations, except as otherwise modified by this Agreement; and (b) compliance by Developer with the terms and conditions of this Agreement, subject to the existence of any specified Excusable Delays (as defined in Section 15.8 below) which prevented or delayed the timely performance by Developer of any of its obligations under this Agreement.
10.3 Information to be Provided to Developer. Prior to any public hearing concerning the Periodic Review of this Agreement, the City shall deliver to both Developer and Owner a copy of all staff reports prepared in connection with a Periodic Review, written comments from the public and, to the extent practical, all related exhibits concerning such Periodic Review. If the City delivers to Developer a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver to Developer and Owner copies of all staff reports prepared in connection with such Notice of Breach, all written comments from the public, and all related exhibits concerning such Notice of Breach.
10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City reasonably concludes on the basis of substantial evidence that Developer has not demonstrated that it is in good faith compliance with this Agreement, then the City may issue and deliver to Developer and Owner a written Notice of Breach pursuant to Section 11.1 below, and Developer and Owner shall have the opportunity to cure the default identified in the Notice of Breach during the cure periods and in the manner provided by Section 11.2 and Section 11.3, as applicable.
10.5 Failure of Periodic Review. The City’s failure to review at least annually compliance by Developer with the terms and conditions of this Agreement shall not constitute or be asserted by any Party as a breach by any other Party of this Agreement.
10.6 Termination of Development Agreement. If Developer or Owner fails to timely cure any item(s) of non-compliance set forth in a Notice of Breach, then the City shall have the right but not the obligation to initiate proceedings for the purpose of terminating this Agreement pursuant to Section 11.4 below.
10.7 City Cost Recovery. Following completion of each Periodic Review, Developer shall reimburse the City for its actual and reasonable costs incurred in connection with such review provided that City has provided Developer with an invoice.
11.1 Notice and Cure.
11.1.1 Breach. If any Party fails to substantially to perform any term, covenant or condition of this Agreement which is required on its part to be performed (a “Breach”), the non-defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non-defaulting Party has first sent a written notice of Breach (a “Notice of Breach”), in the manner required by Section 15.1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice of Breach to Owner and to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance with Article 12. The City shall accept performance by Owner of any covenant, condition, or agreement on Developer’s part to be performed hereunder with the same force and effect as though performed by Developer.
11.1.2 Monetary Breach. In the case of a monetary Breach by Developer, Developer shall promptly commence to cure the identified Breach and shall complete the cure of such Breach within thirty (30) business days after receipt by Developer of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable evidence of the Excusable Delay.
11.1.3 Non-Monetary Breach. In the case of a non-monetary Breach by any Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for a non-monetary Breach shall be extended as is reasonably necessary to remedy such Breach; provided that the alleged defaulting Party commences such cure promptly after receiving the Notice of Breach and continuously and diligently pursues such remedy at all times until such Breach is cured.
11.1.4 Excusable Delay. Notwithstanding anything to the contrary contained in this Agreement, the City’s exercise of any of its rights or remedies under this Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8 below.
11.2 Remedies for Monetary Default. If there is a Breach by Developer in the performance of any of its monetary obligations under this Agreement which remains uncured (a) thirty (30) business days after receipt by Developer and Owner 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, Owner and Developer acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance is an appropriate remedy for the enforcement of this Agreement. Therefore, unless otherwise expressly provided herein, the remedy of specific performance shall be available to the non-defaulting party if the other Party causes an Event of Non-Monetary Default to occur.
11.3.3 Writ of Mandate. The City, Owner and Developer hereby stipulate that Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy any Event of Non-Monetary Default by the City of its obligations and duties under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary standard or the standard of review applicable to any action of, or approval by, the City pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by Developer and Owner that the City would not have entered into this Agreement if the City were to be liable in damages under or with respect to this Agreement or the application thereof. Consequently, and except for the payment of attorneys’ fees and court costs, the City shall not be liable in damages to Developer or Owner, and Developer and Owner covenant on behalf of themselves and their successors in interest not to sue for or claim any damages:
(a) for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
The City, Owner and Developer agree that the provisions of this Section 11.3.4 do not apply for damages which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any dispute, controversy, or issue regarding the application, interpretation, or effect of the provisions of this Agreement or the application of any City rules, regulations, or official policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the same may be 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/Owner. It is acknowledged by the City that neither Developer nor Owner would have entered into this Agreement if they were to be liable in damages in connection with any non-monetary default hereunder. Consequently, and except for the payment of attorneys’ fees and court costs, neither Developer nor Owner shall be liable in damages to the City for any nonmonetary default, and the City covenants on behalf of itself not to sue for or claim any damages:
(a) for any non-monetary default hereunder; or
(b) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
The City, Owner and Developer agree that the provisions of this Section 11.3.6 do not apply for damages which:
(a) are for a monetary default; or
(b) do not arise out of or which are not connected with any dispute, controversy or issue regarding the application, interpretation, or effect of the provisions of this Agreement to or the application of, any City rules, regulations, or official policies.
11.3.7 No Other Limitations. Except as expressly set forth in this Section 11.3, the provisions of this Section 11.3 shall not otherwise limit any other rights, remedies, or causes of action that either the City, Owner or Developer may have at law or equity after the occurrence of any Event of Non-Monetary Default.
11.4.1 Default by Developer. If Developer causes either an Event of Monetary Default or an Event of Non-Monetary Default, then the City may commence proceedings to modify or terminate this Agreement pursuant to this Section 11.4.
11.4.2 Procedure for Modification or Termination. The procedures for modification or termination of this Agreement by the City for the grounds set forth in Section 11.4.1 are as follows:
(a) The City shall provide a written notice to Developer and Owner (and to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance of Section 12.1) of its intention to modify or terminate this Agreement unless Developer or Owner (or the Secured Lender) cures or corrects the acts or omissions that constitute the basis of such determinations by the City (a “Hearing Notice”). The Hearing Notice shall be delivered by the City to Developer and Owner in accordance with Section 15.1 and shall contain the time and place of a public hearing to be held by the City Council on the determination of the City to proceed with modification or termination of this Agreement. The public hearing shall not be held earlier than: (i) thirty-one (31) days after delivery of the Hearing Notice to Developer and Owner or (ii) if a Secured Lender has delivered a Request for Notice in accordance with Section 12.1, the day following the expiration of the “Secured Lender Cure Period” (as defined in Section 12.1).
(b) If, following the conclusion of the public hearing, the City Council: (i) determines that an Event of Non-Monetary Default has occurred or the Developer has not been in good faith compliance with this Agreement pursuant to Section 10.1, as applicable and (ii) further determines that neither Developer or Owner (or the Secured Lender, if applicable) has cured (within the applicable cure periods) the acts or omissions that constitute the basis of the determination under clause (i) above or if those acts or omissions could not be reasonably remedied prior to the public hearing that neither Developer or Owner (or the Secured Lender) has in good faith commenced to cure or correct such acts or omissions prior to the public hearing or is not diligently and continuously proceeding therewith to completion, then upon making such conclusions, the City Council may modify or terminate this Agreement. The City cannot unilaterally modify the provisions of this Agreement pursuant to this Section 11.4. Any such modification requires the written consent of Developer and Owner. If the City Council does not terminate this Agreement, but proposes a modification to this Agreement as a result of the public hearing and Developer and Owner do not (within five (5) days of receipt) execute and deliver to the City the form of modification of this Agreement submitted to Developer by the City, then the City Council may elect to terminate this Agreement at any time after the sixth day after Developer’s and Owner’s receipt of such proposed modification.
11.5 Cessation of Rights and Obligations. If this Agreement is terminated by the City pursuant to and in accordance with Section 11.4, the rights, duties and obligations of the Parties under this Agreement shall cease as of the date of such termination, except only for those rights and obligations that expressly survive the termination of this Agreement. In such event, any and all benefits, including money received by the City prior to the date of termination, shall be retained by the City.
11.6 Completion of Improvements. Notwithstanding the provisions of Sections 11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Developer has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit issued by the City, then Developer shall have acquired a vested right to complete construction of the Buildings in accordance with the terms of the building permit and occupy or use each such Building upon completion for the uses permitted for that Building as provided in this Agreement. Any Building completed or occupied pursuant to this Section 11.6 shall be considered legal non-conforming subject to all City ordinances standards and policies as they then exist governing legal non-conforming buildings and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district.
12.1 Encumbrances on the Property. This Agreement shall not prevent or limit Developer or Owner (in their sole discretion), from encumbering the Property (in any manner) or any portion thereof or any improvement thereon by any mortgage, deed of trust, assignment of rents or other security device securing financing with respect to the Property or the Developer’s ground lease (a “Mortgage”). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a “Secured Lender”) on the Property or on Developer’s ground lease shall be entitled to the rights and privileges set forth in this Article 12. Any Secured Lender may require from the City certain interpretations of this Agreement. The City shall from time to time, upon request made by Developer or Owner, meet with Developer/Owner and representatives of each of its Secured Lenders to negotiate in good faith any Secured Lender’s request for interpretation of any part of this Agreement. The City will not unreasonably withhold, condition or delay the delivery to a Secured Lender of the City’s written response to any such requested interpretation.
12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section 12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any Event of Monetary Default nor any Event of Non-Monetary Default shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value.
12.1.2 Priority of Agreement. This Agreement shall be superior and senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Secured Lender or its successor in interest (whether pursuant to foreclosure, trustee’s sale, deed in lieu of foreclosure, lease termination or otherwise) shall be subject to all of the terms and conditions of this Agreement.
12.1.3 Right of Secured Lender to Cure Default.
(a) A Secured Lender may give notice to the City, specifying the name and address of such Secured Lender and attaching thereto a true and complete copy of the Mortgage held by such Secured Lender, specifying the portion of the Property that is encumbered by the Secured Lender’s lien (a “Request for Notice”). If the Request for Notice has been given, at the same time the City sends to Developer and Owner any Notice of Breach or Hearing Notice under this Agreement, then if such Notice of Breach or Hearing Notice affects the portion of the Property encumbered by the Secured Lender’s lien, the City shall send to such Secured Lender a copy of each such Notice of Breach and each such Hearing Notice from the City to Developer and Owner. The copy of the Notice of Breach or the Hearing Notice sent to the Secured Lender pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the City. The period within which a Secured Lender may cure a particular Event of Monetary Default or Event of Non-Monetary Default shall not commence until the City has sent to the Secured Lender such copy of the applicable Notice of Breach or Hearing Notice.
(b) After a Secured Lender has received a copy of such Notice of Breach or Hearing Notice, such Secured Lender shall thereafter have a period of time (in addition to any notice and/or cure period afforded to Developer under this Agreement) equal to: (a) ten (10) business days in the case of any Event of Monetary Default and (b) thirty (30) days in the case of any Event of Non-Monetary Default, during which period the Secured Lender may provide a remedy or cure of the applicable Event of Monetary Default or may provide a remedy or cure of the applicable Event of Non-Monetary Default; provided that if the cure of the Event of Non-Monetary Default cannot reasonably be completed within thirty days, Secured Lender may, within such 30-day period, commence to cure the same and thereafter diligently prosecute such cure to completion (a “Secured Lender’s Cure Period”). If Developer has caused an Event of Monetary Default or an Event of Non-Monetary Default, then each Secured Lender shall have the right to remedy such Event of Monetary Default or an Event of Non-Monetary Default, as applicable, or to cause the same to be remedied prior to the conclusion of the Secured Lender’s Cure Period and otherwise as herein provided. The City shall accept performance by any Secured Lender of any covenant, condition, or agreement on Developer’s part to be performed hereunder with the same force and effect as though performed by Developer.
(c) The period of time given to the Secured Lender to cure any Event of Monetary Default or an Event of Non-Monetary Default by Developer which reasonably requires that said Secured Lender be in possession of the Property to do so, shall be deemed extended to include the period of time reasonably required by said Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver or otherwise) promptly and with due diligence; provided that during such period all other obligations of Developer under this Agreement, including, without limitation, payment of all amounts due, are being duly and promptly performed.
12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under this Agreement to perform the obligations of Developer’s or the affirmative covenants of Developer’s hereunder or to guarantee such performance unless and until such time as a Secured Lender takes possession or becomes the owner of the estate covered by its Mortgage. If the Secured Lender takes possession or becomes the owner of any portion of the Property, then from and after that date, the Secured Lender shall be obligated to comply with all provisions of this Agreement; provided that the Secured Lender shall not be responsible to the City for any unpaid monetary obligations of Developer that accrued prior to the date the Secured Lender became the fee owner of the Property or the tenant of Developer’s ground lease.
(b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City’s authority to terminate this Agreement, as against any Secured Lender as well as against Developer and Owner if any curable Event of Monetary Default or an Event of Non-Monetary Default is not completely cured within the Secured Lender’s Cure Period.
TRANSFERS AND ASSIGNMENTS
13.1 Transfers and Assignments.
13.1.1 Not Severable from Property Interests. This Agreement shall not be severable from the Property and any transfer of the Property or any portion thereof, including but not limited to Developer’s ground lease, shall automatically operate to transfer the benefits and burdens of this Agreement with respect to the transferred Property or transferred portions, as applicable.
