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City Council Meeting: July 14, 2022 Santa Monica, California ORDINANCE NUMBER __________ (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA APPROVING THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SANTA MONICA, A MUNICIPAL CORPORATION,
AND BELLE VUE PLAZA, A CALIFORNIA LIMITED PARTNERSHIP, AND OCEAN
AVENUE PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY (COLLECTIVELY, “THE DEVELOPER”)
WHEREAS, California Government Code Section 65450 et seq. permits each city to adopt a specific plan for the systematic implementation of the general plan for individual areas covered by the general plan; and
WHEREAS, pursuant to California Government Code Section 65864 et seq. and Chapter 9.60 of the Santa Monica Municipal Code (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; and
WHEREAS, Developer is the owner of approximately 82,570 square feet of land located in the City of Santa Monica, State of California, commonly known as 101 Santa Monica Boulevard, 1337 Ocean Avenue, 1333 Ocean Avenue, 1327 Ocean Avenue and 129 Santa Monica Boulevard (collectively, the “Project Site”); and WHEREAS, the Project Site consists of:
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(1) approximately 52,570 square feet of land located in the City of Santa Monica, State of California, commonly known as 101 Santa Monica Boulevard, 1337 Ocean Avenue, 1333 Ocean Avenue, 1327 Ocean Avenue (collectively the “Ocean Avenue Parcel”) which consists of:
(i) the land located in the City of Santa Monica, State of California, commonly known as 101 Santa Monica Boulevard (and also commonly known as 103 Santa Monica Boulevard, 105 Santa Monica Boulevard, 107 Santa Monica Boulevard, 109 Santa Monica Boulevard, 111 Santa Monica Boulevard, 113 Santa Monica Boulevard, 115 Santa Monica Boulevard, 1355 Ocean Avenue and 1357 Ocean Avenue) that is currently improved with a two-story mixed-use commercial/residential structure with a rooftop penthouse apartment (the “101 Santa Monica Boulevard Building”) and surface parking,
(ii) the land located in the City of Santa Monica, State of California, commonly known as 1337 Ocean Avenue that is currently improved with (i) a two-story building that was originally built in 1926, is a City-designated Landmark (LC04-LM-005) and is in commercial use (the “Spanish Colonial Revival Landmark”), a detached one-story rear structure that is in commercial use (the “1337 Ocean Avenue Rear Structure”), and surface parking,
(iii) the land located in the City of Santa Monica, State of California, commonly known as 1333 Ocean Avenue that is currently improved with a two-story building that was originally built in 1906, is a City-designated Landmark (LC01LM-001) and is in commercial use (the “Queen Anne Landmark”), a separate two- 3 of 19
story rear structure that is in commercial use and is connected to the 1333 Ocean Avenue Landmark by an unenclosed catwalk and staircase (the “1333 Ocean Avenue Rear Structure”), and surface parking and
(iv) the land located in the City of Santa Monica, State of California, commonly known as 1327 Ocean Avenue that is currently improved with a two-story building that is in commercial use (the “1327 Ocean Avenue Building”) and surface parking; and
(2) approximately 30,000 square feet of land located in the City of Santa Monica, State of California, commonly known as 129 Santa Monica Boulevard (the “Second Street Parcel”) that is currently improved with surface parking; and WHEREAS, the City has included the Project Site within the Downtown Core land use designation under the City’s 2010 Land Use and Circulation Element of its General Plan (the “LUCE”). LUCE Policy D1.5 designates the Project Site as one of seven sites in the Downtown District to focus new investment given its accessibility to transit and ability to accommodate mixed-use development, contribute to the pedestrian-oriented environment, and support substantial community benefits. The LUCE did not establish maximum building height limits, floor area ratios (“FAR”), or other specific development standards (e.g., setbacks and step backs) for new buildings within the Downtown Core designation; instead, the LUCE deferred such standards to a future Downtown specific plan; and
WHEREAS, on February 28, 2013, Developer filed an application for a Development Agreement (13DEV-004), pursuant to Santa Monica Municipal Code 4 of 19
(“SMMC”) Section 9.60.020 (the “Development Application”). The Development Application proposes a mixed-use project with a hotel, residences, a cultural uses campus, ground floor pedestrian-oriented restaurant and retail uses and subterranean parking. The originally-filed plans (the “2013 Plans”) proposed, among other things, 125 hotel rooms, 22 residential condominium units, 19 replacement rental apartments, 5 affordable rental apartments, a cultural uses campus including the preservation and adaptive re-use of the Spanish Colonial Revival Landmark and Queen Anne Landmark, ground floor restaurants and retail, an observation deck, a maximum height of 244 feet and a 4.0 FAR. As further described below, the Development Application has been revised and refined since the initial filing but has always included hotel, residential, cultural uses, pedestrian-oriented retail/restaurant uses, and subterranean parking, as is more fully described in the Development Agreement; and
WHEREAS, on August 5, 2013, the Architectural Review Board held a public hearing to preliminarily review and provide feedback on the 2013 Plans; and WHEREAS, in August 2017, the City adopted the Downtown Community Plan (“DCP”), a specific plan governing the Downtown including the Project Site. Consistent with the LUCE, the Project Site is located within the Established Large Site (“ELS”) Overlay designation with the Ocean Avenue Parcel also having the Ocean Transition designation and the Second Street Parcel also having the Bayside Conservation designation. The ELS Overlay is provided for three sites in the Downtown that the DCP indicated have the potential to accommodate significant new development and provide significant community benefits. The ELS Overlay designation allows any project on the Project Site to request approval for development up to 130 feet in height and a 4.0 FAR 5 of 19
subject to the project being processed through a development agreement, as well as compliance with other specified requirements. Table 2A.4 of the DCP lists three “preferred” community benefits for a project on the Project Site: affordable housing, cultural institution, and historic preservation, all of which are included in the Project; and WHEREAS, after adoption of the DCP, the 2013 Plans were revised to conform with the DCP. In comparison to the 2013 Plans, revised plans filed in 2018 (the “2018 Plans”), included, among other things, elimination of the residential condominiums and replacement with 100% rental apartments (including more affordable housing), reduced density (2.95 FAR), a reduced hotel program, and reduced height (maximum height of 130 feet); and
WHEREAS, on February 20, 2018, the Architectural Review Board held a public hearing to preliminarily review and provide feedback on the 2018 Plans; and WHEREAS, on March 12, 2018, the Landmarks Commission held a public hearing to preliminarily review and provide feedback on the 2018 Plans; and WHEREAS, on May 2, 2018, the Planning Commission held a public hearing to consider, review and provide preliminary comments on the revised design concept, and to identify potential community benefits for consideration (commonly referred to as a “float up” discussion). The Planning Commission was generally supportive of the overall design concept, including the relationship between building height and open space, the emphasis on the pedestrian experience, and the proposed cultural uses campus as a community benefit. The Planning Commission recommended that the City Council proceed with development agreement discussions; and
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WHEREAS, on June 12, 2018, the City Council held a “float-up” public hearing to preliminarily review and provide feedback on the 2018 Plans. The City Council concurred with the Planning Commission’s May 2, 2018 recommendation and directed City staff to initiate the development agreement negotiations and review process for the Project; and
WHEREAS, the project (the “Project”) is more specifically described in the Development Agreement and now includes, among other things, the following components:
(1) a full-service hotel building located in the central area of the Ocean Avenue Parcel (the “Hotel Building”),
(2) a cultural uses campus that is located north of the Hotel Building on the Ocean Avenue Parcel and is comprised of a new building (the “Cultural Uses Building”) and the relocated Spanish Colonial Revival Landmark and Queen Anne Landmark, which would be rehabilitated for adaptive reuse as part of the cultural uses campus, and open space (the “Cultural Uses Campus”),
(3) a building with restaurant/retail uses that is located near the corner of Ocean Avenue and Santa Monica Boulevard on the Ocean Avenue Parcel (the “Corner Building”),
(4) a mixed-use residential apartment building with ground floor retail/restaurant space located on the Ocean Avenue Parcel near the corner of Santa Monica Boulevard and First Court Alley (the “Santa Monica Boulevard Building”), 7 of 19
(5) a mixed-use building(s) with retail/restaurant space located on the ground floor/podium level and residential apartments located within three separate forms/structures situated above the podium level on the Second Street Parcel (the “Second Street Building(s)”),
(6) a publicly-accessible observation deck at the top of the Hotel Building,
(7) substantial open space, including publicly-accessible open space, (8) subterranean space, including for vehicle and bicycle parking, and (9) substantial other project features and community benefits as set forth in Section 2.7 and Section 2.8, of the Development Agreement; and WHEREAS, the Project Site is also located in the California Coastal Zone. In October 2018, the City adopted a Local Coastal Program Update, Land Use Plan, Final Draft (“2018 Draft LUP”). The 2018 Draft LUP reflects the LUCE and DCP with respect to the Project Site’s development standards. The Project Site is located within Subarea 5, Downtown District of the 2018 Draft LUP; and
WHEREAS, on December 15, 2020, Developer filed an application seeking an amendment to the 1992 LUP (“1992 LUP Amendment”) to be consistent with the LUCE, DCP and 2018 Draft LUP policies. The 1992 LUP Amendment, as it has been modified, would add a new policy to the 1992 LUP as follows:
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If the properties located on the north side of Santa Monica Boulevard between Ocean Avenue and Second Street commonly referred to as 129 Santa Monica Boulevard, 101 Santa Monica Boulevard, 1327 Ocean Avenue, 1333 Ocean Avenue, 1337 Ocean Avenue (the “Established Large Site”) are redeveloped as a comprehensive project pursuant to a development agreement, then the development standards in Policies 67 and 71 and the corresponding development intensities shown on Map 15 shall not apply to such new project on the Established Large Site, and the project shall instead not exceed 130 feet, with no limitation on the number of stories, and a cumulative maximum 2.95 FAR across the Established Large Site; and
WHEREAS, to aid in the redevelopment of the Property, the City and Developer desire to allow Developer to demolish the existing improvements except for the Queen Anne Landmark and Spanish Colonial Revival Landmark and construct a new mixeduse hotel, residential, and cultural uses project with ground floor retail and subterranean parking; and
WHEREAS, the City prepared and circulated on May 18, 2020 for public review and comment a Draft Environmental Impact Report (the “DEIR”) pursuant to the California Environmental Quality Act (“CEQA”) and designated SCH No. 2018121060 to evaluate the Project’s potential environmental impacts. Following the close of a 90-day comment period on August 17, 2020, the City prepared a Final Environmental Impact Report pursuant to CEQA (the “EIR”); and
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WHEREAS, Developer has paid all necessary costs and fees associated with the City’s processing of the Development Application and the Development Agreement, including the full cost of the City’s preparation of the DEIR and the EIR; and WHEREAS, the primary purpose of the Project is to redevelop the Project Site with a new mixed-use project that includes a full-service hotel, residential apartments including replacement rent-control apartments, market rate and deed-restricted affordable apartments, a new Cultural Uses Campus which includes the rehabilitation and adaptive reuse of the Queen Anne Landmark and Spanish Colonial Revival Landmark with cultural uses, pedestrian-friendly ground floor retail/restaurant uses, subterranean parking, significant open space including a publicly-accessible observation deck and other community benefits consistent with the LUCE, DCP, 1992 LUP as amended, and the 2018 Draft LUP; and
WHEREAS, the City Council has determined that a development agreement is appropriate for the proposed development of the Project on the Project Site. The Development 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 Project Site, (3) provide for public infrastructure and services appropriate to development of the Project, (4) preserve substantial City discretion in reviewing the Project’s design in accordance with Article 6 of the Development Agreement, (5) secure for the City improvements that benefit the public, (6) ensure the provision of community benefits as envisioned in the LUCE and DCP and (7) otherwise achieve the goals and purposes for which the Development Agreement Statutes were enacted; and
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WHEREAS, the Development 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 impacts and benefits of the development of the Project on the Project Site in accordance with the Development Agreement. Consistent with the LUCE and DCP, the Project will provide a number of significant project features and community benefits as set forth in Sections 2.7 and 2.8 of the Development Agreement; and
WHEREAS, the City Council has found that the provisions of the Development Agreement are consistent with the relevant provisions of the City’s General Plan, including the LUCE; the DCP; the 1992 LUP as amended by the 1992 LUP Amendment; and the 2018 Draft LUP; and
WHEREAS, on March 23, 2018, Developer filed a demolition permit application for the 101 Santa Monica Boulevard Building (18BLD-5360). On October 1, 2018, Developer filed demolition permit applications for the 1327 Ocean Avenue Building (18BLD-7899), the 1333 Ocean Avenue Rear Structure (18BLD-7918), and the 1337 Ocean Avenue Rear Structure (18BLD-7917). Pursuant to SMMC Section 9.25.040(E), members of the public had a 75-day period from the filing of each demolition permit application to file an application to designate the applicable existing building as a landmark or structure of merit. No applications to designate any of these existing buildings were filed during the applicable 75-day period; and WHEREAS, on May 18, 2022, the City's Planning Commission held a duly noticed public hearing on the updated Development Application, the EIR, the 1992 LUP 11 of 19
Amendment, and the Development Agreement, and at such hearing, the Planning Commission recommended that the City Council certify the EIR, approve the 1992 LUP Amendment, and approve the Project including the Development Agreement; and WHEREAS, on May 24, 2022, the City Council adopted Resolution No. 11420 stating its intention to establish a pedestrian mall on a portion of First Court alley adjacent to the Project site pursuant to the Pedestrian Mall Law of 1960, California Streets & Highways Code Sections 11000 et seq., and setting a public hearing date of September 27, 2022 for the City Council to make a determination on the establishment of the Pedestrian Mall; and
WHEREAS, on July 14, 2022, the City Council held a duly noticed public hearing on the updated Development Application, the EIR, the 1992 LUP Amendment, and the Development Agreement, and at such hearing the City certified the EIR and adopted a Statement of Overriding Considerations and Mitigation Monitoring Plan, and adopted a resolution approving the 1992 LUP Amendment; and
WHEREAS, the proposed Development Agreement, which is attached hereto as Exhibit A to this ordinance, conforms to the requirements of Government Code sections 65450 et seq. as well as the requirement of Chapter 9.60 of the Santa Monica Municipal Code (Development Agreements); and
WHEREAS, the City Council, after consideration of all oral and written testimony presented at the duly noticed meeting of the City Council on July 14 2022, made the following findings (collectively, “the Findings”):
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Development Agreement Findings
1. The proposed Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan. The 2010 Land Use and Circulation Element (LUCE) and 2017 Downtown Community Plan (DCP) are the City’s applicable general and specific plans. The Ocean Avenue Project site is located in the 2010 LUCE’s Downtown District and has a Downtown Core General Plan Land Use Designation. Policies in this District are geared primarily toward reinforcing the Downtown as the focus of the City, encouraging a broad mix of uses and new investment in the District that creates dynamic daytime and evening activity, and reinforces the Downtown as the place with the greatest concentration of activity in the City. As outlined in the LUCE, this broad mix of uses in the Downtown includes retail, hotels, office, high-density residential, and entertainment and cultural uses (Goal D.7, Policy D.7.1). With respect to Downtown residential development, units with a diversity of types, forms, sizes, tenure, and affordability for all income levels are encouraged (Policy D7.7). Policy D1.4 also states that new and expanded hotels and other visitor-serving uses are also to be encouraged. General LUCE discussion about the Downtown District recognizes that the Downtown is considered a true urban place where streets are important pedestrian activity spaces, buildings are generally the tallest in the City, and the intensity of development is higher than in the rest of the City (page 1.3.8). The LUCE’s Downtown District also specifically identifies the subject property as one of seven sites in the Downtown District to 13 of 19
focus new investment given its accessibility to transit and ability to accommodate mixed-use development, contribute to the pedestrian-oriented environment, and support substantial community benefits; (Goal D1.5). DCP Goal LU1 supports the Downtown Community Plan area as a high quality, mixed-use district offering opportunities for housing for people across the income spectrum, jobs, arts and culture, local-serving retail and community/visitor gathering places. The proposed project is consistent with these LUCE and DCP goals and policies based on the project’s mix of uses comprised of a new full-service hotel, provision of 64 marketrate housing units, 25 deed-restricted affordable housing units, and 11 rentcontrolled housing units, retail and dining, and a full range of community benefits.
These community benefits include the commitment to construct and operate a Cultural Uses Campus open to the public; protection of two designated historic Landmark Buildings; provision of publicly-accessible open space; and a development plan that includes buildings with a range of building heights from 53’ to a maximum height of 130’ while still providing substantial ground level open space on the parcel.
2. The proposed Development Agreement is compatible with the uses authorized in the district in which the real property is located, in that the subject property is located in the Downtown District that allows multi-family residential uses and a wide range of commercial and community-serving uses. The proposed Development Agreement is consistent with LUCE Goal D7, Policy D7.1, and DCP Goal LU1.2 which all seek to create a balanced mix of uses in the Downtown that 14 of 19
reinforces the area’s role as having the greatest concentration of activity in the City. DCP Policy LU1.2 supports accommodating the development of uses that support a 17 hours a day/7 days a week environment that meets the needs of businesses and residents; such uses include retail goods and services, food stores, restaurants and cafés, hotels, health clubs, entertainment and comparable uses. The project proposes a full-service hotel, other commercial retail and restaurant uses as part of the project, and a Cultural Uses Campus that will provide opportunities for residents and visitors alike to experience a world-class cultural use venue. Further, the project proposes 100 residential units, of which 25 units will be deed-restricted affordable housing units for households of varying income levels within the Downtown, consistent with LUCE Policy D7.7
3. The proposed Development Agreement is in conformity with the public necessity, public convenience, general welfare, and good land use practices, in that it allows for the redevelopment of an underutilized property that would benefit from reinvestment to increase employment, create new transit occupancy taxes paid to the City, and to create a mixed-use project consisting of a full-service hotel, new housing units in the Downtown, and a new Cultural Uses Campus available to the public that is consistent with the 2010 Land and Use Circulation Element’s vision for the area. The proposed project would also preserve and adaptively reuse two designated City Landmark Buildings as part of the Cultural Uses Campus.
Moreover, the project will provide community benefits including affordable housing, publicly-accessible open space on the parcel, and provide monetary fees that 15 of 19
would support mobility, construction of affordable housing, parks and recreation, early childhood initiatives, and recycled water infrastructure expansion in the City.
Further, the project seeks to be consistent with the City’s sustainability goals by committing to LEED® Platinum certification with a project designed to achieve 15% less energy than required by California Energy Code, using recycled, non-potable water sources for landscape irrigation and other County-approved uses.
4. The proposed Development Agreement will not be detrimental to the health, safety and general welfare, in that the Development Agreement would allow for the redevelopment of an existing, underutilized property that is consistent with the 2010 LUCE and 2017 DCP vision for the area. The proposed project will be located in an urbanized area and is consistent with other similar improvements in the area and does not have the potential to disrupt the urban environment or cause health or safety problems. The proposed project provides 100 new residential units, of which 25 units will be deed-restricted affordable units. The project will feature commercial uses on the ground floor, a variety open spaces on the property, including an approximately 5,000 SF publicly-accessible rooftop viewing deck. The project will also provide community benefits including the aforementioned deedrestricted affordable housing as well as payment of fees that would support the City’s affordable housing development fund, mobility/transportation, early childhood initiatives, recreation and parks, and community economic equity/opportunity initiatives.
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5. The proposed Development Agreement will not adversely affect the orderly development of the property, in that the Development Agreement is contingent upon the review and approval of a specific site plan consistent with recognized urban design principles that reflect the goals and policies of the City of Santa Monica which were established through a long range planning process and are reflected in the 2010 Land Use and Circulation Element of the City’s General Plan and the 2017 Downtown Community Plan. Further, the project will be subject to a construction mitigation plan that will be reviewed and approved prior issuance of a building permit for the project.
6. It is estimated that the proposed Development Agreement’s net fiscal impact to the City’s General Fund is estimated at $6.2M ($3.44M net new) during the first year of stabilized operations. This net fiscal impact associated with the project would be a result of the project generating substantial new Transit Occupancy Tax for the City and commercial uses would generate City business license taxes and sales tax. The project would also provide an estimated total of $6,065,000 in monetary contributions that would support the City’s affordable housing development fund, mobility/transportation projects, early childhood initiatives, parks and recreation, and community economic equity/opportunity initiatives.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct, and incorporated herein by this reference.
SECTION 2. The City Council hereby adopts the Findings, and recommends approval of the Development Agreement, attached hereto as Exhibit A and incorporated herein by this reference.
SECTION 3. Based upon Findings 1-6, the Development Agreement is hereby approved.
SECTION 4. Each and every term and condition of the Development Agreement shall be and is made a part of the Santa Monica Municipal Code and any appendices thereto. The City Council of the City of Santa Monica finds that public necessity, public convenience, and general welfare require that any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of the Development Agreement, to the extent of such inconsistencies and no further, be repealed or modified to that extent necessary to make fully effective the provisions of the Development Agreement.
SECTION 5. Any provision of the Santa Monica Municipal Code or appendices thereto, inconsistent with the provisions of this Ordinance, to the extent of such 18 of 19
inconsistencies and no further, are hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance.
SECTION 6. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 7. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall be effective 30 days from its adoption.
APPROVED AS TO FORM:
______________________________
DOUGLAS SLOAN
City Attorney
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EXHIBIT A
DEVELOPMENT AGREEMENT
[behind this page]
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: City Attorney
_______________________________________________________________________ Space Above Line For Recorder's Use
No Recording Fee Required
California Government Code Section 27383
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF SANTA MONICA,
BELLE VUE PLAZA,
AND
OCEAN AVENUE PARTNERS, LLC
__________________, 2022
Table of Contents
RECITALS ......................................................................................................................................1 ARTICLE 1 DEFINITIONS.........................................................................................................6 ARTICLE 2 DESCRIPTION OF THE PROJECT.....................................................................11
2.1 General Description ........................................................................................................11
2.2 Principal Components of the Project ..............................................................................11
2.3 No Obligation to Develop...............................................................................................14
2.4 Vested Rights..................................................................................................................14
2.5 Authorized Uses..............................................................................................................17
2.6 Alcoholic Beverage Permits ...........................................................................................21
2.7 Significant Project Features............................................................................................21
2.8 Community Benefits.......................................................................................................29
2.9 Parking ............................................................................................................................45
2.10 Design .............................................................................................................................47
2.11 Contract with City...........................................................................................................49
2.12 Coastal Commission Review..........................................................................................49 ARTICLE 3 CONSTRUCTION.................................................................................................50
3.1 Construction Mitigation Plan..........................................................................................50
3.2 Construction Hours.........................................................................................................50
3.3 Outside Building Permit Issuance Date ..........................................................................50
3.4 Construction Period ........................................................................................................51
3.5 Damage or Destruction ...................................................................................................51
3.6 Final Determination ........................................................................................................51 ARTICLE 4 PROJECT FEES, EXACTIONS, MITIGATION MEASURES
AND CONDITIONS .............................................................................................52
4.1 Fees, Exactions, Mitigation Measures and Conditions...................................................52
4.2 Conditions on Modifications...........................................................................................52
4.3 Implementation of Mitigation Measures and Conditions of Approval...........................52 ARTICLE 5 EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS .............53
5.1 Development Standards for the Project Site; Existing Regulations................................53
5.2 Permitted Subsequent Code Changes .............................................................................54
5.3 Common Set of Existing Regulations.............................................................................55
5.4 Conflicting Enactments...................................................................................................55
5.5 Timing of Development..................................................................................................56
5.6 1992 LUP Amendment Application to Coastal Commission.........................................56 ARTICLE 6 DESIGN APPROVAL...........................................................................................56
6.1 Design Approval .............................................................................................................56
6.2 Conceptual Design Review.............................................................................................58
6.3 Notification to Design Review Bodies ...........................................................................58
6.4 Expiration of Design Approvals .....................................................................................58
6.5 Concurrent Processing of One Foundation Only Permit ................................................58
6.6 Concurrent Application to California Coastal Commission ...........................................58 ARTICLE 7 CITY TECHNICAL PERMITS.............................................................................59
7.1 Definitions.......................................................................................................................59
7.2 Diligent Action by City...................................................................................................59
7.3 Conditions for Diligent Action by the City.....................................................................59
7.4 Duration of Technical City Permits................................................................................60 ARTICLE 8 AMENDMENT AND MODIFICATION..............................................................61
8.1 Amendment and Modification of Development Agreement ..........................................61 ARTICLE 9 TERM ....................................................................................................................61
9.1 Effective Date .................................................................................................................61
9.2 Term................................................................................................................................61 ARTICLE 10 PERIODIC REVIEW OF COMPLIANCE ........................................................62
10.1 City Review ....................................................................................................................62
10.2 Evidence of Good Faith Compliance..............................................................................62
10.3 Information to be Provided to Developer .......................................................................62
10.4 Notice of Breach; Cure Rights........................................................................................62
10.5 Failure of Periodic Review .............................................................................................62
10.6 Termination of Development Agreement .......................................................................63
10.7 City Cost Recovery.........................................................................................................63 ARTICLE 11 DEFAULT ..........................................................................................................63
11.1 Notice and Cure ..............................................................................................................63
11.2 Remedies for Monetary Default......................................................................................64
11.3 Remedies for Non-Monetary Default .............................................................................64
11.4 Modification or Termination of Agreement by City.......................................................66
11.5 Cessation of Rights and Obligations...............................................................................66
11.6 Completion of Improvements.........................................................................................67 ARTICLE 12 MORTGAGEES ....................................................................................................67
12.1 Encumbrances on the Project Site...................................................................................67 ARTICLE 13 TRANSFERS AND ASSIGNMENTS ..................................................................69
13.1 Transfers and Assignments.............................................................................................69
13.2 No Release Upon Transfer if Transferor Remains Owner..............................................70
13.3 Assignment to Property Transferee ................................................................................70 ARTICLE 14 INDEMNITY TO CITY ........................................................................................70
14.1 Indemnity ........................................................................................................................70
14.2 City’s Right to Defense...................................................................................................71 ARTICLE 15 GENERAL PROVISIONS ....................................................................................71
15.1 Notices ............................................................................................................................71
15.2 Entire Agreement; Conflicts...........................................................................................72
15.3 Binding Effect.................................................................................................................72
15.4 Agreement Not for Benefit of Third Parties...................................................................72
15.5 No Partnership or Joint Venture .....................................................................................72
15.6 Estoppel Certificates.......................................................................................................72
15.7 Time ................................................................................................................................73
15.8 Excusable Delays............................................................................................................73
15.9 Governing Law ...............................................................................................................74
15.10 Cooperation in Event of Legal Challenge to Agreement................................................74
15.11 Attorneys’ Fees...............................................................................................................74
15.12 Recordation.....................................................................................................................75
15.13 No Waiver.......................................................................................................................75
15.14 Construction of this Agreement......................................................................................75
15.15 Other Governmental Approvals......................................................................................75
15.16 Jurisdiction and Venue....................................................................................................76
15.17 Exhibits...........................................................................................................................76
15.18 Counterpart Signatures....................................................................................................77
15.19 Certificate of Performance..............................................................................................77
15.20 Interests of Developer.....................................................................................................77
15.21 Operating Memoranda ....................................................................................................78
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer ....................78
15.23 Waiver of Protest ............................................................................................................78
15.24 Not a Public Dedication ..................................................................................................79
15.25 Other Agreements...........................................................................................................79
15.26 Severability and Termination..........................................................................................79 Exhibit “A” Legal Description of Project Site
Exhibit “B” Project Plans
Exhibit “C” SMMC Article 9 (Planning and Zoning)
Exhibit “D” Mitigation Measures and Conditions of Approval Exhibit “E-1” Conditions of Approval to Dispense Alcohol at Restaurants Exhibit “E-2” Hotel Conditions of Approval to Dispense Alcohol Exhibit “F” Bonded Scope of Preservation Work
Exhibit “G” Publicly-Accessible Open Space
Exhibit “H” Transportation Demand Management Plan
Exhibit “I-1” Local Hiring Program for Construction
Exhibit “I-2” Local Hiring Program for Permanent Employment Exhibit “J” Construction Mitigation Plan
Exhibit “K” Permitted Fees and Exactions
Exhibit “L” Design Review Diagram
Exhibit “M” Form of Assignment and Assumption Agreement Exhibit “N” Form of First Court Alley Airspace License and Pedestrian Mall Maintenance Agreement
Exhibit “O” Form of Re-Routed First Court Alley Easement Agreement Exhibit “P” Form of Deed Restriction for Affordable Housing Units 1 DEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”), dated ____________, 2022, is entered into by and between BELLE VUE PLAZA, a California limited partnership, and OCEAN AVENUE PARTNERS, LLC, a Delaware limited liability company (collectively the “Developer”) and the CITY OF SANTA MONICA, a municipal corporation organized and existing pursuant to the laws of the State of California and the Charter of the City of Santa Monica (the “City”), with reference to the following facts:
RECITALS
A. Pursuant to California Government Code Section 65864 et seq. and Chapter 9.60 of the Santa Monica Municipal Code (collectively, the “Development Agreement Statutes”), the City is authorized to enter into binding development agreements with persons or entities having a legal or equitable interest in real property for the development of such real property.