13.1.2 Transfer Rights. Developer may freely sell, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Property, including its ground lease, without the consent of the City. Developer shall, however, give written notice to the other Parties, in accordance with Section 15.1, of any such transfer of a Property interest, disclosing in such notice (a) the identity of the transferee of the Developer’s interest in Property (the “Developer’s Transferee”), (b) the nature of the Property interest that has been transferred, and (c) the address of the Developer’s Transferee as applicable. Similarly, Owner may freely sell, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Property, including its fee interest, without the consent of the City. Owner shall, however, give written notice to the other Parties, in accordance with Section 15.1, of any such transfer of a Property interest, disclosing in such notice (a) the identity of the transferee of the Property (“Property Transferee”), (b) the nature of the Property interest that has been transferred, and (c) the address of the Property Transferee as applicable.
13.2 Release Upon Transfer. Upon the sale, transfer, exchange or hypothecation of the rights and interests of Developer to the Property, Developer shall be released from its obligations under this Agreement to the extent of such sale, transfer or exchange with respect to the Property if : (a) Developer has provided written notice of such transfer to City; and (b) Developer’s Transferee executes and delivers to City a written agreement in which Developer’s Transferee expressly and unconditionally assumes all of the obligations of Developer under this Agreement with respect to Developer’s Property interest in the form of Exhibit "L" attached hereto (the “Assumption Agreement”). Upon such transfer of Developer’s Property interest and the express assumption of Developer’s obligations under this Agreement by Developer’s Transferee, the City agrees to look solely to Developer’s Transferee for compliance with the provisions of this Agreement. Any such Developer’s Transferee shall be entitled to the benefits of this Agreement as “Developer” hereunder and shall be subject to the obligations of this Agreement. Failure to deliver a written Assumption Agreement hereunder shall not affect the transfer of the benefits and burdens as provided in Section 13.1, provided that the transferor shall not be released from its obligations hereunder unless and until the executed Assumption Agreement is delivered to the City.
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.
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:
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
Palmetto Hospitality of Santa Monica I, LLC
100 Dunbar Street, Suite 402
Spartanburg, SC 29306
Attn: General Manager
Fax: (864) 596-8934
With copies to:
Courtyard by Marriott
1554 Fifth Street
Santa Monica, California 90401
Attn: General Manager
Harding Larmore Kutcher & Kozal, LLP
1250 Sixth Street, Suite 200
Santa Monica, California 90401
Attn: Kenneth L. Kutcher
Fax: (310) 392-3537
1550 5TH STREET LLC
c/o Levy Affiliated
201 Wilshire Blvd, Second Floor
Santa Monica, CA 90401
Attn: Jonathan Kohn, Director of Leasing
Notice given in any other manner shall be effective when received by the addressee. Any Party may change the addresses for delivery of notices to such Party by delivering notice to the other Party in accordance with this provision.
15.2 Entire Agreement; Conflicts. This Agreement represents the entire agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Existing Regulations, then the provisions of this Agreement shall prevail. Should any of the Conditions of Approval set forth in Section B of Exhibit “D” attached hereto conflict with any of the Mitigation Measures set forth in Section A of Exhibit “D” attached hereto, the more stringent or exacting requirement shall control.
15.3 Binding Effect. The Parties intend that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property during the Term for the benefit thereof and that the burdens and benefits thereof shall bind and inure to the benefit of all successors-in-interest to the Parties hereto. Every Party who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Project during the Term is and shall be conclusively deemed to have consented and agreed to every provision contained herein, to the extent relevant to said right, title or interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project.
15.4 Agreement Not for Benefit of Third Parties. This Agreement is made and entered into for the sole protection and benefit of Developer and the City and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
15.5 No Partnership or Joint Venture. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the City and Developer or to render either Party liable in any manner for the debts or obligations of the other.
15.6 Estoppel Certificates. Either Party may, at any time, and from time to time, deliver written notice to the other Party requesting such Party to certify in writing (each, an “Estoppel Certificate”): (a) that this Agreement is in full force and effect, (b) that this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, (c) whether or not, to the knowledge of the responding Party, the requesting Party is in Breach or claimed Breach in the performance of its obligations under this Agreement, and, if so, describing the nature and amount of any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the responding Party, any event has occurred or failed to occur which, with the passage of time or the giving of notice, or both, would constitute an Event of Monetary Default or an Event of Non-Monetary Default and, if so, specifying each such event. A Party receiving a request for an Estoppel Certificate shall execute and return such Certificate within thirty (30) days following the receipt of the request therefor. If the party receiving the request hereunder does not execute and return the certificate in such 30-day period and if circumstances are such that the Party requesting the notice requires such notice as a matter of reasonable business necessity, the Party requesting the notice may seek a second request which conspicuously states “FAILURE TO EXECUTE THE REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE DEVELOPMENT AGREEMENT” and which sets forth the business necessity for a timely response to the estoppel request. If the Party receiving the second request fails to execute the Estoppel Certificate within such 15-day period, it shall be conclusively deemed that the Agreement is in full force and effect and has not been amended or modified orally or in writing, and that there are no uncured defaults under this Agreement or any events which, with passage of time of giving of notice, of both, would constitute a default under the Agreement. The City Manager shall have the right to execute any Estoppel Certificate requested by Developer or Owner under this Agreement. The City acknowledges that an Estoppel Certificate may be relied upon by any Developer’s Transferee, Property Transferee, Secured Lender or other party.
15.7 Time. Time is of the essence for each provision of this Agreement of which time is an element.
15.8.1 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 injunctive relief, restraining orders, restrictions or moratoria by judicial decisions or by litigation, contesting the validity, or seeking the enforcement or clarification of, this Agreement or the Environmental Impact Report (“EIR”) related to the Project -- or the project concurrently approved by the City for the project site at 501 Colorado Avenue, Santa Monica, California -- whether instituted by Developer, the City or any other person or entity, or the filing of a lawsuit by any Party arising out of this Agreement, the EIR, the corresponding Mitigation Monitoring Program, the Project’s Statement of Overriding Considerations, or any permit or approval Developer deems necessary or desirable for the implementation of the Project;
(d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement or the development agreement concurrently approved by the City as to the project at 501 Colorado Avenue, Santa Monica, California;
(e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes;
(f) Any inability of the Developer to proceed with construction of the Project due to remediation activities related to soil or ground water contamination if they must be completed prior to commencement of construction, not to exceed twelve (12) months;
(g) Any inability of the Developer to proceed with construction due to construction of the Exposition Light Rail line or station or the City’s Colorado Esplanade Project, not to exceed twelve (12) months; and
(h) Failure of the City to timely perform its obligations hereunder, including its obligations under Section 7.2 above.
15.8.2 Under no circumstances shall the inability of Developer to secure financing be an Excusable Delay to the obligations of Developer except to the extent the inability to secure financing is directly associated with war, insurrection, walk-outs, riots, acts of terrorism, floods, earthquakes, fires, casualties, acts of God, or similar grounds beyond the control of Developer.
15.8.3 In order for an extension of time to be granted for any Excusable Delay, Developer must deliver to the City written notice of the commencement of the Excusable Delay within sixty (60) days after the date on which Developer becomes aware of the existence of the Excusable Delay. The extension of time for an Excusable Delay shall be for the actual period of the delay.
15.8.4 Nothing contained in this Section 15.8 is intended to modify the terms of either Section 5.1.2 or Section 5.5 of this Agreement.
15.9 Governing 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 Party Litigation. If any third party lawsuit is filed against the City or Developer relating to this Agreement or to other development issues affecting the Property, the City shall not delay or stop the development, processing or construction of the Property, or issuance of the City Technical Permits, unless the third party obtains a court order preventing the activity. Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8(c), after service on the City or Developer of the initial petition or complaint challenging this Agreement or the Project, the Developer may apply to the Planning Director for a tolling of the applicable deadlines for Developer to otherwise comply with this Agreement. Within 40 days after receiving such an application, the Planning Director shall either toll the time period for up to five years during the pendency of the litigation or deny the requested tolling.
15.15.5 State, Federal or Case Law. Where any state, federal or case law allows the City to exercise any discretion or take any act with respect to that law, the City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement.
15.16 Venue. Any legal action or proceeding among the Parties arising out of this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California.
15.17 Exhibits. The following exhibits which are part of this Agreement are attached hereto and each of which is incorporated herein by this reference as though set forth in full:
Exhibit “A” Legal Description of the Property
Exhibit “B” Project Plans
Exhibit “C” Permitted Fees and Exactions
Exhibit “D” Mitigation Measures and Conditions
Exhibit “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-1" Hotel Conditions of Approval to Dispense Alcohol in Sundry Market
Exhibit "G-2" Hotel Conditions of Approval to Dispense Alcohol in Common Areas
Exhibit “H” Restaurant Conditions of Approval to Dispense Alcohol
Exhibit “I” Parking and Deliveries Management Plan
Exhibit "J" [Reserved]
Exhibit "K" Construction Mitigation Plan
Exhibit "L" Assignment and Assumption Agreement
Except as to the Project Plans (attached hereto as Exhibit B) which shall be treated in accordance with Section 2.1 above, the text of this Agreement shall prevail in the event that any inconsistencies exist between the Exhibits and the text of this Agreement.
15.18 Counterpart Signatures. The Parties may execute this Agreement on separate signature pages which, when attached hereto, shall constitute one complete Agreement.
15.19 Certificate of Performance. Upon the completion of the Project, or any phase thereof, or upon performance of this Agreement or its earlier revocation and termination, the City shall provide Developer, upon Developer’s request, with a statement (“Certificate of Performance”) evidencing said completion, termination or revocation and the release of Developer from further obligations hereunder, except for any further obligations which survive such completion, termination or revocation. The Certificate of Performance shall be signed by the appropriate agents of Developer and the City and shall be recorded against title to the Property in the official records of Los Angeles County, California. Such Certificate of Performance is not a notice of completion as referred to in California Civil Code Section 3093.
15.20 Interests of Developer and Property Owner. Owner represents to the City that, as of the Effective Date, it is the owner of the entire Property, subject to encumbrances, easements, covenants, conditions, restrictions, and other matters of record including Developer’s ground lease. Developer represents to the City that, as of the Effective Date, it will have a legal right to a ground lease for the Property for the purpose of developing and operating this Project.
15.21 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and Developer. During the Term of this Agreement, clarifications to this Agreement and the Existing Regulations may be appropriate with respect to the details of performance of the City and Developer. If and when, from time to time, during the term of this Agreement, the City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by the City, Owner and Developer, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by the City, Owner and Developer. Operating memoranda are not intended to and cannot constitute an amendment to this Agreement but mere ministerial clarifications, therefore public notices and hearings shall not be required for any operating memorandum. The City Attorney shall be authorized, upon consultation with, and approval of, Developer, to determine whether a requested clarification may be effectuated pursuant to the execution and delivery of an operating memorandum or whether the requested clarification is of such character to constitute an amendment of this Agreement which requires compliance with the provisions of Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council.
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer.
15.22.1 Developer’s Faithful Performance. The Parties acknowledge and agree that Developer’s faithful performance in developing the Project on the Property and in constructing and installing certain public improvements pursuant to this Agreement and complying with the Existing Regulations will fulfill substantial public needs. The City acknowledges and agrees that there is good and valuable consideration to the City resulting from Developer’s assurances and faithful performance thereof and that same is in balance with the benefits conferred by the City on the Project. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable. Developer acknowledges that the consideration is reasonably related to the type and extent of the impacts of the Project on the community and the Property, and further acknowledges that the consideration is necessary to mitigate the direct and indirect impacts caused by Developer on the Property.
15.22.2 Obligations to be Non-Recourse. As a material element of this Agreement, and in partial consideration for Developer’s execution of this Agreement, the Parties each understand and agree that the City’s remedies for breach of the obligations of Developer under this Agreement shall be limited as described in Sections 11.2 through 11.4 above.
15.23 Not a Public Dedication. Nothing in this Agreement shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Owner and/or Developer, to the extent of their respective property interests, shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose inimical to the development of the Project, including without limitation to prevent any person or entity from obtaining or accruing any prescriptive or other right to use the Property or the Project.
15.24 Other Agreements. The City acknowledges that certain additional agreements may be necessary to effectuate the intent of this Agreement and facilitate development of the Project. The City Manager or his/her designee is hereby authorized to prepare, execute, and record those additional agreements.
15.25 Severability and Termination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law which becomes effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement.
This Agreement is executed by the Parties on the date first set forth above and is made effective on and as of the Effective Date.