B. Developer is the owner of approximately 82,570 square feet of land located in the City of Santa Monica, State of California, commonly known as 101 Santa Monica Boulevard, 1337 Ocean Avenue, 1333 Ocean Avenue, 1327 Ocean Avenue and 129 Santa Monica Boulevard, as more particularly described below in this Recital B and in Exhibit “A” attached hereto and incorporated herein by this reference (collectively, the “Project Site”). The Project Site consists of:
(1) approximately 52,570 square feet of land located in the City of Santa Monica, State of California, commonly known as 101 Santa Monica Boulevard, 1337 Ocean Avenue, 1333 Ocean Avenue, 1327 Ocean Avenue (collectively the “Ocean Avenue Parcel”) which consists of:
(i) the land located in the City of Santa Monica, State of California, commonly known as 101 Santa Monica Boulevard (and also commonly known as 103 Santa Monica Boulevard, 105 Santa Monica Boulevard, 107 Santa Monica Boulevard, 109 Santa Monica Boulevard, 111 Santa Monica Boulevard, 113 Santa Monica Boulevard, 115 Santa Monica Boulevard, 1355 Ocean Avenue and 1357 Ocean Avenue) that is currently improved with a two-story mixed-use commercial/residential structure with a rooftop penthouse apartment (the “101 Santa Monica Boulevard Building”) and surface parking, (ii) the land located in the City of Santa Monica, State of California, commonly known as 1337 Ocean Avenue that is currently improved with (i) a two-story building that was originally built in 1926, is a City-designated Landmark (LC-04-LM-005) and is in commercial use (the “Spanish Colonial Revival Landmark”), a detached one-story rear structure that is in commercial use (the “1337 Ocean Avenue Rear Structure”), and surface parking,
(iii) the land located in the City of Santa Monica, State of California, commonly known as 1333 Ocean Avenue that is currently improved with a two-story building that was originally built in 1906, is a City-designated Landmark (LC-01LM-001) and is in commercial use (the “Queen Anne Landmark”), a separate two-story rear structure that is in 2 commercial use and is connected to the 1333 Ocean Avenue Landmark by an unenclosed catwalk and staircase (the “1333 Ocean Avenue Rear Structure”), and surface parking and (iv) the land located in the City of Santa Monica, State of California, commonly known as 1327 Ocean Avenue that is currently improved with a two-story building that is in commercial use (the “1327 Ocean Avenue Building”) and surface parking; and (2) approximately 30,000 square feet of land located in the City of Santa Monica, State of California, commonly known as 129 Santa Monica Boulevard (the “Second Street Parcel”) that is currently improved with surface parking.
C. The City has included the Project Site within the Downtown Core land use designation under the City’s 2010 Land Use and Circulation Element of its General Plan (the “LUCE”). LUCE Policy D1.5 designates the Project Site as one of seven sites in the Downtown District to focus new investment given its accessibility to transit and ability to accommodate mixed-use development, contribute to the pedestrian-oriented environment, and support substantial community benefits. The LUCE did not establish maximum building height limits, floor area ratios (“FAR”), or other specific development standards (e.g., setbacks and step backs) for new buildings within the Downtown Core designation; instead, the LUCE deferred such standards to a future Downtown specific plan.
D. On February 28, 2013, Developer filed an application for a Development Agreement (13DEV-004), pursuant to Santa Monica Municipal Code (“SMMC”) Section
9.60.020 (the “Development Application”). The Development Application proposes a mixeduse project with a hotel, residences, a cultural uses campus, ground floor pedestrian-oriented restaurant and retail uses and subterranean parking. The originally-filed plans (the “2013 Plans”) proposed, among other things, 125 hotel rooms, 22 residential condominium units, 19 replacement rental apartments, 5 affordable rental apartments, a cultural uses campus including the preservation and adaptive re-use of the Spanish Colonial Revival Landmark and Queen Anne Landmark, ground floor restaurants and retail, an observation deck, a maximum height of 244 feet and a 4.0 FAR. As further described below, the Development Application has been revised and refined since the initial filing but has always included hotel, residential, cultural uses, pedestrian-oriented retail/restaurant uses, and subterranean parking, as is more fully described in this Agreement.
E. On August 5, 2013, the Architectural Review Board held a public hearing to preliminarily review and provide feedback on the 2013 Plans.
F. In August 2017, the City adopted the Downtown Community Plan (“DCP”), a specific plan governing the Downtown including the Project Site. Consistent with the LUCE, the Project Site is located within the Established Large Site (“ELS”) Overlay designation with the Ocean Avenue Parcel also having the Ocean Transition designation and the Second Street Parcel also having the Bayside Conservation designation. The ELS Overlay is provided for three sites in the Downtown that the DCP indicated have the potential to accommodate significant new development and provide significant community benefits. The ELS Overlay designation allows any project on the Project Site to request approval for development up to 130 feet in height and a
4.0 FAR subject to the project being processed through a development agreement, as well as 3 compliance with other specified requirements. Table 2A.4 of the DCP lists three “preferred” community benefits for a project on the Project Site: affordable housing, cultural institution, and historic preservation, all of which are included in the Project.
G. After adoption of the DCP, the 2013 Plans were revised to conform with the DCP.
In comparison to the 2013 Plans, revised plans filed in 2018 (the “2018 Plans”), included, among other things, elimination of the residential condominiums and replacement with 100% rental apartments (including more affordable housing), reduced density (2.95 FAR), a reduced hotel program, and reduced height (maximum height of 130 feet).
H. On February 20, 2018, the Architectural Review Board held a public hearing to preliminarily review and provide feedback on the 2018 Plans.
I. On March 12, 2018, the Landmarks Commission held a public hearing to preliminarily review and provide feedback on the 2018 Plans.
J. On May 2, 2018, the Planning Commission held a public hearing to consider, review and provide preliminary comments on the revised design concept, and to identify potential community benefits for consideration (commonly referred to as a “float up” discussion). The Planning Commission was generally supportive of the overall design concept, including the relationship between building height and open space, the emphasis on the pedestrian experience, and the proposed cultural uses campus as a community benefit. The Planning Commission recommended that the City Council proceed with Development Agreement discussions.
K. On June 12, 2018, the City Council held a “float-up” public hearing to preliminarily review and provide feedback on the 2018 Plans. The City Council concurred with the Planning Commission’s May 2, 2018 recommendation and directed City staff to initiate the development agreement negotiations and review process for the Project.
L. The project (the “Project”) is more specifically described in this Agreement and now includes, among other things, the following components:
(1) a full-service hotel building located in the central area of the Ocean Avenue Parcel (the “Hotel Building”),
(2) a cultural uses campus that is located north of the Hotel Building on the Ocean Avenue Parcel and is comprised of a new building (the “Cultural Uses Building”) and the relocated Spanish Colonial Revival Landmark and Queen Anne Landmark, which would be rehabilitated for adaptive reuse as part of the cultural uses campus, and open space (the “Cultural Uses Campus”),
(3) a building with restaurant/retail uses that is located near the corner of Ocean Avenue and Santa Monica Boulevard on the Ocean Avenue Parcel (the “Corner Building”),
4 (4) a mixed-use residential apartment building with ground floor retail/restaurant space located on the Ocean Avenue Parcel near the corner of Santa Monica Boulevard and First Court Alley (the “Santa Monica Boulevard Building”), (5) a mixed-use building(s) with retail/restaurant space located on the ground floor/podium level and residential apartments located within three separate forms/structures situated above the podium level on the Second Street Parcel (the “Second Street Building(s)”), (6) a publicly-accessible observation deck at the top of the Hotel Building, (7) substantial open space, including publicly-accessible open space, (8) subterranean space, including for vehicle and bicycle parking, and (9) substantial other project features and community benefits as set forth in Section 2.7 and Section 2.8, herein.
The Project is more particularly shown on the conceptual Project Plans dated July 14, 2022 and attached hereto as Exhibit “B” (the “Project Plans”).
M. The Project Site is also located in the California Coastal Zone. In October 2018, the City adopted a Local Coastal Program Update, Land Use Plan, Final Draft (“2018 Draft LUP”). The 2018 Draft LUP reflects the LUCE and DCP with respect to the Project Site’s development standards. The Project Site is located within Subarea 5, Downtown District of the 2018 Draft LUP.
N. On December 15, 2020, Developer filed an application seeking an amendment to the 1992 LUP (“1992 LUP Amendment”) to be consistent with the DCP and 2018 Draft LUP policies. The 1992 LUP Amendment, as it has been modified, would add a new policy to the 1992 LUP as follows:
If the properties located on the north side of Santa Monica Boulevard between Ocean Avenue and Second Street commonly referred to as 129 Santa Monica Boulevard, 101 Santa Monica Boulevard, 1327 Ocean Avenue, 1333 Ocean Avenue, 1337 Ocean Avenue (the “Established Large Site”) are redeveloped as a comprehensive project pursuant to a development agreement, then the development standards in Policies 67 and 71 and the corresponding development intensities shown on Map 15 shall not apply to such new project on the Established Large Site, and the project shall instead not exceed 130 feet, with no limitation on the number of stories, and a cumulative maximum 2.95 FAR across the Established Large Site.
O. To aid in the redevelopment of the Property, the City and Developer desire to allow Developer to demolish the existing improvements except for the Queen Anne Landmark and Spanish Colonial Revival Landmark and construct a new mixed-use hotel, residential, and cultural uses project with ground floor retail and subterranean parking. 5 P. The City prepared and circulated on May 18, 2020 for public review and comment a Draft Environmental Impact Report (the “DEIR”) pursuant to the California Environmental Quality Act (“CEQA”) and designated SCH No. 2018121060 to evaluate the Project’s potential environmental impacts. Following the close of a 90-day comment period on August 17, 2020, the City prepared a Final Environmental Impact Report pursuant to CEQA (the “EIR”).
Q. Developer has paid all necessary costs and fees associated with the City’s processing of the Development Application and this Agreement, including the full cost of the City’s preparation of the DEIR and the EIR.
R. The primary purpose of the Project is to redevelop the Project Site with a new mixed-use project that includes a full-service hotel, residential apartments including replacement rent-control apartments, market rate and deed-restricted affordable apartments, a new Cultural Uses Campus which includes the rehabilitation and adaptive reuse of the Queen Anne Landmark and Spanish Colonial Revival Landmark with cultural uses, pedestrian-friendly ground floor retail/restaurant uses, subterranean parking, significant open space including a publiclyaccessible observation deck and other community benefits consistent with the LUCE, DCP, 1992 LUP as amended, and the 2018 Draft LUP. 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 Project Site.
S. The City Council has determined that a development agreement is appropriate for the proposed development of the Project on the Project Site. 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 Project Site, (3) provide for public infrastructure and services appropriate to development of the Project, (4) preserve substantial City discretion in reviewing the Project’s design in accordance with Article 6 of this Agreement, (5) secure for the City improvements that benefit the public, (6) ensure the provision of community benefits as envisioned in the LUCE and DCP and (7) otherwise achieve the goals and purposes for which the Development Agreement Statutes were enacted.
T. 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 impacts and benefits of the development of the Project on the Project Site in accordance with this Agreement. Consistent with the LUCE and DCP, the Project will provide a number of significant project features and community benefits as set forth in Sections 2.7 and 2.8 of this Agreement.
U. The City Council has found that the provisions of this Agreement are consistent with the relevant provisions of the City’s General Plan, including the LUCE; the DCP; the 1992 LUP as amended by the 1992 LUP Amendment; and the 2018 Draft LUP.
V. On March 23, 2018, Developer filed a demolition permit application for the 101 Santa Monica Boulevard Building (18BLD-5360). On October 1, 2018, Developer filed demolition permit applications for the 1327 Ocean Avenue Building (18BLD-7899), the 1333 Ocean Avenue Rear Structure (18BLD-7918), and the 1337 Ocean Avenue Rear Structure 6 (18BLD-7917). Pursuant to SMMC Section 9.25.040(E), members of the public had a 75-day period from the filing of each demolition permit application to file an application to designate the applicable existing building as a landmark or structure of merit. No applications to designate any of these existing buildings were filed during the applicable 75-day period.
W. On May 18, 2022, the City's Planning Commission held a duly noticed public hearing on the updated Development Application, the EIR, the 1992 LUP Amendment, and this Agreement, and at such hearing, the Planning Commission recommended that the City Council certify the EIR, approve the 1992 LUP Amendment, and approve the Project including this Agreement.
X. On May 24, 2022, the City Council adopted Resolution No. 11420 stating its intention to establish a pedestrian mall on a portion of First Court alley adjacent to the Project site pursuant to the Pedestrian Mall Law of 1960, California Streets & Highways Code Sections 11000 et seq., and setting a public hearing date of September 27, 2022 for the City Council to make a determination on the establishment of the Pedestrian Mall.
Y. On July 14, 2022, the City Council held a duly noticed public hearing on the updated Development Application, the EIR, the 1992 LUP Amendment, and this Agreement, and at such hearing the City certified the EIR and adopted a Statement of Overriding Considerations and Mitigation Monitoring Plan, adopted Resolution ______ approving the 1992 LUP Amendment, and introduced for first reading Ordinance No. _____, approving this Agreement.
Z. On __________, 2022, the City Council adopted Ordinance No. ______, approving this Agreement.
NOW THEREFORE, in consideration for the covenants and conditions hereinafter set forth, the Parties hereto do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms not defined below shall have the meanings set forth in the City’s Zoning Ordinance. The terms defined below, whether capitalized or not, have the meanings in this Agreement as set forth below unless the Agreement expressly requires otherwise:
1.1 “1992 LUP” means the Coastal Land Use Plan in effect as of the Effective Date unless otherwise indicated in this Agreement.
1.2 “2018 Draft LUP” means the Local Coastal Program Update Land Use Plan Final Draft, October 2018 adopted by the City Council which, as of the Effective Date, has not been certified by the California Coastal Commission.
1.3 “30% Income Household” means 30% Income Household as defined in the Affordable Housing Deed Restriction.
7 1.4 “50% Income Household” means 50% Income Household as defined in the Affordable Housing Deed Restriction.
1.5 “80% Income Household” means 80% Income Household as defined in the Affordable Housing Deed Restriction.
1.6 "Affordable Housing Deed Restriction” has the meaning set forth in Section
2.7.2. 1.7 “Affordable Housing Units” has the meaning set forth in Section 2.7.2.
1.8 “Agreement” means this Development Agreement.
1.9 “ARB” means the City’s Architectural Review Board.
1.10 “Building” or “Buildings” means, individually or collectively as the circumstances may require, the Corner Building, the Santa Monica Boulevard Building, the Hotel Building, the Cultural Uses Building, the Spanish Colonial Revival Landmark, the Queen Anne Landmark and the Second Street Building(s) with subterranean Floor Area and subterranean parking to be developed on the Project Site as well as the tunnels below First Court Alley connecting the subterranean garages on the Project Site and the Santa Monica Boulevard Building(s) projection above First Court Alley. This Agreement’s referring to one or more structures as a “Building” does not affect the determination as to whether the structure is one or more buildings under the City’s SMMC, including zoning, or building codes.
1.11 “Building Height” means the vertical distance at any point in a given plane measured from the Average Natural Grade (ANG). Notwithstanding Section 9.04.050 of the Zoning Ordinance, the Parties agree the ANG for the Project Site (including both the Ocean Avenue Parcel and Second Street Parcel) is 77’-0”.
1.12 “Building Permit” means any permit required by SMMC section 8.08.050(a) and any successors thereto, including, without limitation, a foundation only permit.
1.13 “City Council” means the City Council of the City of Santa Monica, or its designee.
1.14 “City Manager” means the City Manager or his or her designee.
1.15 “City Parties” mean the City, its City Council, boards and commissions, departments, officers, agents, employees, volunteers and other representatives.
1.16 “Certificate of Occupancy” means either temporary or permanent Certificate of Occupancy, unless otherwise expressly specified in this Agreement.
1.17 “Community Development Director” means the Community Development Department Director of the City of Santa Monica, or his or her designee. 8 1.18 “Cultural Facilities” means the facilities within the Cultural Uses Campus engaged in activities to serve and promote aesthetic and educational interest in the community that are open to the public on a regular basis. This classification includes spaces for display or preservation of objects of interest in the sciences or arts (including architecture); libraries; museums; historical sites; and art galleries. It does not include (i) schools or institutions of higher education providing curricula of a general nature; however this statement does not preclude students from accessing the Cultural Facilities in connection with school-related research or educational activities, or (ii) performing arts centers for theater, music and dance, however this statement does not preclude performing arts activities from occurring at the Cultural Facilities as part of any arts-related programming. Cultural Facilities use includes uses accessory to the Cultural Facilities uses consistent with SMMC Section 9.52.020.2490 including, without limitation (collectively referenced herein as “Cultural Accessory Uses”): (a) food and beverage service that may be open to the general public, including Restaurants, Full-Service and Restaurants, Limited Service & Take-Out as defined in SMMC Section 9.51.030(B)(8)(b) and (c) respectively with Outdoor Dining and Seating Area as defined in SMMC Section
9.51.030(B)(8)(e); and (b) General Retail Sales, Small-scale as defined in SMMC Section
9.51.030(B)(22)(b).
1.19 “Days” means calendar days.
1.20 “DCP” has the meaning set forth in Recital F.
1.21 “Design Review” means the design review process articulated for the Project in Article 6.
1.22 “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.
1.23 “Effective Date” has the meaning set forth in Section 9.1 below.
1.24 "Floor Area" has the meaning as defined in Section 9.52.020.0870 of the Zoning Ordinance.
1.25 “Floor Area Ratio" or FAR” means floor area ratio as defined in Section
9.52.020.0880 of the Zoning Ordinance.
1.26 “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.
1.27 “Hotel Uses” means Hotel uses as defined in SMMC Section 9.51.030(B)(15)(b) and uses accessory to the Hotel uses consistent with SMMC Section 9.52.020.2490 including, without limitation, amenities such as: (a) spa/fitness/personal services uses that may be open to the general public, including fitness centers that qualify as Personal Services, Physical Training as defined in Section 1.38, Commercial Entertainment and Recreation, Large- and Small-Scale 9 Facilities uses as defined in SMMC Section 9.51.030(B)(7)(d) and (e), and/or uses that qualify as General Personal Services as defined in SMMC Section 9.51.030(B)(21)(a); (b) meeting/conference and banquet space that may be open to the general public; (c) food and beverage service that may be open to the general public, including Restaurants, Full-Service, Restaurants, Limited Service & Take-Out, and Bar/Night Club/Lounge as defined in SMMC Section 9.51.030(B)(8)(b),(c), and (a) respectively with Outdoor Dining and Seating Area as defined in SMMC Section 9.51.030(B)(8)(e); and (d) a sundry shop that may be open to the general public, including General Retail Sales, Small-scale as defined in SMMC Section
9.51.030(B)(22)(b), Convenience Market and General Market uses as defined in SMMC Section
9.51.030(B)(10)(a) and/or (c), respectively.
1.28 “Including” means “including, but not limited to.”
1.29 “Landmarks Commission” means the City’s Landmarks Commission.
1.30 "LEED® Rating System" means the Leadership in Energy and Environmental Design (LEED®) Green Building Rating System known as “LEED®v4”.
1.31 “Legal Action” means any action in law or equity.
1.32 “Life of the Project” shall mean the period commencing on the date the final certificate of occupancy is issued for the Project and ending with the useful life of the Project; provided, however, that if the Project is damaged or destroyed and cannot be rebuilt in accordance with the development standards permitted in this Agreement, then the Life of the Project shall be deemed to have ended as of the date of such damage or destruction of the Project. For purposes herein, if a building within the Project is issued a certificate of occupancy separate from another building within the Project, then the Life of the Project shall be determined for each separate building for which a final certificate of occupancy has been issued.
1.33 “Maximum Floor Area” means 316,750 square feet of Floor Area.
1.34 “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. Without limiting the generality of the foregoing, the exercise of duties and/or professional judgment by any City official referenced in SMMC Article 7 (Public Works) and Article 8 (Building Regulations), as amended from time to time, shall be considered a Ministerial Approval.
1.35 Moderate Income Household means Moderate Income Household as defined in SMMC Section 9.64.020(T).
1.35 “Parties” mean both the City and Developer and “Party” means either the City or Developer, as applicable.
1.36 “Pedestrian Mall” means the portion of First Court Alley that is established as a pedestrian mall by the City, acting in its sole and absolute discretion, in accordance with the 10 Pedestrian Mall Law of 1960 (Streets and Highways Code sections 11000 et seq.).
1.37 “Person” means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, domestic or foreign.
1.38 “Personal Services, Physical Training” means gyms, exercise clubs, or studios offering martial arts, physical exercise, yoga training and similar types of instruction to classes and groups and having less than 5,000 square feet of Floor Area. This classification also includes exclusively youth-serving studios offering performing arts, dance, martial arts, physical exercise, and similar types of instruction to classes and groups.
1.39 “Project” has the meaning set forth in Recital L.
1.40 “Project Plans” mean the plans for the Project that are attached to this Agreement as Exhibit “B”.
1.41 “Rental Housing Units” means the residential rental units in the Second Street Building(s) and the Santa Monica Boulevard Building.
1.42 “Residential Amenities and Accessory Uses” means amenities and accessory uses for residents and their guests, including but not limited to lobbies, reception areas/desk, resident/visitors lounges, pool/spa/jacuzzi and associated deck areas, property management/administrative/leasing offices, bicycle parking, dog wash facilities, mail/package delivery facilities and storage, exercise/fitness rooms, recreation rooms/areas, and screening rooms.
1.43 “Secretary of the Interior’s Standards” means the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings (2017), revised by Anne E. Grimmer.
1.44 “SMMC” means the Santa Monica Municipal Code, including the Zoning Ordinance, in effect on the Effective Date unless specifically stated to refer to the Santa Monica Municipal Code as it may be in effect at some other time.
1.45 “Subterranean Space” means all space in the Project below the ground floor as shown on the Project Plans attached as Exhibit “B”.
1.46 “Transfer” means the transfer of title to property by the execution of the deed or other instrument.
1.47 “Zoning Ordinance” means the City of Santa Monica Comprehensive Land Use and Zoning Ordinance (Chapters 9.01 to 9.68 of the SMMC) in effect on the Effective Date, set forth in its entirety as part of Exhibit “C” (Planning and Zoning). 11 ARTICLE 2
DESCRIPTION OF THE PROJECT
2.1 General Description. The Project includes all aspects of the proposed development of the Project Site as more particularly described in this Agreement and on the Project Plans, which present the Project in concept. 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. Detailed plans and specifications for the construction of the Project (collectively, the “Construction Plans and Specifications”), including, without limitation, structural plans, off-site improvement plans, and working drawings, shall be prepared by Developer subsequent to the Effective Date based upon the Project Plans, and nothing herein shall be interpreted by the Developer as a pre-approval of the Construction Plans and Specifications by the City Building Official or City Engineer. The Project includes the following components, which are further described below in this Agreement:
Use Units/Floor Area
Hotel 120 Rooms
(See Section 2.2(b)(2))
Residential 100 units
(See Section 2.2(e))
Retail/Restaurant/Commercial
Uses
36,110 square feet
(See Section 2.5.1(h))
Cultural Uses Campus 33,725-35,500 square feet
(See Section 2.8.3)
Total Floor Area 316,750 (248,570 square feet above-grade and 68,180 square feet of below grade)
(See Section 2.2(f))
Open Space Total: 41,112 square feet, including 20,556 square feet on the ground level. (See Section 2.2(i))
Publicly-Accessible Open Space: Approximately
12,000 square feet at the ground level and 4,800
square-foot Publicly-Accessible Observation Deck.
(See Exhibit “G”)
Parking 285 vehicle parking spaces, bicycle parking per Condition 27 of Section B of Exhibit “D” and Exhibit
“H”.