PALMETTO HOSPITALITY OF SANTA MONICA I, LLC, a California limited liability company
1550 5TH STREET LLC, a California
limited liability company
CITY OF SANTA MONICA,
a municipal corporation
APPROVED AS TO FORM:
1550 and 1554-58 Fifth Street and 417 Colorado Avenue
Real property in the City of Santa Monica, County of Los Angeles, State of California, described as follows:
LOTS J, K AND L IN BLOCK 195 OF TOWN OF SANTA MONICA IN THE CITY OF SANTA MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3, PAGES 80 AND 81 AND IN BOOK 39, PAGES 45 ET SEQ., OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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 Section 7.60.020) (collected by EPWM) (collected by EPWM)
· Wastewater Capital Facilities Fee (SMMC Section 7.04.460) (collected by EPWM)
· Water Capital Facilities Fee & Water Meter Instillation fee (Water Meter Permit fee) (SMMC Section 7.12.090) (collected by EPWM)
· Fireline Meter fee (SMMC Section 7.12.090) (collected by EPWM)
· Childcare Linkage Fee (SMMC Section 9.72.040). Developer shall execute a contract to pay the fee prior to issuance of a building permit. Developer shall pay the fee prior to the issuance of a final certificate of occupancy for the Project.
· Cultural Arts Fee (SMMC Section 9.04.10.20). Developer shall execute a contract to pay the fee prior to issuance of a building permit. Developer shall pay the fee prior to the issuance of a final certificate of occupancy for the Project.
(d) Upon inspection of the Project during the course of construction, City inspection fees.
These fees shall be reimbursed to Developer in accordance with the City's standard practice should Developer not proceed with development of the Project.
2. Prior to issuance of permits for any construction work in the public right-of-way, or use of public property, Developer shall pay the following City fees:
· Use of Public Property Permit fees (SMMC 7.04.670) (EPWM)
· Utility Excavation Permit fee (SMMC 7.04.010) (EPWM)
· Street Permit fee (SMMC 7.04.790) (EPWM)
3. 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.
AND CONDITIONS OF APPROVAL
SECTION A – MITIGATION MEASURES
1. AQ-2a Air Quality Management Plan. An Air Quality Management Plan for project construction shall be prepared and approved by the City. The Plan would address air quality impacts and outline measures that would be used to reduce impacts. Measures would include:
· Fugitive Dust Control. All construction shall comply with the requirements of SCAQMD Rule 403, Fugitive Dust, which requires the implementation of Reasonably Available Control Measures (RACM) for all fugitive dust sources, and the Air Quality Management Plan (AQMP), which identifies Best Available Control Measures (BACM) and Best Available Control Technologies (BACT) for area sources and point sources, respectively.
· Staging Area. Construction contractors shall establish an on-site construction equipment staging area and construction worker parking lot, located on either paved surfaces or unpaved surfaces subjected to soil stabilization treatments. Control access to public roadways by limiting curb cuts/ driveways to minimize project construction impacts upon roadway traffic operations.
· Non-Vehicular Equipment Engines. Construction contractors shall properly maintain non-vehicular equipment engines to minimize the volume of exhaust emissions.
· Electricity. Construction contractors shall use electricity primarily from power poles, rather than temporary diesel or gasoline powered generators.
· Alternative Fuel Sources. To the extent feasible, construction contractors shall use on-site mobile equipment powered by alternative fuel sources (i.e., methanol, natural gas, propane or butane). Expected use of non-alternative fuels shall be described within the Air Quality Management Plan.
· Inspection of Equipment. Construction contractors shall inspect construction equipment prior to leaving the sites and wash off loose dirt with wheel washers, as necessary.
· Ridesharing/ Shuttle. Construction contractors shall provide encourage ridesharing or provide shuttle service for parking by construction workers in satellite parking lots, as needed.
· PM10 Reduction Measures for Grading Activities. Particulate matter reduction measures from the SCAQMD shall be applied to all grading activities occurring on the project sites throughout the construction phase. These shall include:
- Apply water every 3 hours to disturbed areas within the sites;
- Require minimum soil moisture of 12% for earthmoving by use of a moveable sprinkler system or a water truck;
- Replace ground cover in disturbed areas as quickly as possible. If disturbed graded areas remain inactive for greater than four days, non-toxic soil stabilizers shall be applied; and
- All trucks hauling dirt, sand, soil, or other loose materials shall be tarped with a fabric cover and maintain a freeboard height of 12 inches.
· PM10 Reduction Measures for Haul Road Vehicle Activity. Particulate matter reduction measures from the SCAQMD shall be applied to all haul road vehicle activities occurring on the project sites throughout the construction phase. These shall include:
- Limit on-site vehicle;
- Install pipe-grid trackout-control device to reduce mud/ dirt trackout from exit routes;
- Replace ground cover in disturbed areas as quickly as possible - if disturbed graded areas remain inactive for greater than four days, non-toxic soil stabilizers shall be applied; and
- Apply chemical dust suppressant annually to unpaved parking areas.
· PM10 Reduction Measures for Demolition Activity. Particulate matter reduction measures from the SCAQMD shall be applied to all demolition activities occurring on the project sites throughout the construction phase. These shall include:
- Apply water every 4 hours to the area within 100 feet of a structure being demolished, to reduce vehicle trackout;
- Apply water to disturbed soils after demolition is completed or at the end of each day of cleanup;
- Prohibit demolition activities when wind speeds exceed 25 miles per hour; and
- Apply dust suppressants (e.g. polymer emulsion) to disturbed areas upon completion of demolition.
· Street Sweeping for Mud/dirt Trackout onto Local Streets. During demolition of the existing improvements on the Property and during construction of the Project, implement a street sweeping program with Rule 1186 compliant PM10 efficient vacuum units (14-day frequency).
2. MM CUL-1 Prior to demolition of the existing improvements on the Property, a Historic American Buildings Survey (HABS) Level II recordation document of the existing historic building on the project site shall be prepared. The HABS document shall be prepared by a qualified architectural historian, historic architect, or historic preservation professional who satisfies the Secretary of the Interior’s Professional Qualification Standards for History, Architectural History, or Architecture, pursuant to 36 CFR 61. This document shall include a historical narrative on the architecture and history of the building, its architect, its occupants and their activities during the time of occupancy, and shall record the existing appearance of the building in professional large format HABS photographs. In addition, any existing and available historic photographs as well as design and/ or as-built drawings shall be compiled, reproduced, and incorporated into the recordation document. The building exterior, representative interior spaces, character-defining features, as well as the property setting and contextual views shall be documented. All documentation components shall be completed in accordance with the Guidelines for Architectural and Engineering Documentation (HABS standards). Original archivally-sound copies of the report shall be submitted to the National Park Service, Library of Congress, and the Santa Monica Historical Society. Non-archival copies shall be distributed to the City of Santa Monica Planning Division, and the Santa Monica Museum of Flying.
3. MM CUL-2a If archaeological resources are encountered during implementation of the proposed projects, ground-disturbing activities shall temporarily be redirected from the vicinity of the find. The Applicant shall immediately notify a qualified archaeologist of the find and coordinate with the archaeologist as to the immediate treatment of the find until a proper site visit and evaluation is made by the archaeologist. The archaeologist shall be allowed to temporarily divert or redirect grading or excavation activities in the vicinity in order to make an evaluation of the find and determine appropriate treatment. Treatment may include implementation of archaeological data recovery excavations to remove the resource from the project area or preservation in place. The archaeologist shall prepare a final report about the find and shall be submitted by the Applicant to the lead agency, the South Central Coastal Information Center, and representatives of other appropriate or concerned agencies to signify the satisfactory completion of the project and required mitigation measures. The report shall include documentation and interpretation of the resources recovered including evaluation of the find’s eligibility for listing in the California Register of Historic Places. The landowner, in consultation with the archaeologist and the lead agency, shall designate repositories in the event that archaeological material is recovered. The archaeologist shall also determine the need for archaeological monitoring for any ground-disturbing activities thereafter.
4. MM CUL-2b If human remains are encountered unexpectedly during implementation of the proposed projects, State Health and Safety Code Section 7050.5 requires that no further disturbance shall occur until the County Coroner has made the necessary findings as to origin and disposition pursuant to PRC Section 5097.98. If the remains are determined to be of Native American descent, the coroner has 24 hours to notify the Native American Heritage Commission (NAHC). The NAHC shall then identify the person(s) thought to be the Most Likely Descendent (MLD). The MLD may, with the permission of the land owner, or his or her authorized representative, inspect the site of the discovery of the Native American remains and may recommend to the owner or the person responsible for the excavation work means for treating or disposing, with appropriate dignity, the human remains and any associated grave goods. The MLD shall complete their inspection and make their recommendation within 48 hours of being granted access by the land owner to inspect the discovery. The recommendation may include the scientific removal and nondestructive analysis of human remains and items associated with Native American burials. Upon the discovery of the Native American remains, the landowner shall ensure that the immediate vicinity, according to generally accepted cultural or archaeological standards or practices, where the Native American human remains are located, is not damaged or disturbed by further development activity until the landowner has discussed and conferred, as prescribed in this mitigation measure, with the MLD regarding their recommendations, if applicable, taking into account the possibility of multiple human remains. The landowner shall discuss and confer with the descendants all reasonable options regarding the descendants' preferences for treatment. Whenever the NAHC is unable to identify a MLD, or the MLD identified fails to make a recommendation, or the landowner or his or her authorized representative rejects the recommendation of the descendants and the mediation provided for in Subdivision (k) of Section 5097.94, if invoked, fails to provide measures acceptable to the landowner, the landowner or his or her authorized representative shall inter the human remains and items associated with Native American human remains with appropriate dignity on the property in a location not subject to further and future subsurface disturbance.
5. MM CUL-3a A qualified paleontologist shall attend a pre-grading/excavation meeting and develop a paleontological monitoring program for excavations into older Quaternary Alluvium deposits. A qualified paleontologist is defined as a paleontologist meeting the criteria established by the Society for Vertebrate Paleontology. The qualified paleontologist shall supervise a paleontological monitor who shall be present at such times as required by the paleontologist during construction excavations into native soils associated with older Quaternary Alluvium deposits. Monitoring shall consist of visually inspecting fresh exposures of rock for larger fossil remains and, where appropriate, collecting wet or dry screened sediment samples of promising horizons for smaller fossil remains. The frequency of monitoring inspections shall be determined by the paleontologist and shall be based on the rate of excavation and grading activities, the materials being excavated, and the depth of excavation, and if found, the abundance and type of fossils encountered.
6. MM CUL-3b If a potential fossil is found, the paleontological monitor shall be allowed to temporarily divert or redirect grading and excavation activities in the area of the exposed fossil to facilitate evaluation and, if necessary, salvage. At the Paleontologist’s discretion and to reduce any construction delay, the grading and excavation contractor shall assist in removing rock samples for initial processing. Any fossils encountered and recovered shall be prepared to the point of identification and catalogued before they are donated to their final repository. Any fossils collected shall be donated to a public, non-profit institution with a research interest in the materials, such as the Natural History Museum of Los Angeles County. Accompanying notes, maps, and photographs shall also be filed at the repository.
7. MM CUL-3c The paleontologist shall prepare a report summarizing the results of the monitoring and salvaging efforts, the methodology used in these efforts, as well as a description of the fossils collected and their significance. The report shall be submitted by the Applicant to the lead agency, the Natural History Museum of Los Angeles County, and representatives of other appropriate or concerned agencies to signify the satisfactory completion of the proposed projects and required mitigation measures.
8. MM CUL-4 As part of ongoing planning within the Downtown, the City shall review and identify significant historic resources, including the potential boundaries and key character defining features of the potential Central Business District Historic District as well as eligible contributing structures and determine if such a District meets the criteria of the City’s Landmark and Historic Preservation Ordinance. If this potential District is found to meet ordinance criteria, the City shall consider its adoption as part of the Downtown Specific Plan process. This requirement to review and identify is solely the responsibility of the City and imposes no obligations on Developer nor does it in any way affect the demolition of the existing improvements on the Property.
9. MM GEO-1 The foundation should be designed to distribute the building loads uniformly onto the supporting subgrade. By designing a relatively stiff mat, the settlement of the structure will be relatively uniform. The foundation should be designed to be sufficiently rigid to prevent the introduction of excess stresses in the superstructure above the foundation. Concrete slab-on-grade floors should be underlain by a water vapor retarder. The water vapor retarder should consist of a vapor retarder sheeting underlain by a minimum of 3 inches of compacted, clean, gravel of 0.75 inch maximum size. The granular fill should consist of damp clean sand with at least 10 to 30 percent of the sand passing the 100 sieve. The sand should be free of clay, silt, or organic material. Concrete slabs should be reinforced with at least No. 3 reinforcing bars, places at 18 inches on center in each direction within the slabs middle third. Ultimately, the foundation shall be designed in accordance with the final geotechnical report.
10. MM GEO-2a The means and methods of installation, design and implementation of the shoring system shall be the responsibility of a licensed shoring engineer and general contractor who shall satisfy the requirements of City of Santa Monica Building & Safety and Public Works officials as well as applicable codes and laws. Whenever excavation is made adjacent to existing streets, utilities and structures, there is the potential for movement. The existing structures should be inspected and documented to preclude claims for damage or settlement that are not associated with the construction of the planned development. A monitoring program should be established so excessive movement is detected early. The monitoring program should include optical surveying of the shoring and adjacent streets and buildings to detect any horizontal or vertical movement.