(See Section 2.9)
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 12 which are hereby approved by the City subject to the other provisions of this Agreement:
(a) Except for the Spanish Colonial Revival Landmark and Queen Anne Landmark, demolition of all existing structures and surface parking; (b) Ocean Avenue Parcel Buildings. On the Ocean Avenue Parcel:
(1) Construction of a Cultural Uses Campus, including the relocation and rehabilitation/restoration of the Spanish Colonial Revival Landmark and Queen Anne Landmark in accordance with Section 2.8.2 and construction of a new multi-story Cultural Uses Building which connects to the Spanish Colonial Revival Landmark, Queen Anne Landmark and Hotel Building, and open space. Use regulations for the Cultural Use Campus are detailed in Section 2.5 below;
(2) Construction of the new multi-story Hotel Building with Hotel Uses, including 120 hotel rooms, ground floor commercial uses as further described in Section 2.5 below and a Publicly-Accessible Observation Deck as further described in Section
2.8.4 below,
(3) Construction of the new multi-story Corner Building with commercial uses as further described in Section 2.5 below, (4) Construction of the new multi-story Santa Monica Boulevard Building with residential apartment uses above the ground floor and ground floor commercial uses as further described in Section 2.5 below, and
(c) Second Street Parcel Buildings. On the Second Street Parcel, construction of the new multi-story Second Street Building(s) consisting of residential apartment uses above the ground floor, with a 2nd Floor residential deck that extends above/across First Court Alley in accordance with Exhibit “N” (Form of First Court Alley License and Pedestrian Mall Maintenance Agreement), and ground floor commercial uses as further described in Section
2.5 below;
(d) Subterranean Garage. Construction of a multi-level subterranean parking garage on both the Ocean Avenue Parcel and Second Street Parcel with below-grade tunnel connections underneath First Court Alley in accordance with Exhibit “N” (Form of First Court Alley License and Pedestrian Mall Maintenance Agreement). The total below-grade Floor Area in the subterranean garage is 68,180 square feet. Use regulations for the subterranean parking garage are detailed in Section 2.5 below;
(e) Residential Unit Total. Within the Santa Monica Boulevard Building and Second Street Building(s) a total of one-hundred (100) Rental Housing Units. The Rental Housing Units will include Replacement Units and Affordable Housing Units pursuant to Sections 2.7.1, 2.7.2 and 2.8.1, and the market-rate Rental Housing Units will comply with the unit mix requirements in SMMC Section 9.10.070(C)(1)(b); 13 (f) Floor Area Total. Of the Project’s total Maximum Floor Area of 316,750 square feet, a maximum of 248,570 square feet of above-grade Floor Area combined on the Ocean Avenue Parcel and Second Street Parcel;
(g) Pedestrian, Bicycle, and Vehicular Access. Improvement of the Project Site for enhanced pedestrian, bicycle and vehicular access to/from the Project, including closure of the existing curb cut along Ocean Avenue, creation of a curb cut along Second Street, creation of the Pedestrian Mall pursuant to Division 13, Part 1 of the Streets and Highways Code and Section 2.2(h), and dedication of a public right-of-way easement on the north side of the Second Street Parcel as further described in Section 2.13 and Exhibit “O” (Form of Re-Routed First Court Alley Easement Agreement);
(h) Improvements to First Court Alley. Improvements to First Court Alley, including (i) improvement of First Court Alley with open space, in accordance with Exhibit “N” (Form of First Court Alley License and Pedestrian Mall Maintenance Agreement), that enhances pedestrian access to/from/through the Project, provides additional opportunities for enhancing the pedestrian environment, including with outdoor seating/dining, (ii) retention of vehicular access for emergency and service vehicles on First Court Alley, and (iii) retention of the existing utilities within First Court Alley; and
(i) Open Space. Improvement of the Project Site with open space pursuant to DCP Section 9.10.080(C) including a minimum of 41,112 square feet of open space comprised of (a) a minimum of 20,556 square feet at the ground level (including PubliclyAccessible Open Space in accordance with Section 2.8.4 below, the Pedestrian Mall area and up to 4,940 square feet of outdoor dining area) and (b) the remaining open space located anywhere in the Project Site including on roof decks or balconies, including a Publicly-Accessible Observation Deck as described in Section 2.8.4 below. Notwithstanding the foregoing, any area of the Pedestrian Mall directly adjacent to Santa Monica Boulevard constituting part of the existing adjoining public sidewalk, and continuing east and west of the Pedestrian Mall along Santa Monica Boulevard shall not be considered as open space, and shall be deemed as a public sidewalk, fully accessible to all pedestrians consistent with customary use of a public sidewalk in the City.
(j) Authorization of Pedestrian Mall. Developer acknowledges, understands, and agrees that any references to the Pedestrian Mall in this Agreement are predicated upon authorization of the Pedestrian Mall by the City, acting in its sole and absolute discretion, in accordance with the Pedestrian Mall Law of 1960 (Streets and Highways Code sections 11000 et seq.). Developer further acknowledges that, if the Pedestrian Mall is not authorized by the City Council, City shall have no obligation to execute the First Court Alley License and Pedestrian Mall Maintenance Agreement, the form of which is included in Exhibit “N”. 14 2.3 No Obligation to Develop.
2.3.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to require Developer to proceed with the construction of the Project; provided, however, that if Developer elects to proceed with any portion of the Project, then (i) Developer shall substantially complete the Cultural Uses Campus prior to issuance of a temporary or final certificate of occupancy for the Hotel Building and (ii) Developer shall not be entitled to receive a final certificate of occupancy for any Building in the Project until and unless all of the Buildings constituting the Project have been substantially completed within the time period specified, below. (b) Once Developer proceeds with construction of any portion of the Project, Developer shall diligently prosecute to completion all of the Buildings in the Project with the intent to substantially complete the entire Project within four (4) years of commencing development of any portion of the Project. For purposes herein, "commencing development of any portion of the Project” means the issuance of a Building Permit but not a demolition only permit and “substantially complete” means completion to a point that a temporary certificate of occupancy is issued. In the event that Developer fails to substantially complete all Buildings within the Project within four (4) years of commencing development of any portion of the Project, Developer and City shall meet and confer to establish a schedule for substantial completion. For the avoidance of doubt, any proposed changes to the Project, including changes proposed after commencement of construction of the Project, shall be governed by this Agreement including Sections 2.4.2 (Minor Modifications) and 2.4.3 (Major Modifications). (c) Except as provided in this Agreement, the decision to proceed or to forbear or delay in proceeding with construction of the Project shall be in Developer’s sole discretion.
2.3.2 Failure to Proceed. Except as expressly provided in this Agreement, failure by Developer to proceed with construction of the Project 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 Mitigation Measures. Notwithstanding any provision of this Section 2.3 to the contrary, Developer shall be required to implement all mitigation measures and conditions of approval required under this Agreement in accordance with and at the time specified in Exhibit “D” and may be subject to all remedies specified in this Agreement for the failure to implement these mitigation measures and conditions of approval as and when so required.
2.4 Vested Rights.
2.4.1 Approval of Project Plans. The City hereby approves the Project Plans as the conceptual scope of the Project. 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 15 at the Project site. The Project Plans to be maintained by the City and Developer shall be in a half-size set.
2.4.2 Minor Modifications to Project. Developer with the approval of the Community Development Director, may make minor changes to the Project or Project Plans (“Minor Modifications”) without amending this Agreement; provided that the Community Development 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 significant project features (Section 2.7) and/or community benefits (Section 2.8) associated with the Project, unless expressly authorized in Section 2.7 or Section 2.8. The Community Development Director shall notify the Planning Commission and City Council in writing of any Minor Modifications approved pursuant to this Section 2.4.2. Any proposed change which the Community Development 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 ground floor setback of the Project, as depicted on the Project Plans, if by such reduction the applicable setback would be less than the Building Frontage Line requirements in Section 9.10.060(D) of the DCP as of the Effective Date; (b) Any change in use not consistent with the permitted uses defined in Section 2.5 below;
(c) Any reduction in the total number of hotel rooms specified in Section 2.2 by more than 15 rooms or increase in the total number of hotel rooms in excess of 120;
(d) Any reduction in the number of market-rate Rental Housing Units specified in Section 2.2 by more than five (5) units;
(e) Any increase in the total number of Rental Housing Units in excess of one-hundred (100);
(f) Any reduction in the number of Replacement Units specified in Section 2.7.1(c), Deed-Restricted Affordable Housing Units specified in Section 2.7.2, or Community Benefit Affordable Housing Units specified in Section 2.8.1; (g) For the Rental Housing Units that are not Replacement Units or Affordable Housing Units, any change in the unit mix that causes such units not to achieve the unit mix requirements for market-rate units in SMMC Section 9.10.070(C)(1)(b)(i); (h) For the Affordable Housing Units that are not Replacement Units, any change in the unit mix;
16 (i) For the Deed-Restricted Affordable Housing Units specified in Section 2.7.2 and the Community Benefit Affordable Housing Units specified in Section 2.8.1, any change in the unit size that results in such Affordable Housing Units not achieving the minimum unit sizes specified in the Affordable Housing Deed Restriction; (j) Any increase in floor area above the Maximum Floor Area; provided, however, that the following may be processed as a Minor Modification pursuant to Section 2.4.2: (i) shifting Floor Area from building Floor Area (above or below-grade) to Floor Area for outdoor dining, (ii) shifting Floor Area between the Second Street Parcel to the Ocean Avenue Parcel, (iii) conversion of vehicle parking spaces to Floor Area for other permitted uses in the Subterranean Space consistent with Section 2.5.1(g) if the City’s Community Development Director determines such vehicle parking spaces are no longer necessary to meet the Project’s peak parking demand;
(k) Any increase in the maximum Building Height above 130 feet for the Hotel Building, 60 feet for the Cultural Uses Building, 58 feet for the Corner Building, 75 feet for the Santa Monica Boulevard Building, or 106 feet Second Street Building(s); (l) Any increase in the permitted height projections that exceeds 5% of the height projections allowed by Section 2.10(d) below; (m) Any increase in the number of parking spaces above the maximum allowed by the SMMC except as provided therein; or any decrease in the number of parking spaces, unless the City’s Community Development Director determines such vehicle parking spaces are no longer necessary to meet the Project’s peak parking demand; (n) Any increase exceeding the clear interior height and width of the Project’s below-grade connections under First Court Alley connecting the subterranean garages on the Ocean Avenue Parcel and Second Street Parcel as shown on the Project Plans, unless the City Engineer recommends approval of such increase and the Community Development Director approves such increase as a Minor Modification pursuant to Section 2.4.2. (o) Reduction of the Project’s publicly-accessible open space, as described in Section 2.8.4 below;
(p) Reduction of the Project’s open space as described in Section
2.2(i);
(q) Any variation in the design, massing, open space, location of balconies, 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 Design Review pursuant to Article 6 and Coastal Commission approval of a Coastal Development Permit;
(r) Any reduction in the minimum size of the Cultural Uses Campus in Section 2.8.3 by more than five (5%) unless a greater reduction is required as a condition of approval for Design Review approval pursuant to Article 6 or Coastal Commission approval of a Coastal Development Permit; and
17 (s) Any other change that would reduce or materially alter the significant project features as set forth in Section 2.7 and/or community benefits as set forth in Section 2.8, unless expressly authorized in Section 2.7 or Section 2.8.
If a proposed modification does not exceed the Major Modification thresholds established above, then the proposed modification may be reviewed as a Minor Modification in accordance with Section 2.4.2.
2.4.4 City Consent to Modification. The City may impose customary 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 Community Development 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 Design Review approval in accordance with Article 6 below, 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 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 Sections 2.5 and 2.6. Except for any required Design Review approval pursuant to Article 6 of this Agreement, the City shall have no further discretion over the elements of the Project which have been delineated in the Project Plans (as the same may be modified from time to time in accordance with this Agreement).
2.4.6 Foundation Only Building Permit. SMMC Section 8.08.070(b) allows for issuance of partial permits for portions of a structure. Developer may submit an application for one or more foundation only permits, which application(s) shall be processed according to the Building and Safety Division’s Foundation Only Permit policy (PT-05-03, or any successor thereto).
2.5 Authorized Uses. The City approves the following authorized uses for the Project:
2.5.1 Permitted Uses. Permitted Uses in the Project are as specified below:
(a) In the Cultural Uses Campus:
(1) Cultural Facilities (including on the rooftop of the Cultural Uses Building).
(2) On the rooftop of the connection between the Cultural Uses Building and Hotel Building, Cultural Facilities and/or Hotel Uses, including a pool. 18 (3) Within the one-story connection between the Cultural Uses Campus and Hotel Building, Cultural Facilities and/or Hotel Uses. (4) Uses accessory to any of the permitted uses in this Section
2.5.1(a) consistent with SMMC Section 9.52.020.2490, including, but not limited to:
(i) General Retail Sales, Small-scale as defined in
SMMC Section 9.51.030(B)(22)(b); and
(ii) Restaurants, Full-Service and Limited Service &
Take-Out as defined in SMMC Section 9.51.030(B)(8)(b) and (c), respectively, with Outdoor Dining and Seating Area as defined in SMMC Section 9.51.030(B)(8)(e). (b) In the Hotel Building:
(1) Hotel Uses.
(2) Pedestrian-oriented retail/restaurant uses, including:
(i) General Retail Sales, Small-scale as defined in
SMMC Section 9.51.030(B)(22)(b),
(ii) Convenience Market and General Market uses as
defined in SMMC Section 9.51.030(B)(10)(a) and (c), respectively, (iii) Restaurants, Full-Service and Limited Service &
Take-Out as defined in SMMC Section 9.51.030(B)(8)(b) and (c), respectively, with Outdoor Dining and Seating Area as defined in SMMC Section 9.51.030(B)(8)(e), (iv) General Personal Services as defined in SMMC
Section 9.51.030(B)(21)(a) so long as the individual tenant space(s) are 7,500 square feet or less and 50 linear feet or less of ground floor street frontage, (v) Personal Services, Physical Training and
Commercial Entertainment and Recreation, Small-Scale Facility as defined in SMMC Section
9.51.030(B)(7)(e), so long as the individual tenant space(s) are 50 linear feet or less of ground floor street frontage, and
(vi) Any other uses that are designated as permitted uses on the ground floor of the Ocean Avenue Parcel by the SMMC in effect at the time the use is established.
(3) Uses accessory any of the permitted uses in this Section
2.5.1(b) consistent with SMMC Section 9.52.020.2490.
(4) On the rooftop of the Hotel Building, Publicly-Accessible Observation Deck complying with the regulations in Section 2.8.4(d) and accessory uses, including an elevator lobby.
19 (c) In the Corner Building, all uses permitted in the commercial space in the Hotel Building pursuant to Section 2.5.1(b)(2) and uses accessory to such uses consistent with SMMC Section 9.52.020.2490.
(d) In the Santa Monica Boulevard Building:
(1) Above the ground floor, Rental Housing Units and
Residential Amenities and Accessory Uses.
(2) On the ground floor, all uses permitted in the commercial space in the Hotel Building pursuant to Section 2.5.1(b)(2) and uses accessory to such uses consistent with SMMC Section 9.52.020.2490.
(e) In the Second Street Building(s):
(1) Above the ground floor, Rental Housing Units and
Residential Amenities and Accessory Uses.
(2) On the ground floor, all uses permitted in the commercial space in the Hotel Building pursuant to Section 2.5.1(b)(2) and uses accessory to such uses consistent with SMMC Section 9.52.020.2490.
(f) In up to 68,180 square feet of Floor Area in the Subterranean Space on the Ocean Avenue Parcel and/or Second Street Parcel, Cultural Facilities, Hotel Uses, Residential Amenities and Accessory Uses, all uses in Section 2.5.1(b)(2), and uses included in Section 2.5.1(g) below.
(g) In the Subterranean Space not designated as Floor Area, the following additional uses are Permitted Uses:
(1) Parking including regular, tandem and valet parking, and car share parking;
(2) Bicycle storage/parking and repair facilities/rooms for Project residents and employees;
(3) Employee showers and lockers;
(4) Mechanical, plumbing and electrical equipment;
(5) Storage space for the hotel and Project residents and tenants; and
(6) Uses accessory to any of the permitted uses in the Project consistent with SMMC Section 9.52.020.2490.
20 (h) Notwithstanding the above, commercial uses other than Hotel Uses and Cultural Facilities Uses (including their accessory uses), shall not exceed 36,110 square feet of Floor Area.
(i) In the Project’s open space, outdoor dining including outdoor dining associated with any of the permitted uses in this Section 2.5.1 and bicycle parking.
Except as specifically provided herein, Developer will not be required to obtain any additional Discretionary Approvals for any of the Permitted Uses. Permitted Uses may commence in the Project upon issuance of a City business license and without any discretionary planning approvals for such uses.
2.5.2 Uses Permitted through Minor Use Permit. A minor use permit shall be required for uses identified as requiring a Minor Use Permit 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 in Section 2.5.1 above. Uses requiring a Minor Use Permit may commence operating at the Project upon issuance of a Minor Use Permit in accordance with the procedures established in the SMMC and the issuance of a business license.
2.5.3 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 in Section 2.5.1 above and (b) any uses requiring a Conditional Use Permit in Section 2.6.
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.
2.5.4 Other Uses Subject to Discretionary City Planning Approvals. In addition to Permitted Uses, Minor Use Permit Uses, and Conditionally Permitted Uses, Developer may seek City discretionary planning approval for uses in the ground floor space and Subterranean Space that are allowed by any other City discretionary process as provided in the Zoning Ordinance in effect when the use is sought to be established. Such use(s) may not commence until the requisite City discretionary planning approval and a business license are obtained.
2.5.5 Prohibited Uses.
(a) Vacation Rentals and Corporate Housing. Notwithstanding the foregoing, vacation rentals as defined in SMMC Section 6.20.010(m) and corporate housing as defined in SMMC Section 9.51.020(A)(2) are prohibited. These prohibitions shall be included in all residential leases in the Project and shall be acknowledged by the tenant in the lease. (b) Change of Use in Rental Housing Units. Developer covenants and agrees that any conversion of the Rental Housing Units to another use, including without limitation, condominiums, is prohibited during the Life of the Project. Notice of this Section
2.5.5(b) shall be recorded separately from and concurrently with this Agreement, stating that its terms are applicable for the Life of the Project.
21 2.6 Alcoholic Beverage Permits.
2.6.1 In the event Developer or a business operator proposes a new business or use dispensing for sale or other consideration, alcoholic beverages, including beer, wine, malt beverages, and distilled spirits for on-site or off-site consumption, a Conditional Use Permit or Alcohol Exemption Zoning Conformance Permit, as applicable, shall be required pursuant to SMMC Section 9.31.040, or any successor thereto, except for Restaurants complying with Section 2.6.2, and Hotel Uses and Cultural Facilities uses complying with Section 2.6.3.
Notwithstanding the foregoing, no Conditional Use Permit or Alcohol Exemption shall be required for catered events for which the necessary permits then required for such events have been obtained.
2.6.2 Restaurants, Full Service with or without Outdoor Dining and Seating Areas and Restaurants, Limited-Service and Take-Out with or without Outdoor Dining and Seating Areas which offer alcoholic beverages incidental to meal service shall be exempt from the provisions of SMMC 9.31.040 of the Zoning Ordinance, provided that the operator of the Restaurant (or Developer, if Developer is the applicant) agrees in writing to comply with all of the criteria and conditions in Exhibit “E-1” of this Agreement and the Developer shall cause the applicable lease (or other agreement with the Restaurant operator) to contain a clause that requires the restaurant tenant to comply with such terms and conditions.
2.6.3 Hotel, with or without Outdoor Dining and Seating Areas, and Cultural Facilities Uses shall be exempt from the provisions of SMMC 9.31.040, provided that the operator of the Hotel (or Developer, if Developer is the applicant) agrees in writing to comply with all of the criteria and conditions in Exhibit “E-2” of this Agreement and the Developer shall cause the Hotel management agreement (or other agreement with the Hotel operator), if any, to contain a clause that requires the Hotel operator to comply with such terms and conditions. For the avoidance of doubt, restaurants located in the Hotel Building may offer alcoholic beverages pursuant to Section 2.6.2 above.
2.6.4 This Section 2.6 shall survive the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and shall continue in effect for the Life of the Project. Notice of the terms and conditions in Exhibit “E-1” and “E-2” shall be recorded separately from and concurrently with this Agreement, stating they are applicable for the Life of the Project.
2.7 Significant Project Features. Set forth below in this Section 2.7 are the significant project features to be achieved and/or developed in accordance with the terms of this Agreement.
2.7.1 Replacement of Existing Rent Controlled Housing Units. Developer currently has nineteen (19) residential rental dwelling units (“Existing Unit(s)”) located in the existing 101 Santa Monica Boulevard Building that are subject to the Santa Monica Rent Control Law (Article XVIII of the City Charter) (“RCL”)). As a condition to issuance of a Certificate of Occupancy for the Project or any portion of the Project, Developer shall comply with the following requirements:
22 (a) Removal of Units from Rental Housing Market. The final permit necessary to demolish, convert, or otherwise remove any Existing Unit from the rental housing market shall not be issued until the Developer has first secured a removal permit under Section 1803(t) of the RCL or withdrawn the Existing Units from the rental market pursuant to the provisions of the Ellis Act (Government Code section 7060 et seq.). (b) Compliance with Removal Permit. If Developer secures a Removal Permit under Section 1803(t) of the RCL to remove the Existing Units from the rental housing market, Developer shall comply with all of the terms and conditions of the Removal Permit and the requirements set forth in Section 2.7.1(c) shall not be applicable. (c) Compliance with Ellis Act. If Developer removes the Existing Units from the rental housing market pursuant to the Ellis Act, then Developer shall comply with all provisions of the Ellis Act in effect at the time of removal. Developer understands, acknowledges, and agrees that the City’s Rent Control Board shall have the authority to enact regulations implementing the anti-abuse provisions permitted by the Ellis Act, consistent with and in furtherance of the purposes of the RCL in effect at the time that Developer seeks to demolish, convert, or otherwise remove an Existing Unit. In addition, the following requirements shall apply:
1) Rent Control Board Regulations. Developer shall
comply with the Rent Control Board regulations implementing the Ellis Act then in effect and applicable to the “Owners” including, but not limited to, Subchapter B of Chapter 16 (§1604- 1613) of the Rent Control Board Regulations.
2) Replacement Units. Notwithstanding any provision to the contrary herein, if the Existing Units are demolished and the Project’s Rental Housing Units have been constructed, Developer agrees that nineteen (19) Replacement Units shall be provided in the Second Street Building(s) and/or the Santa Monica Boulevard Building, as follows: sixteen (16) Rental Housing Units shall be subject to the RCL (“Price-Restricted Replacement Units”); and three (3) Rental Housing Units shall be deed restricted for 80% Income Households in accordance with Section 2.7.2(d) (the “Affordable Replacement Units”). The PriceRestricted Replacement Units and the Affordable Replacement Units are referenced collectively herein as the “Replacement Units”. Developer acknowledges, understands, and agrees that the purpose of this subparagraph is to ensure that the Price-Restricted Replacement Units are subject to the RCL in accordance with Gov’t Code Section 7060.2(d).
3) The Replacement Units are Subject to Rent Control
Law and Regulations. All Replacement Units, including the Affordable Replacement Units, shall be subject to the RCL and regulations. Developer understands, acknowledges, and agrees that the Rent Control Board shall have jurisdiction to ensure Developer’s compliance with the RCL and regulations as to the leasing or rental of the Replacement Units after the initial tenancy. 4) Displaced Tenant Option For Permanent Relocation
Fee. Developer understands, acknowledges, and agrees that tenants with leases of Existing Units in effect at the time that the Existing Units are withdrawn from the rental housing market constitute “Displaced Tenant(s)” within the meaning of SMMC Chapter 4.36. Notwithstanding 23 the requirements in SMMC ch. 4.36 for Developer to pay a permanent relocation fee (or provide permanent physical relocation), when Developer provides Displaced Tenants with the required Notice To Terminate Tenancy, Developer shall also provide Displaced Tenants with a Notice of Temporary Relocation Option which shall inform the Displaced Tenant that he/she/they may elect to be temporarily relocated in accordance with Section 2.7.1(c)(5) below instead of receiving the permanent relocation fee. If a Displaced Tenant does not notify Developer within thirty (30) days of the date of the Notice of Temporary Relocation Option that such Displaced Tenant plans to be relocated in accordance with Section 2.7.1(c)(5) below, then Displaced Tenant shall be deemed to have elected to receive the permanent relocation fee. For Displaced Tenants electing (or deemed to have elected) to receive the permanent relocation fee, Developer shall comply with the permanent relocation fee requirements in SMMC ch. 4.36. Upon the election of a Displaced Tenant to be temporarily relocated in accordance with Section
2.7.1(c)(5), Developer may provide City with documentation of such election and draft escrow instructions authorizing return of the applicable permanent relocation fee amount to Developer and City shall provide written approval, within 10 days of Developer’s request, for such funds to be returned to the Developer.
5) Displaced Tenant Temporary Relocation.
Notwithstanding the requirements in SMMC ch. 4.36 related to permanent physical relocation, for Displaced Tenant(s) electing to be temporarily relocated, Developer shall instead:
(i) Provide temporary housing that is reasonably
comparable in size, number of bedrooms and bathrooms, accessibility, location (which may be in either Santa Monica or Los Angeles), proximity to services and institutions upon which the displaced tenant depends, and amenities, including the allowance for pets should the tenant have pets until the earlier (“Temporary Comparable Housing”) of (x) Certificate of Occupancy for the Project is issued and the Replacement Units are ready for occupancy, (y) termination of this Agreement, or (z) Existing Tenant moves out of the Temporary Comparable Housing. For the avoidance of doubt, the Existing Unit’s proximity to the ocean, location within the building and/or views is not a comparability factor for the “Comparable Housing”. (ii) If an Existing Tenant elects to relocate to the
Temporary Comparable Housing from its Existing Unit, Developer shall pay customary and reasonable moving costs as further defined in SMMC Section 4.36.100(d). (iii) If an Existing Tenant elects to relocate to
Temporary Comparable Housing from its Existing Unit, then the following shall apply: (x) upon vacation of the Existing Unit by the Existing Tenant, any lease or rental agreement for the Existing Unit shall be deemed terminated and neither Developer nor Tenant shall have any further rights, duties or obligations thereunder, or with respect to the Existing Unit, except those that accrued prior to the vacation date, (y) Existing Tenant shall execute a new lease or rental agreement with the owner of the Temporary Comparable Housing and Developer shall have no rights, duties or obligations under such lease or rental agreement, or to the Temporary Comparable Housing, and (z) notwithstanding the requirement in SMMC Section 4.36.010 that the Comparable Housing be reasonably comparable in price, Developer shall pay to the Existing Tenant each month the amount by which the monthly rent for the Temporary Comparable 24 Housing exceeds the legal rent, plus allowed Annual General Adjustments pursuant to RCL Section 1805, for Tenant’s Existing Unit. Developer’s obligation pursuant to this Section
2.7.1(c)(5)(iii) to pay the monthly rent differential to the Existing Tenant shall continue until the earlier of (xx) Certificate of Occupancy for the Project is issued and the Replacement Units are ready for occupancy, (yy) termination of this Agreement, or (zz) Existing Tenant moves out of the Temporary Comparable Housing.
(iv) If an Existing Tenant exercises its right to occupy a Replacement Unit in accordance with Section 2.7.1(c)(6) below, Developer shall pay the actual costs of relocating a Displaced Tenant’s personal property from the Temporary Comparable Housing to a Replacement Unit based on an actual move by a professional moving company. 6) Right of First Refusal Granted to Displaced Tenants.
After the Existing Units are demolished and prior to issuance of the certificates of occupancy for the Second Street Building(s) and/or Santa Monica Boulevard Building, Developer shall first offer the Replacement Units to the Displaced Tenants of the Existing Units, as follows:
(i) Concurrent with its obligation to notify tenants of their relocation rights under state or local laws upon initiation of withdrawal of the Existing Units from the rental market, Developer shall provide written notice to the Displaced Tenants of each Displaced Tenant’s right of first refusal to occupy a Price-Restricted Replacement Unit, Affordable Replacement Unit, or Affordable Housing Unit (defined in Section 2.7.2, below) as follows:
(x) One of the Price-Restricted Replacement
Units at a maximum allowable rent that is the rent in effect at the time of the Displaced Tenant’s displacement plus allowed Annual General Adjustments pursuant to RCL Section 1805, upon issuance of a certificate of occupancy for the Second Street Building(s) and/or Santa Monica Boulevard Building, as applicable, or
(y) If the Displaced Tenant income qualifies for
an Affordable Replacement Unit or an Affordable Housing Unit, as applicable, at a maximum allowable rent that is the lower of rent in effect at the time of the Displaced Tenant’s displacement plus allowed Annual General Adjustments pursuant to RCL Section 1805 or the deed restricted rent for the applicable income category of the Displaced Tenant, upon issuance of a certificate of occupancy for the Second Street Building(s) and/or Santa Monica Boulevard Building, as applicable. Notwithstanding the foregoing, if more Displaced Tenants incomequalify for a particular Affordable Replacement Unit or Affordable Housing Unit income level type (i.e. 30%, 50%, 80% or Moderate Income) than are provided in the Project, Developer shall not be required to provide additional Affordable Housing Units and shall instead provide such Existing Tenant with a Price-Restricted Replacement Unit. (ii) No earlier than eighteen (18) months and no later
than twelve (12) months prior to the issuance of the certificates of occupancy for the Second Street Building(s) and/or Santa Monica Boulevard Building, Developer shall make a written offer to each Displaced Tenant (the “Offer”) to occupy a Price-Restricted Replacement Unit, Affordable Replacement Unit, or Affordable Housing Unit as applicable. 25 (iii) Each Displaced Tenant shall have no less than sixty (60) days to provide Developer with written notice of intent to exercise the right to occupy a Price-Restricted Replacement Unit, Affordable Replacement Unit or Affordable Housing Unit, as applicable. Upon expiration of the notice period, if Displaced Tenant has not exercised its right to occupy a Price-Restricted Replacement Unit, Affordable Replacement Unit or Affordable Housing Unit, as applicable, Developer shall have no further obligations to such Displaced Tenant, including, without limitation, payment of any rent differential for Displaced Tenant’s Temporary Comparable Housing pursuant to Section 2.7.1(c)(5)(iii)(z) above. (iv) Each Price-Restricted Replacement Unit,
Affordable Replacement Unit, or Affordable Housing Unit, as applicable, must be reasonably comparable only in the total floor area (up to a 15% difference), number of bedrooms and bathrooms, and amenities inside the unit as Displaced Tenant’s prior Existing Unit. The Existing Unit’s other features, including without limitation, proximity to the ocean, floor level, location within the building, and/or views are not comparability factors for a Price-Restricted Replacement Unit, Affordable Replacement Unit or Affordable Housing Unit. (v) Developer shall provide written documentation of
the Offer made to each Displaced Tenant to the reasonable satisfaction of the Director of Community Development, including, at a minimum:
aa. the names and contact information of
Displaced Tenants, which information shall remain confidential to the extent required by law; bb. copies of the notices of the rights of first
refusal provided to the Displaced Tenants;
cc. copies of the Offer made to each Displaced
Tenant; and
dd. notice of the Price-Restricted Replacement
Units to the Rent Control Board.