11. MM HAZ-2a Prior to any the issuance of a demolition permit, the contractor shall follow all applicable local, state and federal codes and regulations related to the treatment, handling, and disposal of ACM and LBP.
12. MM HAZ-2b Prior to the issuance of a demolition permit, additional subsurface sampling of soil/bedrock and groundwater shall be conducted to assess potential releases associated with the listed former land uses and the potential migration of contaminants onto the project site. The analytical suite selected shall be consistent with those uses, and shall include applicable analytical methods for appropriate waste characterization and disposal. The sampling strategy shall take into account the locations of potential source areas, and the anticipated lateral and vertical distribution of contaminants in soil and/or groundwater. The results of the investigation shall be documented in a report that is signed by a qualified environmental specialist (e.g., California Professional Geologist, a licensed Professional Engineer, or similarly qualified individual). The report shall include recommendations based upon the findings for additional investigation/remediation if contaminants are detected above applicable screening levels (e.g., excavate and dispose, groundwater and/or soil vapor extraction, or in situ bioremediation).
13. MM HAZ-2c If remediation for contaminated soils is required, all remediation activities shall be accomplished in a manner that reduces risk to below applicable standards and the need for remediation of soil shall be completed prior to or during excavation of the Building site. Closure report or other reports regarding remediation activities of contaminated soil shall be submitted to DTSC or the appropriate governmental agency for review and approval upon completion of remediation actions. If regulatory governmental agencies determine that construction of the projects would interfere with necessary remediation, construction shall be postponed as necessary to allow for adequate remediation.
14. MM NOI-1a Construction Noise Management Plan. A Construction Noise Management Plan shall be prepared and approved by the City. The Plan would address noise and vibration impacts and outline measures that would be used to reduce impacts. Measures would include:
• To the extent that they exceed applicable construction noise limits, excavation, foundation-laying, and conditioning activities shall be restricted to between the hours of 10:00 a.m. and 3:00 p.m., Monday through Friday, in accordance with Section 4.12.110(d) of the Santa Monica Municipal Code.
• The Applicant’s construction contracts shall require implementation of the following construction best management practices (BMPs) by all construction contractors and subcontractors working in or around the project sites to reduce construction noise levels:
- The Applicant and its contractors and subcontractors shall ensure that construction equipment is properly muffled according to manufactures specifications or as required by the City’s Department of Building and Safety, whichever is the more stringent.
- The Applicant and its contractors and subcontractors shall place noise-generating construction equipment and locate construction staging areas away from sensitive uses, where feasible, to the satisfaction of the Department of Building and Safety.
- The Applicant and its contractors and subcontractors shall implement noise attenuation measures which may include, but are not limited to, noise barriers or noise blankets to the satisfaction of the City’s Department of Building and Safety.
• The Applicant’s contracts with its construction contractors and subcontractors shall include the requirement that construction staging areas, construction worker parking and the operation of earthmoving equipment within the project sites, are located as far away from vibration- and noise-sensitive sites as possible. Contract provisions incorporating the above requirements shall be included as part of the projects’ construction documents, which shall be reviewed and approved by the City.
• The Applicant shall require by contract specifications that heavily loaded trucks used during construction shall be routed away from residential streets to the extent possible. Contract specifications shall be included in the proposed projects’ construction documents, which shall be reviewed by the City prior to issuance of a grading permit.
• Meetings shall be coordinated with the management of neighboring buildings such as Step Up on Fifth, Luxe @ 1548, Luxe @ 1539, Silvercrest Retirement Home, and the Colorado Court Building to seek solutions to minimize noise impacts. Additionally, neighboring residents would be notified of the construction schedule and upcoming high level noise events.
15. MM NOI-2a If project construction uses pile driving or vibratory techniques for foundation construction and construction of the Expo LRT has progressed to the point that infrastructure is in place that may be subject to damage from vibration, the Applicant shall install surface vibration monitors to detect vibrations that may affect future operation of the trains. The details of the placement and reporting of the vibration monitors shall be developed in coordination with the Exposition Construction Authority and Los Angeles County Metropolitan Transportation Authority.
16. MM T-1a The Applicant shall prepare, implement and maintain a Construction Impact Mitigation Plan for review and approval prior to issuance of a building permit to address manage traffic during construction and shall be designed to:
· Minimize parking impacts both to public parking and access to private parking to the greatest extent practicable
· Ensure safety for both those constructing the project and the surrounding community
· Prevent substantial truck traffic through residential neighborhoods
The Construction Impact Mitigation Plan shall be subject to review and approval by the following City departments: Public Works, Fire, Planning and Community Development, and Police to ensure that the Plan has been designed in accordance with this mitigation measure. This review shall occur prior to issuance of grading or building permits. It shall, at a minimum, include the following:
Ongoing Requirements throughout the Duration of Construction
· A detailed Construction Impact Mitigation Plan for work zones shall be maintained. At a minimum, this shall include parking and travel lane configurations; warning, regulatory, guide, and directional signage; and area sidewalks, bicycle lanes, and parking lanes. The plan shall include specific information regarding the project’s construction activities that may disrupt normal pedestrian and traffic flow and the measures to address these disruptions. Such plans shall be reviewed and approved by the Strategic and Transportation Planning Division prior to commencement of construction and implemented in accordance with this approval.
· Work within the public right-of-way shall be performed between 9:00 AM and 4:00 PM. This work includes dirt and demolition material hauling and construction material delivery. Work within the public right-of-way outside of these hours shall only be allowed after the issuance of an after-hours construction permit.
· Streets and equipment shall be cleaned in accordance with established PW requirements.
· Trucks shall only travel on a City-approved construction route. Truck queuing/staging shall not be allowed on Santa Monica streets. Limited queuing may occur on the construction site itself.
· An Applicant-funded on-site monitor shall be present to ensure safety when Metro workers are in the immediate vicinity, or when more dangerous activities are occurring (e.g., raising of heavy equipment to roof levels). The Plan shall identify the activities that would prompt the presence of an on-site monitor.
· Materials and equipment shall be minimally visible to the public; the preferred location for materials is to be on-site, with a minimum amount of materials within a work area in the public right-of-way, subject to a current Use of Public Property Permit.
· Any requests for work before or after normal construction hours within the public right-of-way shall be subject to review and approval through the After Hours Permit process administered by the Building and Safety Division.
· Provision of off-street parking for construction workers, which may include the use of a remote location with shuttle transport to the site, if determined necessary by the City of Santa Monica.
Project Coordination Elements That Shall Be Implemented Prior to Commencement of Construction
· The Applicant shall advise the traveling public of impending construction activities (e.g., information signs, portable message signs, media listing/notification, and implementation of an approved Construction Impact Mitigation Plan).
· The Applicant shall obtain a Use of Public Property Permit, Excavation Permit, Sewer Permit, or Oversize Load Permit, as well as any Caltrans permits required, for any construction work requiring encroachment into public rights-of-way, detours, or any other work within the public right-of-way.
· The Applicant shall provide timely notification of construction schedules to all affected agencies (e.g., Big Blue Bus, Police Department, Fire Department, Public Works Department, and Planning and Community Development Department) and to all owners and residential and commercial tenants of property within a radius of 500 feet.
· The Applicant shall coordinate construction work with affected agencies in advance of start of work. Approvals may take up to two weeks per each submittal.
· The Applicant shall obtain Strategic and Transportation Planning Division approval of any haul routes for earth, concrete, or construction materials and equipment hauling.
17. MM T-2a The applicant shall prepare a Construction Impact Mitigation Plan and make its best faith efforts to coordinate with the Caltrans, City of Santa Monica, Los Angeles County Metropolitan Transportation Authority, and the Exposition Construction Authority. The final Construction Impact Mitigation Plan for the proposed hotels shall ensure that transportation mitigation measures set forth do not conflict with the implementation of transportation mitigation measures associated with the Colorado Esplanade Project, Expo LRT, and 520 Colorado Avenue Affordable Housing Project. Any changes to the construction or building plans that may impact the Expo LRT railroad right-of-way shall be communicated in writing by the Applicant or their contractor to Los Angeles County Metro and the Exposition Construction Authority.
SECTION B – CONDITIONS OF APPROVAL
Project Specific Conditions
1. The project shall provide the Significant Project Features and LUCE Community Benefits as established in Section 2.7 of this Agreement.
2. All vehicular areas shall be monitored by hotel staff to ensure that no queuing of delivery, taxi, or passenger vehicles impede the pedestrian path of travel on the adjacent sidewalk or block travel lanes along 5th Street as a result of vehicle loading and unloading operations, or valet operations on the site. Vehicles are prohibited from reversing onto 5th Street from the driveway.
3. In conjunction with Condition No. 2, the City shall monitor the performance of Exhibit I, Parking and Deliveries Management Plan, during the first two years of the hotel’s operation. The City and Developer shall meet bi-annually during this initial two-year monitoring period to evaluate the Parking and Deliveries Management Plan. In the event of vehicle queuing impeding the pedestrian path of travel on the adjacent sidewalk or blocking travel lanes along 5th Street as a result of vehicle loading and unloading operations, or valet operations on the site, the City may impose amendments to the Parking and Deliveries Management Plan that would include operational measures or physical enhancements to help the developer achieve compliance with Condition No. 2. This may include, but is not limited to, changes in parking pricing schedule, additional signage on property, physical barriers to control traffic on site, alterations to the parking layout, and staffing changes. Amendments to the Parking and Deliveries Management Plan shall be considered a minor modification, pursuant to Development Agreement Section 2.4.2, subject to Planning Director approval.
After the initial two years, the City shall monitor the performance of the Parking and Deliveries Management Plan annually as a part of the Development Agreement’s Annual Compliance Report. Furthermore, the City may continue to amend the Parking and Deliveries Management Plan on an ongoing basis throughout the year if queuing occurs impeding the pedestrian path of travel on the adjacent sidewalk or blocking travel lanes along 5th Street as a result of vehicle loading and unloading operations, or valet operations on the site, to ensure compliance with Condition No. 2.
4. Deliveries along the Fourth Court Alley, in conjunction with the hotel use or the leasable space located on the ground floor, shall occur only between the hours of 10am-2pm daily. The City shall monitor the performance of the Fourth Court deliveries biannually for the first two years of the hotel operation to ensure that the deliveries do not unreasonably impede pedestrians, cyclists, or vehicular circulation on Fourth Court between Colorado Avenue (Esplanade) and Broadway, in light of the importance of this connection between the future Expo station and the rest of the Downtown area. At its discretion, the City may impose a change in delivery hours, and shall be considered a minor modification (whether more restrictive or less restrictive), pursuant to Development Agreement Section 2.4.2, subject to Planning Director approval. In no event shall the City impose delivery restrictions that make it infeasible to operate the businesses in the Project.
5. To best accommodate peak parking demand generated by the hotel and to ensure compliance with Condition No. 2, valet or attendant parking service shall be provided between 6pm-9am daily. Furthermore, an increase in the size of a possible ground floor Restaurant as depicted on the plans, as allowed per the DA, may warrant additional valet/attendant parking service hours, including valet or parking attendant service during all hours, as may be determined by the Planning Director. In order to confirm actual peak parking demand, the developer shall prepare and submit a parking occupancy study biannually for the first two years of hotel operation. The study shall include hourly count data from two Thursdays and two Saturdays between the hours of 6 am and midnight. The days selected for study will be approved by the City in advance and the study data will be submitted to the City no less than four (4) weeks in advance of a biannual status meeting to be established for the first two (2) years of hotel operation and for the first two (2) years of the commencement of any Restaurant operations in the Leasable Space. The requirement for valet/parking attendant operations may be revisited, reduced and/or eliminated in concert with the City based on the results of a parking occupancy study. Valet/attendant parking service hours may be amended, pursuant to Development Agreement Section 2.4.2, subject to Planning Director approval.
6. In the event Developer violates or fails to comply with any conditions of approval of this permit, no further permits, licenses, approvals or certificates of occupancy shall be issued until such violation has been fully remedied.
Conformance with Approved Plans
7. This approval is for those plans dated 11/1/13, a copy of which is attached to the Development Agreement as Exhibit B. Project development shall be consistent with such plans, except as otherwise specified in these conditions of approval.
8. Minor amendments to the plans shall be subject to approval by the Director of Planning. A significant change in the approved concept shall be subject to review as provided in the Development Agreement. Construction shall be in conformance with the plans submitted or as modified in accordance with the Development Agreement. Notwithstanding the foregoing, hotel room configurations, circulation, back of house operations, guest amenities and lobby configuration may be amended from time to time in the sole and absolute discretion of the developer or hotel operator.
9. Except as otherwise provided by the Development Agreement, project plans shall be subject to complete Code Compliance review when the building plans are submitted for plan check and shall comply with all applicable provisions of Article IX of the Municipal Code and all other pertinent ordinances and General Plan policies of the City of Santa Monica prior to building permit issuance.