(vi) Notwithstanding anything to the contrary in this
Section 2.7.1(c)(4)-(6), any Displaced Tenant may negotiate a separate temporary or permanent relocation package with Developer in lieu of the benefits to be provided pursuant to this Section
2.7.1(c)(4)-(6); provided the requirements of SMMC Section 4.56.050, or any subsequently adopted provisions addressing tenant voluntary buy out agreements, are met. (d) In accordance SMMC Section 9.64.120, City agrees that any deedrestricted affordable units provided by Developer to satisfy the terms of a Removal Permit pursuant to Section 2.7.1(b) or the three (3) Affordable Replacement Units required in Section
2.7.1(c) above, as applicable, may be used to comply with the requirements in Section 2.7.2 or
2.8.1, including counting toward the twenty-five (25) Affordable Housing Units required therein. 26 2.7.2 Deed-Restricted Affordable Housing Units. In addition to the PriceRestricted Replacement Units required by Section 2.7.1, Developer shall deed restrict a total of twenty (20) of the Project’s Rental Housing Units (“Affordable Housing Units”), as follows:
(a) The Affordable Housing Units shall be located in the Second Street Building(s) and/or Santa Monica Boulevard Building and shall consist of four (4) units available to and occupied by 30% Income Households, four (4) units available to and occupied by 50% Income Households, six (6) units available to and occupied by 80% Income Households (three (3) of which may be satisfied by the three (3) Affordable Replacement Units), and six (6) units available to and occupied by Moderate Income Households; (b) The Affordable Housing Units shall consist of three (3) studio units, eight (8) one-bedroom units and nine (9) two-bedroom units; (c) Except for the Affordable Replacement Units, the Affordable Housing Units shall comply with the minimum unit sizes in SMMC Section 9.64.050(E) and the minimum unit size requirements in SMMC Section 9.10.070(C)(1)(a)(iv) shall not apply to the Project;
(d) The term of the deed restriction for the Affordable Housing Units (“Affordable Housing Deed Restriction”) shall be ninety-nine (99) years from issuance of a certificate of occupancy for the Second Street Building(s) and/or Santa Monica Boulevard Building, as applicable to where the Affordable Housing Units are located in each of the aforementioned buildings. Notwithstanding the foregoing, such deed restriction shall automatically terminate if the Second Street Building(s) and/or Santa Monica Boulevard Building, as applicable, is damaged or destroyed and cannot be rebuilt in accordance with the development standards permitted in this Agreement. The terms and conditions of the deed restriction shall be substantially similar to the form of deed restriction attached hereto as Exhibit “P” (Form of Deed Restriction for Affordable Housing Units), but may be updated to reflect the form approved by the Director of Community Services Department and City Attorney to satisfy the standard Affordable Housing Production Program deed restriction requirements then in effect at the time that the deed restriction is recorded. The Affordable Housing Deed Restriction shall be recorded against the Ocean Avenue Parcel and the Second Street Parcel prior to issuance of the first building permit for the Project. The recording shall be made in the Official Records of the County of Los Angeles.
(e) All Affordable Housing Units shall be subject to SMMC Chapter
9.64, the Affordable Housing Production Program, except as expressly modified in this Agreement.
(f) Any Displaced Tenant whose income qualifies them to occupy an Affordable Housing Unit shall have first priority to occupy an Affordable Housing Unit. (g) The affordable housing requirements included in this Section 2.7.2 fully-satisfy the Project’s affordable housing requirements in SMMC Chapter 9.64 (the City’s Affordable Housing Production Program), to the extent that they are applicable to the Project. 27 2.7.3 Desirable Mix of Uses in the Downtown. This Project includes a desirable mix of uses, including hotel uses, replacement rental housing units, new market rate and affordable rental housing with varying unit types and sizes, cultural uses and ground floor pedestrian-oriented uses including publicly-accessible open space.
2.7.4 Economic and Fiscal Benefits. The Project will contribute to the economic health and well-being of Santa Monica by (i) significantly increasing City tax revenues generated by the Project Site, including transient occupancy taxes, sales taxes, property taxes, business license taxes, parking tax, and utility user’s taxes, and (ii) generating new visitor and resident spending at local businesses, including dining, shopping and entertainment venues.
2.7.5 Aesthetic Enhancement to the Downtown Core. Development of a welldesigned mixed-use development.
2.7.6 Permanent Employment Opportunities. The Project will expand and increase employment opportunities during operation of the Project with redevelopment of retail/restaurant spaces and the addition of the Cultural Uses Campus and a unionized hotel.
2.7.7 Cultural Arts. Developer shall provide for cultural arts and cultural resources in accordance with SMMC Chapter 9.30, which obligation may be satisfied through expenditure of money on preservation of the Project Site’s City-designated landmarks in accordance with SMMC Section 9.30.040(B).
2.7.8 Construction Employment Opportunities. The Project provides significant new design and construction-related employment opportunities.
2.7.9 Developer Contribution for School Facilities. Developer shall provide the Santa Monica-Malibu Unified School District with fees for capital improvements as required by California Government Code § 65995.
2.7.10 Water Conservation Measures. The Project shall include the following water conservation measures, which shall be installed prior to Certificate of Occupancy for the Project. Nothing in this Section 2.7.10 shall preclude the City from applying Subsequent Code Changes permitted in accordance with Section 5.2:
(a) The Project shall achieve Water Neutrality in accordance with SMMC 7.16.050.
(b) The Project shall comply with the Water Efficient Landscape and Irrigation Standards in accordance with SMMC 8.108 Subpart A. (c) Developer shall comply with the City’s water recycling ordinance in effect as of this Agreement’s Effective Date (“2022 Water Recycling Ordinance”), including mandatory use of recycled water for surface irrigation (i.e., landscaping) and/or dual-plumbing applications (i.e., flushing toilets, cooling towers) for all allowable applications specified by Title 22 of California’s Code of Regulations and approved by the Los Angeles County Department of Public Health in accordance with SMMC Section 7.12.170(c). Developer may elect to 28 utilize/comply with any future revision to the 2022 Water Recycling Ordinance, or successor thereto. Recycled water use shall not count as “New Water Demand” within the meaning of SMMC 7.16.050.
(d) Any pool and/or spa shall have a pool cover installed in accordance with SMMC 7.16.020 (c)(2). The cover for any pool must be power-operated, fully automatic, solid track, certified to meet and/or exceed ASTM F1346-91 and be UL listed (U.L. file E52841) for ASTM safety and US electrical standards.
2.7.11 Energy Conservation Measures. The Project shall include the following energy conservation measures which are currently requirements of the SMMC and shall be installed prior to Certificate of Occupancy for the Project. Nothing in this Section 2.7.11 shall preclude the City from applying Subsequent Code Changes permitted in accordance with Section
5.2:
(a) Developer shall comply with SMMC 8.36.030 Energy efficiency and solar photovoltaic requirements—High-rise residential, non-residential, and hotel and motel buildings.
(i) The Title 24 Certificate of Compliance described in Section 10-103 of the 2019 California Energy Code shall be prepared and signed by a Certified Energy Analyst as the Documentation Author.
(ii) Developer shall install a photovoltaic (PV) system with a minimum capacity of two watts per square foot of the building footprint in accordance with SMMC 8.36.030;
(iii) All new all-electric high-rise residential, non-residential, and hotel and motel buildings shall be designed to code established by the 2019 California Energy Code; or
(iv) All new mixed-fuel high-rise residential and hotel and motel buildings shall be designed to use five percent less energy than the allowed energy budget established by the 2019 California Energy Code.
(b) For new pool construction in the Project, if the pool is to be heated, an electric heat pump water heater or a solar thermal system shall be used for such heating in accordance with SMMC 8.106.080, or successor thereto; and (c) The Project shall include the following electric vehicle charging infrastructure in the parking areas of the Subterranean Space in accordance with Section 4.106.4 and 5.106.5.3 of the 2019 CALGreen (Title 24) as amended by SMMC 8.106.110 and 8.106.120 and this Section 2.7.11(c):
(i) EV chargers in ten percent (10%) of the vehicular parking spaces,
29 (ii) Infrastructure to make an additional four and one-half percent (4.5%) vehicular parking spaces EV Ready (breaker, wiring, panel capacity, receptacle and raceways and associated conductors capable of accommodating 208/240-volt dedicated branch circuits),
(iii) Raceways/conduits and associated conductors capable of accommodating 208/240-volt dedicated branch circuits in an additional thirty eight and one-half percent (38.5%) vehicular parking spaces, and
(iv) Developer shall report demand for EV chargers to the City as part of its annual Development Agreement compliance reporting required by Section 10.2. If demand for EV chargers increases beyond the number required in Section 2.7.11(c)(i), then Developer shall first install EV chargers in all or some of the EV ready spaces required by
2.7.11(c)(ii) and then in all or some of the raceway/conduit spaces required by Section
2.7.11(c)(iii) to the extent necessary to accommodate the additional demand. If demand for EV chargers increases beyond this 53% of vehicle spaces, then Developer shall be required to install additional EV chargers to meet the additional demand.
2.7.12 Developer Contribution for Early Childhood Initiatives. Prior to issuance of the Certificate of Occupancy for the Project, Developer shall pay an Early Childhood Initiatives contribution to the City in the amount of One Million Dollars ($1,000,000.00). The City shall utilize this contribution to support early childhood initiatives including but not limited to infant, toddler and pre-school tuition subsidies; family support and parent engagement strategies; home visitation programs; facility and playground improvements and kindergarten readiness models. The City shall deposit such monies into a separate restricted account to be used exclusively for the early childhood initiatives as described above through guidelines to be established by the City. This fee satisfies the project’s requirement to pay a Child Care Linkage Program fee pursuant to SMMC Chapter 9.65.
2.7.13 Transportation Demand Management Plan. Developer shall implement and maintain a Transportation Demand Management Plan (“TDM Plan”) commencing with the issuance of a Certificate of Occupancy as set forth in Exhibit “H”.
2.7.14 Various standard public improvements and fees. Developer shall pay fees and construct public infrastructure improvements pursuant to the terms of this Agreement.
2.8 Community Benefits. Set forth below in this Section 2.8 are the additional community benefits that will be provided by the Project for the Life of the Project, as defined in Section 1.32 of this Agreement, unless specified otherwise in this Agreement.
2.8.1 Community Benefit Affordable Housing Units. In addition to the Affordable Replacement Units required by Section 2.7.1(c)(2), five (5) of the Price-Restricted Replacement Units required by Section 2.7.1(c)(2) shall be deed restricted for Moderate-Income Households in accordance with Section 2.7.2(d) (referenced hereinafter as “Community Benefit Units”) and subject to the following conditions:
(a) Any Displaced Tenant who qualifies as a Moderate-Income Household shall have the first priority to occupy a Community Benefit Unit, and the maximum 30 allowable rent shall be the lower of rent in effect at the time of the Displaced Tenant’s displacement plus allowed Annual General Adjustments pursuant to RCL Section 1805 or the deed restricted rent for a Moderate-Income Household;
(b) A Displaced Tenant with household income greater than the income limits for a Moderate-Income Household shall have second priority to occupy a Community Benefit Unit, as follows:
i. Notwithstanding the deed restriction, the Developer and Displaced Tenant shall be subject to the rights and obligations of any Displaced Tenant in a Price-Restricted Unit, as set forth in Section 2.7.1.
ii. After vacancy by the Displaced Tenant or if the
Community Benefit Unit is never occupied by a Displaced Tenant, the Community Benefit Unit shall be subject to all requirements for a Moderate-Income Household, as set forth in the deedrestriction. (c) Except as provided in this Section 2.8.1, the Community Benefit Units shall satisfy all of the requirements for the Replacement Affordable Units. (d) City and Developer each understands, acknowledges, and agrees that the total tally of Price-Restricted Replacement Units, Affordable Replacement Units, Affordable Housing Units, and Community Benefit Units, as required by this Agreement, shall be: eleven (11) Price-Restricted Replacement Units; plus twenty-five (25) deed-restricted affordable units (four (4) available to and occupied by 30% Income Households, four (4) available to and occupied by 50% Income Households, six (6) available to and occupied by 30% Income Households, four (4) available to and occupied by 80% Income Households, and eleven (11) available to and occupied by Moderate Income).