10. The operation of the project shall at all times be conducted in a manner not detrimental to surrounding properties or residents by reason of lights, noise, activities, parking or other actions.
11. The project shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12).
12. Subject to Architecture Review Board review and approval, in the event the bike connection between the future light rail station and the Broadway bike lanes is approved and implemented, the southwest corner of the building and the 4th Court alley building elevation should highlight, and provide building-integrated wayfinding for, the adjacent 4th Court bike connection between the Station and Broadway bike lanes, through use of architectural and/or graphic design elements and/or fixtures on the building’s western elevation; any such signage shall not count towards the maximum allowable signage limitation for the Project. Features may include a bike-oriented façade treatment, bike-oriented signage or graphics, bike-oriented lighting, bike-themed public art, etc. The design of the alley façade at the lower levels should celebrate the adjacent bike connection by including a strong integrated design element.
13. Plans for final design, landscaping, screening, trash enclosures, and signage in the new project shall be subject to review and approval by the Architectural Review Board. In its project review, the Architectural Review Board shall pay particular attention to the quality of building materials, the design of the Fourth Court elevation, enhancements to the ground floor storefront of the leasable space in efforts to increase the amount of outdoor seating/dining areas and/or ways to improve the connection between the interior and outdoor seating/dining areas associated with a Restaurant, and the extent of glazing along the ground floor frontage on Fifth Street.
14. The Architecture Review Board, in its review of the project, shall pay particular attention to the proposed placement of the building columns under the Open Arcade area at the street corner, and determine whether a minor reduction of up to one column and or relocation of the columns would be appropriate to ensure there is adequate space for pedestrian circulation, and adequate space for the proposed bike share/short-term bike parking.
15. Landscaping plans in the new project shall comply with Subchapter 9.04.10.04 (Landscaping Standards) of the Zoning Ordinance including use of water-conserving landscaping materials, landscape maintenance and other standards contained in the Subchapter.
16. Refuse areas, storage areas and mechanical equipment in the new project shall be screened in accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas in the new project shall be of a size adequate to meet on-site need, including recycling. The Architectural Review Board in its review shall pay particular attention to the screening of such areas and equipment. Any rooftop mechanical equipment in the new project shall be minimized in height and area, and shall be located in such a way as to minimize noise and visual impacts to surrounding properties. Unless otherwise approved by the Architectural Review Board, rooftop mechanical equipment in the new project shall be located at least five feet from the edge of the roof.
17. No gas or electric meters for the new project shall be located within the required front or street side yard setback areas. The Architectural Review Board in its review shall pay particular attention to the location and screening of such meters.
18. 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.
19. As appropriate, the Architectural Review Board shall require the use of anti-graffiti materials on surfaces likely to attract graffiti.
Construction Plan Requirements
20. 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.
21. 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.
22. 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.
23. Mechanical equipment in the new project shall not be located on the side of the building, unless otherwise permitted by applicable regulations. Roof locations may be used when the mechanical equipment is installed within a sound-rated parapet enclosure.
24. 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.
25. The Developer shall insure any graffiti on the site is promptly removed through compliance with the City’s graffiti removal program.
26. Upon commencement of the project’s construction, the applicant authorizes reasonable City inspections of the property to ensure compliance with the conditions of approval imposed by the City in approving this project and will bear the reasonable cost of these inspections.
STRATEGIC AND TRANSPORTATION PLANNING
27. Final auto parking, bicycle parking and loading layouts specifications in the new project shall be subject to the review and approval of the Strategic and Transportation Planning Division: http://www.smgov.net/uploadedFiles/Departments/Transportation/Transportation_Management/ParkingStandards.pdf
28. As to the new project, where a driveway, garage, parking space or loading zone intersects with the public right-of-way at the alley or sidewalk, on-site hazardous visual obstruction triangles shall be provided in accordance with SMMC Section 9.04.10.02.090. Please reference the following standards: http://www.smgov.net/uploadedFiles/Departments/Transportation/Transportation_Management/HVO.pdf
29. Slopes of all driveways and ramps used for ingress or egress of parking facilities shall be designed in accordance with the standards established by the Strategic and Transportation Planning Manager but shall not exceed a twenty percent slope. Please reference the following standards:
BIG BLUE BUS
30. For the life of the project, the Developer shall notify all tenants in writing as part of their lease or rental agreement that the City envisions a network of transit services in the Downtown area that may result in public transit services operating on any street in the Downtown area, both on streets currently used by transit or through expansion of service to streets not currently utilized by transit. In addition, new bus stops or bus layover zones may be established on these streets for regular use by either the Big Blue Bus or other fixed route or specialized transit operators. On-street parking may be removed at any time to create a bus zone in an appropriate location for safe vehicular movement and passenger safety regardless of business or residential adjacency. Developer, or Developer’s successor in interest, shall be responsible for ensuring this obligation is satisfied.
31. For the life of the project, the Developer shall notify all tenants in writing as part of their lease or rental agreement that they are located within 1000 feet of a facility used 24 hours per day, 365/6 days per year for the operation and maintenance of the City’s transit and other vehicle fleets and such adjacency may subject them to the continuous sounds associated with operating and maintaining a large fleet of vehicles on a daily basis. The sounds of engines, radios, machinery, equipment, alarms, voices, compression tanks/tools, fueling and washing activities are some but not all of the sounds that might be heard on a 24 hour daily basis. Developer, or Developer’s successor in interest, shall be responsible for ensuring this obligation is satisfied.
32. Structures that include spaces specifically intended for seniors and/or persons with disabilities should include an appropriate space for the boarding and alighting of this population into specialty vehicles in a safe location such that the stopped vehicle will not interfere with traffic flow.
33. During construction, street trees immediately adjacent to the project site shall be maintained, relocated or provided as required in a manner consistent with the City’s Urban Forest Master Plan, per the specifications of the Public Landscape Division of the Community & Cultural Services Department and the City’s Tree Code (SMMC Chapter 7.40). No street trees shall be removed without the approval of the Public Landscape Division.
34. 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.
35. During construction, replace or plant new street trees immediately adjacent to the project site in accordance with the Urban Forest Master Plan and in consultation with the City Arborist
OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT
36. Developer shall enroll the new project in the Savings By Design incentive program if and where available through Southern California Edison prior to submittal of plans for Architectural Review. Developer shall execute an incentive agreement with Southern California Edison prior to the issuance of a building permit.
37. 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.
38. Any work or use of the public right-of-way including any proposed encroachments of on-site improvements into the public right-of-way will require a permit from the Public Works Department (PWD) - Administrative Services Division.
39. 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.
40. 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.
41. Until the completion of construction, a sign shall be posted on the property in a manner consistent with the public hearing sign requirements, which shall identify the address and phone number of the owner, developer and contractor for the purposes of responding to questions and complaints during the construction period. Said sign shall also indicate the hours of permissible construction work.
42. 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.
43. New connections to the sewer or storm drains require a sewer permit from the PWD - Civil Engineering Division. New connections to storm drains owned by Los Angeles County require a permit from the L.A. County Department of Public Works.
44. Upon completion of construction, parking areas and structures and other facilities generating wastewater with potential oil and grease content are required to pretreat the wastewater before discharging to the City storm drain or sewer system. Pretreatment will require that a clarifier or oil/water separator be installed and maintained on site.
45. If the project involves dewatering, developer/contractor shall contact the LA Regional Water Quality Control Board (RWQCB) to obtain an NPDES Permit for discharge of groundwater from construction dewatering to surface water. For more information refer to: http://www.waterboards.ca.gov/losangeles/ and search for Order # R4-2003-0111.
46. If required by City Engineering Division to accommodate any increased sewer demand, prior to the issuance of the first building permit and to the extent such a study is needed, the applicant shall submit a sewer study that shows that the City’s sewer system can accommodate the entire development. Developer shall be responsible to upgrade any downstream deficiencies, to the satisfaction of the Water Resources Manager, if calculations show that the project will cause such mains to receive greater demand than currently being experienced and than can be accommodated. Improvement plans shall be submitted to the Engineering Division. All reports and plans shall also be approved by the Water Resources Engineer.
47. If required by City Engineering Division to accommodate any increased water demand, prior to the issuance of the first building permit and to the extent such a study is needed, the applicant shall submit a water study that shows that the City’s water system can accommodate the entire development for fire flows and all potable needs. Developer shall be responsible to upgrade any water flow/pressure deficiencies, to the satisfaction of the Water Resources Manager, if calculations show that the project will cause such mains to receive greater demand than currently being experienced and than can be accommodated. Improvement plans shall be submitted to the Engineering Division. All reports and plans shall also be approved by the Water Resources Engineer.
48. If required by City Engineering Division to accommodate any increased storm water drainage demand, prior to the issuance of the first building permit and to the extent such a study is needed, the applicant shall submit a hydrology study of all drainage to and from the site to demonstrate adequacy of the existing storm drain system for the entire development. Developer shall be responsible to upgrade any system deficiencies, to the satisfaction of City Engineer, if calculations show that the project will cause such facilities to receive greater demand than currently being experienced and than can be accommodated. All reports and improvement plans shall be submitted to Engineering Division for review and approval. The study shall be performed by a Registered Civil Engineer licensed in the State of California.
49. Absent City approval, developer shall not directly connect to a public storm drain pipe or direct site drainage to the public alley.
50. Prior to and in conjunction with demolition of existing structures, all existing sanitary sewer “house connections” to be abandoned, shall be removed and capped at the “Y” connections.
51. The fire services and domestic services 3-inches or greater must be above ground, on the applicant’s site, readily accessible for testing.
52. Developer is required to meet state cross-connection and potable water sanitation guidelines. Refer to requirements and comply with the cross-connections guidelines available at: http://www.lapublichealth.org/eh/progs/encirp/ehcross.htm. Prior to issuance of a Certificate of Occupancy, a cross-connection inspection shall be completed.
53. 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.
54. 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
55. To mitigate storm water and surface runoff from the project site, an Urban Runoff Mitigation Plan shall be required by the PWD during plan check pursuant to Municipal Code Chapter 7.10. Prior to submittal of landscape plans for Architectural Review Board approval, the applicant shall contact PWD to determine applicable requirements, such as:
a. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution Ordinance for the construction phase and post construction activities;
b. Non-stormwater runoff, sediment and construction waste from the construction site and parking areas is prohibited from leaving the site;
c. Any sediments or materials which are tracked off-site must be removed the same day they are tracked off-site;
d. Excavated soil must be located on the site and soil piles should be covered and otherwise protected so that sediments are not tracked into the street or adjoining properties;
e. No runoff from the construction site shall be allowed to leave the site; and
f. Drainage control measures shall be required depending on the extent of grading and topography of the site.
g. Development sites that result in land disturbance of one acre or more are required by the State Water Resources Control Board (SWRCB) to submit a Storm Water Pollution Prevention Plan (SWPPP). Effective September 2, 2011, only individuals who have been certified by the Board as a “Qualified SWPPP Developer” are qualified to develop and/or revise SWPPPs. A copy of the SWPPP shall also be submitted to the PWD.
56. Prior to implementing any temporary construction dewatering or permanent groundwater seepage pumping, a permit is required from the City Water Resources Protection Program (WRPP). Please contact the WRPP for permit requirements at least two weeks in advance of planned dewatering or seepage pumping. They can be reached at (310) 458-8235.
Public Streets & Right-of-Way
57. Prior to the issuance of a final Certificate of Occupancy for the Project, all required offsite improvements, such as AC pavement rehabilitation, replacement of sidewalk, curbs and gutters, installation of street trees, lighting, etc. shall be designed and installed to the satisfaction of the Public Works Department and Public Landscape Division.
58. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable during the grading and construction phase of the project.
59. Upon completion of the project, sidewalks, curbs, gutters, paving and driveways located immediately adjacent to the Project Site which need replacing or removal as a result of the project or needed improvement prior to the project, as determined by the PWD shall be reconstructed to the satisfaction of the PWD. Design, materials and workmanship shall match the adjacent elements. This is especially true for areas within the City that have architectural concrete, pavers, tree wells, art elements, special landscaping, etc.
60. Upon completion of the project, alley sections immediately adjacent to the Project Site shall be replaced as determined by the PWD. This typically requires full reconstruction of the alley in accordance with City of Santa Monica standards for the full adjacent length of the property.
61. Prior to issuance of an Excavation Permit, a Telecommunications Investigation shall be initiated by the City of Santa Monica Information Systems Department. The telecommunications investigation shall provide a list of recommendations to be considered for incorporation into the project design including, but not limited to measures associated with 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 1km terminating in a new Telecommunications Vault for future interconnection with City network. The final telecommunications design plans for the project site shall be submitted to and approved by the City of Santa Monica Information Systems Department prior to approval of project.
a. Project shall comply with City of Santa Monica Right-of-Way Management Ordinance No. 2129CCS, Section 3 (part), adopted 7/13/04.
62. Prior to submitting plans for plan check and as part of the plan check approval process, Developer shall make arrangements with all affected utility companies and indicate points of connection for all services on the site plan drawing. During the course of constructing the project, Developer shall pay for undergrounding of all overhead utilities, if any, within and along the development frontages. Existing and proposed overhead utilities, if any, may need to be relocated underground while the new project is under construction.
63. Location of Southern California Edison electrical transformer and switch equipment/structures must be clearly shown of the development site plan and other appropriate plans within the project limits. The SCE structures serving the proposed development shall not be located in the public right-of-way.
Resource Recovery and Recycling
64. Development plans must show the refuse and recycling (RR) areas dimensions to demonstrate adequate and easily accessible areas. If the RR areas are completely enclosed, then lighting, ventilation and floor drain connected to sewer will be required. Section 9.04.10.02.151 of the SMMC has dimensional requirements for various sizes and types of projects. Developments that place the RR area in subterranean garages must also provide a bin staging area on their property for the bins to be placed for collection.
65. Contact Resource Recovery and Recycling RRR division to obtain dimensions of the refuse recycling enclosure.
66. Prior to issuance of a building permit for the project, developer shall submit a waste management plan, a map of the enclosure and staging areas with dimensions and a recycling plan to the RRR Division for its approval. All commercial businesses generating 4 cubic yards of trash per week in the new project must have a recycling program in place for its employees and clients/customers. Show compliance with these requirements on the building plans. Project architect should visit the Resource Recovery and Recycling (RRR) website or contact the RRR Division for requirements of the Waste Management Plan and to obtain the minimum dimensions of the refuse recycling enclosure. The recycling plan shall include:
a. List of materials such as white paper, computer paper, metal cans, and glass to be recycled;
b. Location of recycling bins;
c. Designated recycling coordinator;
d. Nature and extent of internal and external pick-up service;
e. Pick-up schedule; and
f. Plan to inform tenants/ occupants of service.
67. 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.
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
68. 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.
69. 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.
70. Buildings four or more stories in height shall be provided with not less than one standpipe during construction.
71. 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.
72. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum rating of 2A-10B:C. Extinguishers shall be located on every floor or level. Maximum travel distance from any point in space or building shall not exceed 75 feet. Extinguishers shall be mounted on wall or installed in cabinet no higher than 4 ft. above finished floor and plainly visible and readily accessible or signage shall be provided.
73. 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.
74. 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 (l) (1)
75. When more than one exit is required they shall be arranged so that it is possible to go in either direction to a separate exit, except deadends not exceeding 20 feet, and 50 feet in fully sprinklered buildings.
76. 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.
77. Show ALL door hardware intended for installation on Exit doors.
78. 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)
79. Stairway Identification shall be in compliance with CBC 1022.8
80. Floor-level exit signs are required in Group A, E, I, R-1, R-2 and R-4 occupancies.
81. 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.
82. 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.
83. 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.
84. An approved fire alarm system shall be installed as follows:
85. 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.
86. Group E Occupancies having occupant loads of 50 or more shall be provided with an approved manual fire alarm system.
87. 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.
88. Plans and specifications for fire alarm systems shall be submitted and approved prior to system installation
89. 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.
90. California Building Code / Santa Monica Fire Department Requirements
Occupancy Classification and Division
· If a change in occupancy or use, identify the existing and all proposed new occupancy classifications and uses
· Assembly (A-1, A-2, A-3), Business (B), Mercantile (M), Residential (R), etc.
· Include all accessory uses
· Height in feet (SMMC defines a High-Rise as any structure greater than 55 feet.)
· Number of stories
· Detail increase in allowable height
· Type I (II-FR.) buildings housing Group B office or Group R, Division 1 Occupancies each having floors used for human occupancy located more than 55 feet above the lowest level of fire department vehicle access shall comply with CBC Section 403.
a. Automatic sprinkler system.
b. Smoke-detection systems.
c. Smoke control system conforming to Chapter 9 section 909.
d. Fire alarm and communication systems.
1. Emergency voice alarm signaling system.
2. Fire department communication system.
e. Central control station. (96 square feet minimum with a minimum dimension of 8’ ft.)
h. Standby power and light and emergency systems.
j. Seismic consideration.
Total Floor Area of Building or Project
· Basic Allowable Floor Area
· Floor Area for each room or area
· Detail allowable area increase calculations
· Type of Construction
· Detail any and all code exceptions being used
Occupant Load Calculations
· Occupancy Classification for each room or area.
· Occupant Load Calculation for each room or area based on use or occupancy
· Total Proposed Occupant Load
Means of Egress
· Exit width calculations
· Exit path of travel
· Exit Signage and Pathway Illumination (low level exit signage)
Atria - Atria shall comply with CBC Section 404 as follows:
· Atria shall not be permitted in buildings containing Group H Occupancies.
· The entire building shall be sprinklered.
· A mechanically operated smoke-control system meeting the requirements of Section 909 and 909.9 shall be installed.
· Smoke detectors shall be installed in accordance with the Fire Code.
· Except for open exit balconies within the atrium, the atrium shall be separated from adjacent spaces by one-hour fire-resistive construction. See exceptions to Section 404.6.
· When a required exit enters the atrium space, the travel distance from the doorway of the tenant space to an enclosed stairway, horizontal exit, exterior door or exit passageway shall not exceed 200 feet.
· In other than jails, prisons and reformatories, sleeping rooms of Group I Occupancies shall not have required exits through the atrium.
· Standby power shall be provided for the atrium and tenant space smoke-control system. Sections 404.7 and 909.11.
· The interior finish for walls and ceilings of the atrium and all unseparated tenant spaces shall be Class I. Section 404.8.
Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only contain furnishings and decorative materials with potential heat of combustion less than 9,000 Btu's per pound. All furnishings to comply with California Bureau of Home Furnishings, Technical Bulletin 133, “Flammability Test for Seating Furniture in Public Occupancies.”
All furnishings in public areas shall comply with California Bureau of Home Furnishings, Technical Bulletin 133, “Flammability Test for Seating Furniture in Public Occupancies.”
Los Angeles County Fire
91. Fire Flow Requirements
A. Purpose: To provide Department standards for fire flow, hydrant spacing and specifications.
B. Scope: Informational to the general public and instructional to all individuals, companies, or corporations involved in the subdivision of land, construction of buildings, or alterations and/or installation of fire protection water systems and hydrants.
C. Author: The Deputy Chief of the Prevention Services Bureau through the Assistant Fire Chief (Fire Marshal) of the Fire Prevention Division is responsible for the origin and maintenance of this regulation.
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
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.
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.
A. Land development: fire flow, duration of flow, and hydrant spacing
The following requirements apply to land development issues such as: tract and parcel maps, conditional use permits, zone changes, lot line adjustments, planned unit developments, etc.
1. Multiple family dwellings, hotels, high rise, commercial, industrial, etc.
a. Due to the undetermined building designs for new land development projects (undeveloped land), the required fire flow shall be: 5,000 GPM 5 hrs. 300 ft.
NOTE: REDUCTION IN FIRE FLOW IN ACCORDANCE WITH TABLE 1.
b. Land development projects consisting of lots having existing structures shall be in compliance with Table 1 (fire flow per building size). This standard applies to multiple family dwellings, hotels, high rise, commercial, industrial, etc.
NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL PRESSURE.
B. Building plans
The Department’s Fire Prevention Engineering Section shall review building plans and apply fire flow requirements and hydrant spacing in accordance with the following:
Multiple residential, apartments, single family residences (greater than 5,000 square feet), private schools, hotels, high rise, commercial, industrial, etc. (R-1, E, B, A, I, H, F, M, S) (see Table 1).
C. Public fire hydrant requirements
1. Fire hydrants shall be required at intersections and along access ways as spacing requirements dictate
a. All occupancies
Other than single family dwellings, such as commercial, industrial, multi-family dwellings, private schools, institutions, detached condominiums (five or more units), etc.
Fire hydrant spacing shall be 300 feet.
NOTE: The following guidelines shall be used in meeting the hydrant spacing requirements.
(1) No portion of lot frontage shall be more than 200 feet via vehicular access from a public hydrant.
(2) No portion of a building should exceed 400 feet via vehicular access from a properly spaced public hydrant.
b. Supplemental fire protection
When a structure cannot meet the required public hydrant spacing distances, supplemental fire protection shall be required.
NOTE: Supplemental fire protection is not limited to the installation of on-site fire hydrants; it may include automatic extinguishing systems.
3. Hydrant location requirements - both sides of a street
Hydrants shall be required on both sides of the street whenever:
a. Streets having raised median center dividers that make access to hydrants difficult, causes time delay, and/or creates undue hazard.
b. For situations other than those listed in “a” above, the Department’s inspector’s judgment shall be used. The following items shall be considered when determining hydrant locations:
(1) Excessive traffic loads, major arterial route, in which traffic would be difficult to detour.
(2) Lack of adjacent parallel public streets in which traffic could be redirected (e.g., Pacific Coast Highway).
(3) Past practices in the area.
(4) Possibility of future development in the area.
(5) Type of development (i.e., flag-lot units, large apartment or condo complex, etc.).
(6) Accessibility to existing hydrants
(7) Possibility of the existing street having a raised median center divider in the near future.
D. On-Site Hydrant Requirements
1. When any portion of a proposed structure exceeds (via vehicular access) the allowable distances from a public hydrant and on-site hydrants are required, the following spacing requirements shall be met:
a. Spacing distance between on-site hydrants shall be 300 to 600 feet.
(1) Design features shall assist in allowing distance modifications.
b. Factors considered when allowing distance modifications.
(1) Only sprinklered buildings qualify for the maximum spacing of 600 feet.
(2) For non-sprinklered buildings, consideration should be given to fire protection, access doors, outside storage, etc. Distance between hydrants should not exceed 400 feet.
2. Fire flow
a. All on-site fire hydrants shall flow a minimum of 1,250 gallons per minute at 20 psi for a duration of two hours. If more than one on-site fire hydrant is required, the on-site fire flow shall be at least 2,500 gallons per minute at 20 psi, flowing from two hydrants simultaneously. On site flow may be greater depending upon the size of the structure and the distance from public hydrants.
NOTE: ONE OF THE TWO HYDRANTS TESTED SHALL BE THE FARTHEST FROM THE PUBLIC WATER SOURCE.
3. Distance from structures
All on-site hydrants shall be installed a minimum of 25 feet from a structure or protected by a two-hour firewall.
4. Shut-off valves
All on-site hydrants shall be equipped with a shut-off (gate) valve, which shall be located as follows:
a. Minimum distance to the hydrant 10 feet.
b. Maximum distance from the hydrant 25 feet
5. Inspection of new installations
All new on-site hydrants and underground installations are subject to inspection of the following items by a representative of the Department:
a. Piping materials and the bracing and support thereof.
b. A hydrostatic test of 200 psi for two hours.
c. Adequate flushing of the installation.
d. Flow test to satisfy required fire flow.
(1) Hydrants shall be painted with two coats of red primer and one coat of red paint, with the exception of the stem and threads, prior to flow test and acceptance of the system.
It shall be the responsibility of the property management company, the homeowners association, or the Developer to maintain on-site hydrants.
a. Hydrants shall be painted with two coats of red primer and one coat of red, with the exception of the stem and threads, prior to flow test and acceptance of the system.
b. No barricades, walls, fences, landscaping, etc., shall be installed or planted within three feet of a fire hydrant.
E. Public Hydrant Flow Procedure
The minimum acceptable flow from any existing public hydrant shall be 1,000 GPM unless the required fire flow is less. Hydrants used to satisfy fire flow requirements will be determined by the following items:
1. Only hydrants that meet spacing requirements are acceptable for meeting fire flow requirements.
2. In order to meet the required fire flow:
a. Flow closest hydrant and calculate to determine flow at 20 pounds per square inch residual pressure. If the calculated flow does not meet the fire flow requirement, the next closest hydrant shall be flowed simultaneously with the first hydrant, providing it meets the spacing requirement, etc.
b. If more than one hydrant is to be flowed in order to meet the required fire flow, the number of hydrants shall be flowed as follows:
One hydrant 1,250 GPM and below
Two hydrants 1,251– 3,500 GPM flowing simultaneously
Three hydrants 3,501– 5,000 GPM flowing simultaneously
F. Hydrant Upgrade Policy
1. Existing single outlet 2 1/2" inch hydrants shall be upgraded to a double outlet 6" x 4" x 2 1/2" hydrant when the required fire flow exceeds 1,250
2. An upgrade of the fire hydrant will not be required if the required fire
flow is between the minimum requirement of 750 gallons per minute, up to and including 1,250 gallons per minute, and the existing public water system will provide the required fire flow through an existing wharf fire hydrant.
3. All new required fire hydrant installations shall be approved
6" x 4" x 2 1/2" fire hydrants.
4. When water main improvements are required to meet GPM flow, and the existing water main has single outlet 2 1/2" fire hydrant(s), then a hydrant(s) upgrade will be required. This upgrade shall apply regardless of flow requirements.
5. The owner-developer shall be responsible for making the necessary arrangements with the local water purveyor for the installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are not provided (see Figures 1, 2, and 3 following on pages 11 and 12).
G. Hydrant Specifications
All required public and on-site fire hydrants shall be installed to the following specifications prior to flow test and acceptance of the system.
1. Hydrants shall be:
a. Installed so that the center line of the lowest outlet is between 14 and 24 inches above finished grade
b. Installed so that the front of the riser is between 12 and 24 inches behind the curb face
c. Installed with outlets facing the curb at a 45-degree angle to the curb line if there are double outlet hydrants
d. Similar to the type of construction which conforms to current A.W.W.A. Standards
e. Provided with three-foot unobstructed clearance on all sides.
f. Provided with approved plastic caps
g. Painted with two coats of red primer and one coat of traffic signal yellow for public hydrants and one coat of red for on-site hydrants, with the exception of the stems and threads
2. Underground shut-off valves are to be located:
a. A minimum distance of 10 feet from the hydrant
b. A maximum distance of 25 feet from the hydrant
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).
1. Constructed of steel not less than four inches in diameter, six inches if heavy truck traffic is anticipated, schedule 40 steel and concrete filled.
2. Posts shall be set not less than three feet deep in a concrete footing of not less than 15 inches in diameter, with the top of the posts not less than three feet above ground and not less than three feet from the hydrant
3. Posts, fences, vehicles, growth, trash storage and other materials or things shall not be placed or kept near fire hydrants in a manner that would prevent fire hydrants from being immediately discernable.
4. If hydrant is to be barricaded, no barricade shall be constructed in front of the hydrant outlets (Figure 2, shaded area).
5. The exact location of barricades may be changed by the field inspector during a field inspection.
6. The steel pipe above ground shall be painted a minimum of two field coats of primer.
7. Two finish coats of “traffic signal yellow” shall be used for fire hydrant barricades.
8. Figure 3 shows hydrant hook up during fireground operations. Notice apparatus (hydra-assist-valve) connected to hydrant and the required area. Figure 3 shows the importance of not constructing barricades or other obstructions in front of hydrant outlets.
H. Blue reflective hydrant markers replacement policy
1. Purpose: To provide information regarding the replacement of blue reflective hydrant markers, following street construction or repair work.
a. Fire station personnel shall inform Department of Public Works Road Construction Inspectors of the importance of the blue reflective hydrant markers, and encourage them to enforce their Department permit requirement, that streets and roads be returned to their original condition, following construction or repair work.
b. When street construction or repair work occurs within this Department's jurisdiction, the nearest Department of Public Works Permit Office shall be contacted. The location can be found by searching for the jurisdiction office in the "County of Los Angeles Telephone Directory" under "Department of Public Works Road Maintenance Division." The importance of the blue reflective hydrant markers should be explained, and the requirement encouraged that the street be returned to its original condition, by replacing the hydrant markers.
TABLE 1 *
BUILDING SIZE (First floor area)
Fire Flow *(1) (2)
3,000 to 4,999
5,000 to 7,999
8,000 to 9,999
10,000 to 14,999
sq. ft. sq. ft. sq. ft. sq. ft.
15,000 to 19,999
20,000 to 24,999
25,000 to 29,999
30,000 to 34,999
35,000 or more
sq. ft. sq. ft. sq. ft. sq. ft.
* See applicable footnotes below:
(FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH RESIDUAL PRESSURE)
(1) Conditions requiring additional fire flow.
a. Each story above ground level - add 500 GPM per story.
b. Any exposure within 50 feet - add a total of 500 GPM.
c. Any high-rise building (as determined by the jurisdictional building code) the fire flow shall be a minimum of 3,500 GPM for 3 hours at 20 psi.
d. Any flow may be increased up to 1,000 GPM for a hazardous occupancy.
(2) Reductions in fire flow shall be cumulative for type of construction and a fully sprinklered building. The following allowances and/or additions may be made to standard fire flow requirements:
a. A 25% reduction shall be granted for the following types of construction: Type I-F.R, Type II-F.R., Type II one-hour, Type II-N, Type III one-hour, Type III-N, Type IV, Type IV one hour, and Type V one-hour. This reduction shall be automatic and credited on all projects using these types 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.
SMMC ARTICLE 9 (PLANNING AND ZONING)
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).
a. “Contract” means a contract or other agreement for the providing of any combination of labor, materials, supplies, and equipment to the construction of the Project that will result in On-Site Jobs, directly or indirectly, either pursuant to the terms of such contract or other agreement or through one or more subcontracts.
b. “Contractor” means a prime contractor, a sub-contractor, or any other entity that enters into a Contract with Developer for any portion or component of the work necessary to construct the Project (excluding architectural, design and other “soft” components of the construction of the Project).
c. “Low Income Individual” means a resident of the City of Santa Monica whose household income is no greater than 80% of the Median Income.
d. “Median Income” means the median income for the Los Angeles-Long Beach Primary Metropolitan Statistical Area, as published from time to time by the City in connection with its Affordable Housing Production Program pursuant to SMMC Section 9.56.
e. “On-Site Jobs” means all jobs by a Contractor under a Contract for which at least fifty percent (50%) of the work hours for such job requires the employee to be at the Project site, regardless of whether such job is in the nature of an employee or an independent contractor. On-Site Jobs shall not include jobs at the Project site which will be performed by the Contractor's established work crew who have not been hired specifically to work at the Project site.
4. Priority for Targeted Job Applicants. Subject to Section 7 below in this Exhibit “F-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:
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 newspaper, or similar local media and electronically on a City-sponsored website, if such a resource exists. In addition, Developer shall consult with and provide written notice to at least two first source hiring organizations, which may include but are not limited to the following:
(i) Local first source hiring programs
(ii) Trade unions
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non-profit organizations involved in referring eligible applicants for job opportunities
7. Hiring. Developer and its prime contractor shall consider in good faith all applications submitted by Targeted Job Applicants for On-Site Jobs, in accordance with their respective normal hiring practices. The City acknowledges that the Contractors shall determine in their respective subjective business judgment whether any particular Targeted Job Applicant is qualified to perform the On-Site Job for which such Targeted Job Applicant has applied.
8. 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.
LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT
Local Hiring Policy For Permanent Employment. The Developer (if an Operator) or Hotel/Restaurant/Leasable Space Operator shall implement a local hiring policy (the “Local Hiring Policy”), consistent with the following guidelines:
a. Approximately 73,000-74,000 individuals work in the City. The City has a resident labor force of approximately 56,800. However, only about one-third (32.2 percent) of the City's resident labor force works at jobs located in the City, with the balance working outside of the City. Consequently, a significant portion of the City's resident and non-resident work force is required to commute long distances to find work, causing increased traffic on state highways, increased pollution, increased use of gas and other fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City are forced to leave for work very early in the morning and return late in the evening, often leaving children and teenagers alone and unsupervised during the hours between school and the parent return from work outside the area.
c. Absentee parents and unsupervised youth can result in increased problems for families, communities and the City as a whole, including, but not limited to, increased crime, more frequent and serious injuries, poor homework accomplishments, failing grades and increased high school dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are defined as low-income households or lower, with eleven percent of these households defined as extremely low income and eight percent very low income. Approximately 10.5% of the City's residents are unemployed.
e. By ensuring that Targeted Job Applicants are aware of and have a fair opportunity to compete for Project jobs, this local hiring policy will facilitate job opportunities to City residents which would expand the City's employment base and reduce the impacts on the environment caused by long commuting times to jobs outside the area.
c. “Median Income” means the median income for the Los Angeles-Long Beach Primary Metropolitan Statistical Area, as published from time to time by the City in connection with its Affordable Housing Production Program pursuant to SMMC Section 9.56.
d. “On-Site Jobs” means all jobs on the Project site within the non-residential uses of greater than 1,500 gross square feet, regardless of whether such job is in the nature of an employee or an independent contractor.
e. “Operator” means the Hotel, Restaurant, or Leasable Space operators on the Project site.
a. First Priority: Any resident of a household with no greater than 80% Median Income that resides within the Low and Moderate Income Areas indicated on the map attached to this Exhibit F-2;
b. Second Priority: Any resident of a household with no greater than 80% Median Income that resides within the City; and
c. Third Priority: Any resident of a household with no greater than 80% Median Income that resides within a five (5) mile radius of the project site.
For purposes of this Local Hiring Policy, the employer is authorized to rely on the most recent year’s income tax records (W-2) and proof of residency (e.g. driver’s license, utility bill, voter registration) if voluntarily submitted by a prospective job applicant for purposes of assessing a Targeted Job Applicant’s place of residence and income.
a. Local Hiring Goal - The Developer has established a local hiring goal of 40% of the total full and part-time jobs in the Project being held by Santa Monica residents. There shall be no penalties to the Developer, nor shall the Developer be deemed to be in default under the Development Agreement, if such goal is not achieved. The Developer shall report its actual local hiring results to the City as part of its annual report as mandated by Section 10.2 of the Development Agreement.
b. Advanced Local Recruitment - Initial Hiring for New Business. So that Targeted Job Applicants are made aware of the availability of On-Site Jobs, at least 30 days before recruitment (“Advanced Recruitment Period”) is opened up to general circulation for the initial hiring by a new business, Operator shall advertise available On-Site Jobs in the Santa Monica Daily Press, or Santa Monica Police Activity League or similar organization, or similar local media and electronically on a City-sponsored website, if such a resource exists. In addition, Developer shall consult with and provide written notice to the HTA’s program and at least two first source hiring organizations, which may include but are not limited to the following:
(i) Local first source hiring programs
(ii) Trade 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
c. Advanced Local Recruitment - Subsequent Hiring. For subsequent employment opportunities, the Advanced Recruitment Period for Targeted Job Applicants can be reduced to at least 7 days before recruitment is opened up to general circulation. Alternatively, the Developer or Hotel/Restaurant Operator may also use an established list of potential Targeted Job Applicants of not more than one year old.
d. Obligations After Completion of Advanced Recruitment Period. Once these advanced local recruitment obligations have been met, Developer or Hotel/Restaurant Operator is not precluded from advertising regionally or nationally for employees.
HOTEL CONDITIONS TO DISPENSE ALCOHOL FROM THE MARKET
Within the sundry market located on the ground floor and designated as “Market” on the Project Plans, Developer or a business operator, collectively “Market Operator”, may sell alcoholic beverages, including beer, wine, malt beverages, and distilled spirits to hotel patrons, on the following terms and conditions:
1. This approval is for a Type 20 or 21 (Off-Sale General) alcohol license only. Any request to modify the license type shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications).
2. The permitted hours of alcohol sales in the Market shall be:
· 9:00 AM to 12:00 AM (Daily)
3. Concurrently with filing an application with the State ABC, the Market Operator shall provide a copy of this signed Exhibit “G-1” to the local office of the State Alcoholic Beverage Control Department.
4. In the event the Market Operator fails to comply with any conditions of approval of this Exhibit, no further permits, licenses, approvals or certificates of occupancy for the hotel shall be issued to such applicant until such violation has been fully remedied.
5. Minor amendments to the Market as shown on the Project Plans shall be subject to approval by the Director of Planning in accordance with Section 2.4.2 (Minor Modifications). A significant change in the approved concept for the Market, including but not limited to, a significant increase in shelf area for alcoholic beverages as determined by the Director of Planning, shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). The Market shall be located on the ground floor of the Hotel. The size and general configuration of the Market shall be in substantial conformance with the plans submitted or as modified by the, Planning Commission, Architectural Review Board, or Director of Planning. An intensity of operation through an increase of any alcohol shelf area by up to 25% can occur without prior approval from the City of Santa Monica, pending State ABC approval.
6. The Market shall at all times be conducted in a manner not detrimental to surrounding properties or residents by reason of lights, noise, activities, parking or other actions.
7. The Market Operator shall prohibit loitering within the Market and shall control unruly or inebriated guests at the Hotel.
8. Window or other signage on or in the hotel visible from the public right-of-way that advertises beer or alcohol shall not be permitted, exclusive of the standard packaging appearing on the alcohol products offered for sale.
9. The Market Operator is on notice that all temporary signage is subject to the restrictions of the City’s sign ordinance included in Exhibit “E” SMCC Article 9 (Planning and Zoning) to this Agreement.
10. The Market Operator shall employ staff whose responsibilities include patrolling the licensed premises to ensure patrons of the hotel are not disruptive to adjoining properties and area residents.
11. The Market Operator shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12).
12. Prior to commencement of alcohol sales in the Market, the hotel operator shall post a notice at the entry to the Market stating that the site is regulated by a Development Agreement and the Development Agreement, which includes the Market’s alcohol-related conditions of approval, is available upon request.
13. Prior to commencement of alcohol sales in the Market, a security plan shall be submitted to the Chief of Police for review and approval. The plan shall address both physical and operational security issues related to the Market.
14. Prior to commencement of alcohol service in the Market, the Market Operator shall participate in the Santa Monica Alcohol Awareness for Retailers Training (S.M.A.A.R.T.) program conducted by the Santa Monica Police Department.
15. The Market Operator authorizes reasonable City inspection of the hotel to ensure compliance with the conditions set forth in this Exhibit “G-1” and will bear the reasonable cost of these inspections as established by SMMC Section 2.72.010 and Resolution No. 9905 (CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with this Exhibit.
Acknowledgement of Market Operator
I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to sell alcoholic beverages from the Market.
Print Name and Title Date
HOTEL CONDITIONS TO DISPENSE ALCOHOL FROM COMMON AREAS
In the Hotel common areas (including the ground floor lobby, lounge bistro, and the second floor meeting room, terrace, spa area and deck areas), Developer or a hotel/business operator may sell or furnish alcoholic beverages for consumption on the following terms and conditions without obtaining a Conditional Use Permit.
1. This approval is for Type 70 (On-Sale General Restrictive Service) alcohol license only. Any request to modify the license type shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications).
2. Floor areas in which alcohol is served shall not exceed the following: Hotel common areas, including the ground floor lobby, lounge, bistro, and the second floor meeting room, terrace, spa and deck areas.
3. The seating configurations for each of the alcohol serving areas as shown on the Project Plans shall not be altered so as to increase occupancy of those areas. The second floor meeting room, terrace, spa area and deck areas may be rearranged as appropriate for special events or conferences.
4. Hotel employees may sell or furnish alcoholic beverages for consumption within the common areas of the hotel premises, including the ground floor lobby, lounge, bistro and the second floor meeting room, terrace, spa and deck areas, to hotel guests and their invitees between the hours of:
· Sunday through Thursday:
9:00 AM to 12:00 AM (midnight), interior common areas
9:00 AM to 12:00 AM (midnight), second floor outdoor common areas
· Friday and Saturday:
9:00 AM to 1:00 AM (next day), interior common areas
9:00 AM to 12:00 AM (midnight), second floor outdoor common areas
Unless the alcoholic beverages are offered to Hotel guests on a complimentary basis, alcoholic beverage purchases pursuant to this Section 4 shall be charged to guest’s room bill or by method of payment permissible by the State’s Department of Alcoholic Beverage Control for a Type 70 alcohol license. Except for invitees or guests of Hotel patrons, the general public shall not be able to purchase alcoholic beverages for consumption in the Hotel common areas.
5. Minor amendments to the Hotel floor areas where alcohol may be served as shown on the Project Plans shall be subject to approval by the Director of Planning in accordance with Section 2.4.2 (Minor Modifications). A significant change in the approved concept for Hotel alcohol service areas or any increase in the square footage shall require either a Conditional Use Permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). Construction of the hotel common areas where alcohol may be served shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board, or Director of Planning. No expansion of any alcohol serving area, intensity of operation of any alcohol serving area, or outdoor alcohol serving areas shall occur without prior approval from the City of Santa Monica and State ABC (if required by the ABC).
6. Concurrently with filing an application to the State ABC for one or more alcohol licenses, the applicant shall provide a copy of this signed Exhibit “G-2” to the local office of the State Alcoholic Beverage Control Department.
7. The operation of the hotel, including the common areas, shall at all times be conducted in a manner not detrimental to surrounding properties or residents by reason of lights, noise, activities, parking or other actions.
8. No alcoholic beverage shall be sold for consumption beyond the hotel premises unless pursuant to an approved Conditional Use Permit.
9. The primary use of the hotel premises shall be for Hotel Use.
10. Live, non-amplified, acoustical music shall be permitted in the hotel indoor common areas provided there is no dancing or dance floor and there is no cover charge or minimum drink purchase requirement. No dancing or live entertainment is permitted in any of the Hotel outdoor areas.
11. No outside promoter shall be permitted to rent or lease the hotel. No event held at the hotel shall be advertised under another name as a nightclub or dancehall. All private parties shall be operated through the hotel.
12. Except for special events, alcohol shall not be served in any disposable container such as disposable plastic or paper cups.
13. The hotel operator shall control unruly or inebriated guests at the Hotel.
14. The hotel shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12).
15. Window or other comparable signage visible from the public right-of-way that advertises beer or alcohol shall not be permitted.
16. Prior to commencement of alcohol service, a security plan shall be submitted to the Chief of Police for review and approval. The plan shall address both physical and operational security issues at the hotel.
17. Prior to the commencement of alcohol service, the hotel operator, restaurant operator or business operator, as applicable, shall participate in the Santa Monica Alcohol Awareness for Retailers Training (S.M.A.A.R.T) program conducted by the Santa Monica Police Department.
18. The Developer authorizes reasonable City inspection of the Property to ensure compliance with the conditions set forth in this Exhibit “G-2” and will bear the reasonable costs of these inspections as established by SMMC Section 2.72.010 and Resolution No. 9905 (CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with this Section.
19. Prior to exercising the rights of this Exhibit “G-2,” the applicant shall post a notice at the hotel entry stating that the Property is regulated by a Development Agreement and the Development Agreement, which includes the hotel’s alcohol related conditions of approval, is available upon request. This notice shall remain posted at all time the hotel is in operation.
20. The hotel operator shall employ staff whose responsibilities include patrolling the hotel to ensure patrons of the hotel are not disruptive to adjoining properties and area residents.
Acknowledgement of Hotel Operator
I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to dispense alcoholic beverages in the hotel common areas.
Print Name and Title Date
RESTAURANT CONDITIONS TO DISPENSE ALCOHOL
Within the Restaurant which may be located on the ground floor and designated as “Leasable Space” on the Project Plans, and/or within any Restaurant operated within the Hotel, (collectively “Restaurant“) Developer or a business operator or the Hotel Operator, as the case may be, (collectively “Restaurant Operator”) may dispense for sale or other consideration, alcoholic beverages, including beer, wine, malt beverages, and distilled spirits for on-site consumption, on the following terms and conditions:
1. This approval is for a Type 41 (On Sale Beer & Wine -- Eating Place) and/or 47 (On Sale General -- Eating Place) alcohol license only. Any request to modify the license type shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications).
2. Seating arrangements for sit-down patrons in the Restaurant shall not exceed fifty-four (54) interior dining seats (including up to eleven (11) bar/counter seats) and up to twenty-four (24) exterior seats. Up to nine (9) interior waiting seats may also be provided. Any request for additional interior or exterior seating shall be subject to Director of Planning approval, pursuant to Condition No. 10 of this Exhibit H.
3. The permitted hours of alcohol consumption in the Restaurant shall be:
· Sunday through Thursday
9:00 AM to 1:00 AM (next day), interior dining area
9:00 AM to 12:00 AM (midnight), outdoor dining area
· Friday and Saturday
9:00 AM to 2:00 AM (next day), interior dining area
9:00 AM to 1:00 AM (next day), outdoor dining area
Complete closure and all employees shall vacate the tenant space by 2:00 AM Sunday through Thursday, and 3:00 AM Friday and Saturday and no “after hours” operations shall be permitted; provided, however, that such vacation of the premises shall not apply to any Hotel operations where the Hotel Operator also operates the Restaurant.
4. Alcoholic beverage orders shall cease 30 minutes prior to closure of the Restaurant, or no later than the closing of the associated food service of the Restaurant, whichever is first.
5. Prior to commencement of alcohol service by the Restaurant, the Restaurant Operator shall post a notice at the entry stating that the site is regulated by a Development Agreement and the Development Agreement, which includes the Restaurant’s conditions of approval is available upon request.
6. Concurrently with filing an application with the State ABC, the Restaurant Operator shall provide a copy of this signed Exhibit “H” to the local office of the State Alcoholic Beverage Control Department.
7. Prior to commencement of alcohol service in the Restaurant, the Restaurant operator shall submit a plan for approval by the City’s Planning Director regarding Restaurant 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 a California Department of Alcoholic Beverage Control (ABC) sponsored alcohol awareness training program within 90 days of the effective date of the approval by the Planning Director of the plan. In the case of new Restaurant employees, the employee shall attend the alcohol awareness training within 90 days of hiring. In the event the ABC no longer sponsors an alcohol awareness training program, all Restaurant employees having contact with the public shall complete an alternative program approved by the Planning Director. The Restaurant operator shall provide the City with an annual report regarding compliance with this condition. The Restaurant shall be subject to any future City-wide alcohol awareness training program condition affecting similar establishments.
8. Prior to commencement of alcohol service in the Restaurant, the Restaurant operator shall also submit a plan describing the establishment’s designated driver program, which shall be offered by the Restaurant operator to the establishment’s patrons. The plan shall specify how the Restaurant operator will inform Restaurant patrons of the program, such as offering on the menu a free non-alcoholic drink for every party of two or more ordering more than one alcoholic beverage.
9. In the event the Restaurant operator fails to comply with any conditions of approval of this Exhibit, no further permits, licenses, approvals or certificates of occupancy for the Restaurant shall be issued to such applicant until such violation has been fully remedied.
10. Minor amendments to the Restaurant as shown on the Project Plans shall be subject to approval by the Director of Planning in accordance with Section 2.4.2 (Minor Modifications). A significant change in the approved concept for the Restaurant as determined by the Director of Planning shall require either a conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). If alcohol is to be served, construction of the Restaurant shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board, or Director of Planning. No expansion in number of seats of any alcohol serving area, intensity of operation of any alcohol serving area, or outdoor alcohol serving areas shall occur within the Restaurant without prior approval from the City of Santa Monica and State ABC (if required by the ABC).
11. The Restaurant 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.
12. No alcoholic beverage shall be sold for consumption beyond the Restaurant premises. Notwithstanding the foregoing, if the Restaurant offers room service of meals to the hotel rooms as part of its regular operations, then alcoholic beverages may be sold for consumption in guest rooms or adjoining private outdoor space to hotel guests 21 years of age or older who provide proof of age if requested by room service personnel.
13. Except for special events, alcohol shall not be served in the Restaurant in any disposable container such as disposable plastic or paper cups.
14. No more than 35% of total gross revenues per year of the Restaurant 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 each calendar year after the first year of operation and also available to the City and the State ABC upon request.
15. The primary use of the Restaurant shall be for sit-down meal service to patrons. Alcohol shall only be served to patrons in areas of the Restaurant where meal service is available.
16. 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. 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..
17. The Restaurant shall maintain a kitchen or food-serving area in which a variety of food is prepared or cooked onsite.
18. The Restaurant shall serve food to patrons during all hours the establishment is open for customers.
19. Any minimum purchase requirement may be satisfied by the purchase of beverages or food.
20. Patrons shall be permitted to order meals at the bar at all times the bar or Restaurant is open for business.
21. Take out service (not including Hotel use or room service) shall be only incidental to the primary sit down use.
22. The primary use of the outdoor dining area shall be for seated meals service. Patrons who are standing in the outdoor seating area shall not be served.
23. No dancing or live entertainment beyond in that allowed in the definition of “Restaurant” contained in SMMC Section 9.04.02.030.730 shall be permitted in the Restaurant.
24. No queuing of patrons at the Restaurant entry or checking of identification at that entry shall be permitted. There shall not be any age limitation imposed restricting access to the restaurant (e.g. persons of all ages must be allowed to enter the restaurant).
25. 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.
26. No video or other amusement games shall be permitted in the Restaurant, other than personal handheld and tablet devices.
27. The Restaurant operator shall prohibit loitering in the restaurant area and shall control noisy patrons leaving the restaurant.
28. Window or other signage on or in the Restaurant visible from the public right-of-way that advertises beer or alcohol shall not be permitted.
29. The operator of the Restaurant is on notice that all temporary signage is subject to the restrictions of the City’s sign ordinance included in Exhibit “E” SMCC Article 9 (Planning and Zoning) to this Agreement.
30. The Restaurant shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12).
31. Pursuant to SMMC Section 4.12 (Noise), establishments with amplified music may be required to provide entrances and exits, except exits which are solely emergency exits, designed as two-door vestibules, so that only one set of doors is open at a time. Doors shall be of solid core design and windows shall be constructed with double-paned glass in the event of amplified music.
32. The Restaurant shall not conduct recycling deposits, pressure washing or other noise generating activity audible from the Property between the hours of 11PM and 7AM.
33. Prior to commencement of alcohol service in Restaurant, a security plan for the Restaurant shall be submitted to the Chief of Police for review and approval. The plan shall address both physical and operational security issues.
34. Prior to commencement of alcohol service in the Restaurant, the restaurant operator shall participate in the Santa Monica Alcohol Awareness for Retailers Training (S.M.A.A.R.T.) program conducted by the Santa Monica Police Department.
35. The Restaurant operator authorizes reasonable City inspection of the Restaurant to ensure compliance with the conditions set forth in this Exhibit “H” and will bear the reasonable cost of these inspections as established by SMMC Section 2.72.010 and Resolution No. 9905 (CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with this Exhibit.
Acknowledgement of 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 in the Restaurant.
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