2.8.2 Historic Preservation. The relocation and rehabilitation work as to the two City-designated Landmark buildings, Queen Anne Landmark and Spanish Colonial Revival Landmark, will ensure that they retain their historical significance as historic resources while being incorporated into the Project’s Cultural Uses Campus for public enjoyment. (a) Queen Anne Landmark. The Queen Anne Landmark currently located at 1333 Ocean Avenue shall be rehabilitated and restored after its repositioning on site as part of the Project’s Cultural Uses Campus. The Queen Anne Landmark was designated as a City Landmark on May 14, 2001. (LC-01LM001.) This designation does not include the building’s interior.
Significance. Originally constructed in 1906, the one-time home is one of the last surviving examples of early residential development on Ocean Avenue in Santa Monica. The Queen Anne Landmark exemplifies treasured cultural and architectural aspects of the City’s early residential settlement; its remaining architectural features and characteristics are considered valuable to the study of the Queen Anne architectural style from the turn of the twentieth century; and its continued presence on Ocean Avenue, together with the City- 31 designated Landmark Gussie Moran House, serve to illustrate what Ocean Avenue was once like.
Character-Defining Features. The Queen Anne Landmark
incorporates many of the trademarks of its type, including horizontal wood clapboard cladding and wood shingle siding, large side dormers, a large front bay window, a recessed main entry with monumental wide door, recessed wood-frame sash windows, and a steeply pitched multigable roof with boxed eaves, exposed rafter tails, dentils, and wide trim band at cornice lines.
The original two-story wood shingled round tower is another classic feature associated with this idiom; however, character-defining features that are no longer extant include the full height round tower with widow’s walk, an open front entry porch, first floor porch column capitals, gable ornamentation, brick chimney, and once full length second floor porch, as documented in historic photographs.
Staged Moving. The process for moving the Queen Anne
Landmark during Project construction shall comply with professional standards and guidelines identified in the National Park Service’s publication entitled, Moving Historic Buildings (1979).
The move shall include stabilization before temporary relocation on the Project Site followed by permanent placement on a new foundation once the structural integrity of the return is assured.
Upon its return, the Queen Anne Landmark shall continue to face Ocean Avenue and be located south of its current location as shown on the Project Plans. In its new location, the Queen Anne Landmark shall retain its compass orientation, a close approximation of its current setback from Ocean Avenue, and its proximate relationship to finished grade through continued use of a raised foundation. Protecting the safety and integrity of the Queen Anne Landmark shall be of utmost importance during the relocation and Project excavation.
Rehabilitation. The Queen Anne Landmark shall be rehabilitated and restored after relocation. This rehabilitation would preserve, repair (as necessary), and restore important exterior character-defining features including restoring the corner tower to its original height with its widow’s walk, restoring the second floor porch on the west elevation to its full length, restoring the front gable ornamentation, restoring the brick chimney above the roof plane to its original height, and replacing the current contemporary asphalt shingle roof with flame-retardant wood shingles. Such restoration and reconstruction shall be based on historic photograph documentation and physical evidence as shall be presented to the Landmarks Commission. As shown on the Project Plans, various incompatible additions shall be removed, including the unenclosed catwalk and staircase connecting Queen Anne Landmark and the 1333 Ocean Avenue Rear Structure. The interior of the Queen Anne Landmark would be modified for adaptive use as an integral part of the Cultural Uses Campus. On the north and east elevations it is anticipated that a new opening at the first floor would be established for integration into the Cultural Uses Campus, subject to review and approval by the Landmarks Commission (or City Council on appeal). The south elevation has been substantially modified over the years, including the addition of non-original dormers at the second floor which are targeted to be removed for reconstruction of the original side-gable on this elevation, with a single dormer. A contemporary two-story addition shall be constructed at the building’s north and east elevations using a hyphen element for the connection between the Queen Anne Landmark and the contemporary new building. All rehabilitation and restoration work shall be subject to a certificate of appropriateness process and shall be guided by a qualified historic preservation 32 professional with at least seven (7) years of relevant experience who meets the Secretary of the Interior’s Professional Qualification Standards for History, Architectural History, and/or Architecture pursuant to 36 C.F.R. Part 61, App. A. Notwithstanding the foregoing, if evidence of additional character-defining features is discovered during the course of rehabilitation that the qualified historic preservation professional determines potentially warrants additional restoration work not previously anticipated to the Queen Anne Landmark to restore it to its 1906 date of construction and such restoration would not be in conflict with the rehabilitation work approved by the Certificate of Appropriateness to adaptively use the Queen Anne Landmark as part of the Cultural Uses Campus, then that discovery shall be identified to the City Landmarks Commission Planning Staff Liaison (Historic Preservation Officer) to consider whether such further restoration can be administratively approved by the Historic Preservation Officer as a minor modification to the Certificate of Appropriateness. If such restoration work can be approved administratively without causing delays to the construction schedule and is approved, then such further restoration work shall be completed. Alternatively, where any such in situ discovery does not warrant actual restoration, this newly discovered information shall, at a minimum, be added to the archival recordation documentation required by Exhibit "D", Section A, MM-CR-1.
Retrofitting. Rehabilitation of the Queen Anne Landmark is also expected to include seismic and structural retrofitting, handicap accessibility improvements, firelife safety improvements, and upgrades to modernize mechanical/electrical/plumbing systems and equipment. All rehabilitation work shall conform with the Secretary of the Interior’s Standards for the Treatment of Historic Properties and the California Historical Building Code.
Certificate of Appropriateness Process. Rehabilitation, restoration, moving, preservation protection measures and relocation of the Queen Anne Landmark shall be subject to a Certificate of Appropriateness as required by Article 6 of this Agreement.
Benefits. Rehabilitation of the Queen Anne Landmark in
accordance with the required Certificate of Appropriateness would: (1) make the building safer in light of today's building codes, (2) rehabilitate and restore its character-defining features, (3) make the building more accessible to persons with disabilities, (4) continue to reinforce the legacy of buildings that were once constructed as early residences on Ocean Avenue, (5) repurpose the building as part of a Cultural Uses Campus and (6) ensure it endures for future generations.
(b) Spanish Colonial Revival Landmark. The Spanish Colonial Revival Landmark currently located at 1337 Ocean Avenue shall be rehabilitated and restored after its repositioning on site as part of the Project’s Cultural Uses Campus. The Spanish Colonial Revival Landmark was designated as a City Landmark on July 12, 2004. (LC-04-LM005.) This designation does not include the building’s interior.
Significance. Spanish Colonial Revival architecture was especially popular in Santa Monica during the 1920s and 1930s and was an important influence on the architectural history and character of the City. Originally constructed in 1926, the Spanish Colonial Revival Landmark is now one of the few remaining historic buildings along Ocean Avenue of the Spanish Colonial Revival style. This building was originally constructed as a 33 mixed-use building that included four apartment units above a ground floor commercial space, before eventually being converted entirely to commercial use. This building therefore embodies the evolutionary urban development of the City’s architectural history, particularly along Ocean Avenue; additionally, its architectural design and composition are valuable to the study of this early period of Santa Monica’s development; and its presence on Ocean Avenue across from Palisades Park is noteworthy, particularly given its instructive proximity to two other Citydesignated Landmarks, the Gussie Moran House and the Queen Anne Landmark.
Character-Defining Features. This Spanish Colonial Revival Landmark retains the essential physical features that constitute its style of architecture including stuccoed exterior walls, red clay barrel tile shed, roofs and parapet coping, wrought iron balconettes, arched shaped window and door openings, and wood-framed French doors; however, character-defining features that are no longer extant include the cast stone Churrigueresque-inspired decorative surround with flanking spiral engaged columns at the west elevation entrance to the building and missing decorative sconces, as documented in historic photographs.
Moving and Relocation. The process for moving the Spanish Colonial Revival Landmark during Project construction shall comply with professional standards and guidelines identified in the National Park Service’s publication entitled, Moving Historic Buildings (1979). The move shall include stabilization before temporary relocation on the Project Site followed by permanent placement on a new foundation once the structural integrity of the new location is assured. The relocated Spanish Colonial Revival Landmark shall continue to face Ocean Avenue at the conclusion of its relocation and be located north of its current location and north of the Queen Anne Landmark, as shown on the Project Plans. In this new location, the Spanish Colonial Revival Landmark shall retain its current compass orientation, its minimal setback from Ocean Avenue, and its proximate relationship to finished grade. Protecting the safety and integrity of the Spanish Colonial Revival Landmark shall be of utmost importance during the relocation and Project excavation.
Rehabilitation. The Spanish Colonial Revival Landmark shall be rehabilitated and restored after relocation. This rehabilitation would preserve, repair (as necessary), and restore important exterior character-defining features including reconstructing the cast stone Churrigueresque-inspired decorative surround with flanking spiral engaged columns at the west elevation entrance to the building. The decorative sconces would also be reconstructed. Such restoration and reconstruction shall be based on historic photograph documentation and physical evidence as shall be presented to the Landmarks Commission. The vision is for the building’s west elevation to be restored to its period of significance as determined by the Landmarks Commission. As shown on the Project Plans, various incompatible additions shall be removed, including the rear addition and the 1337 Ocean Avenue Rear Structure. The east and south elevations have been previously altered and a two-story addition shall be constructed in this location using a hyphen element for the connection between the Spanish Colonial Revival Landmark and the contemporary new construction. All rehabilitation and restoration work shall be subject to a certificate of appropriateness process and shall be guided by a qualified historic preservation professional with at least seven (7) years of relevant experience who satisfies the Secretary of the Interior’s Professional Qualification Standards for History, Architectural History, and/or Architecture pursuant to 36 C.F.R. Part 61, App. A. 34 Notwithstanding the foregoing, if evidence of additional character-defining features is discovered during the course of rehabilitation that the qualified historic preservation professional determines potentially warrants additional restoration work not previously anticipated to the Spanish Colonial Revival Landmark to restore it to its 1926 date of construction and such restoration would not be in conflict with the rehabilitation work approved by the Certificate of Appropriateness to adaptively use the Spanish Colonial Revival Landmark as part of the Cultural Uses Campus, then that discovery shall be identified to the City’s Historic Preservation Officer to consider whether such further restoration can be administratively approved by the Historic Preservation Officer as a minor modification to the Certificate of Appropriateness. If such restoration work can be approved administratively without causing delays to the construction schedule and is approved, then such further restoration work shall be completed. Alternatively, where any such in situ discovery does not warrant actual restoration, this newly discovered information shall, at a minimum, be added to the archival recordation documentation required by Exhibit "D", Section A, MM-CR-1.
Retrofitting. Rehabilitation of the Spanish Colonial Revival Landmark is expected to include seismic and structural retrofitting, handicap accessibility improvements, fire-life safety improvements, and upgrades to modernize mechanical/electrical/plumbing systems and equipment. All rehabilitation work shall be performed in conformance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties and the California Historical Building Code.
Certificate of Appropriateness Process. Rehabilitation, restoration, moving, preservation protection measures and relocation of the Spanish Colonial Revival Landmark shall be subject to a Certificate of Appropriateness as required by Article 6 of this Agreement.
Benefits. Rehabilitation of the Spanish Colonial Revival Landmark in accordance with the required Certificate of Appropriateness would: (1) make the building safer in light of today's building codes, (2) rehabilitate and restore its character-defining features, (3) make the building more accessible to persons with disabilities, (4) continue to reinforce the legacy of buildings that were constructed historically on Ocean Avenue during early stages of Santa Monica’s development, (5) repurpose the building as part of the Cultural Uses Campus and (6) ensure that the Spanish Colonial Revival Landmark endures for future generations. (c) HABS Archival Documentation. Prior to issuance of any building permits for demolition, abatement, grading, excavation, relocation or rehabilitation directly affecting either the Queen Anne Landmark or the Spanish Colonial Revival Landmark, Developer shall first have obtained and submitted to the City Planning Division a Historic American Buildings Survey (“HABS”) Level III of the existing conditions of the two Citydesignated Landmarks. (d) Preservation-Protection Plan Together with Developer’s application(s) for one or more certificates of appropriateness as to the relocation and rehabilitation of the Queen Anne Landmark and the Spanish Colonial Revival Landmark, Developer’s historic preservation professional shall prepare and submit a Preservation Protection Plan to support conformance with applicable criteria from the Secretary of the Interior’s 35 Standards for the Treatment of Historic Properties and Moving Historic Buildings (NPS, 1979) as to the steps that will be followed during the course of moving and relocating the Landmark buildings. In addition to the protection of the Landmark buildings during excavation and construction of the Project, the Preservation Protection Plan shall also include a discussion and analysis of the preservation, rehabilitation and restoration of the exteriors of the Landmark buildings and their character-defining features, as well as the points of connection between the Landmark buildings and the new construction. The Preservation Protection Plan shall also include a discussion and analysis of the criteria specified in Santa Monica Municipal Code Sections 9.56.140(A) and (C) for issuance of the requisite Certificate(s) of Appropriateness.
Upon issuance of the Project’s first demolition, grading, excavation, shoring or comprehensive building permit, the Developer shall engage a qualified historic preservation architect, structural engineer, arborist and general contractor, subject to City Staff approval of their respective credentials, to execute work in compliance with the Preservation Protection Plan. The final Preservation Protection Plan may be modified from time to time as necessary and appropriate subject to approval by the Landmarks Commission or the Landmarks Commission Secretary in accordance with Article 6.
(e) Performance Bond. Prior to issuance of a building permit that includes the scope of work pertaining to the Queen Anne Landmark and the Spanish Colonial Revival Landmark further described in Exhibit “F” (“Bonded Scope of Preservation Work”), Developer shall provide the City with a performance bond (the “Bond”) for completion of the Bonded Scope of Preservation Work. The City shall be named as dual obligee on the Bond. The Bond shall be duly executed by a responsible corporate surety authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.
Further, the Bond shall be signed by both Developer and surety and properly notarized on the City’s forms or such other forms as required by City. The Bond amount shall be 100 percent of the total estimated cost of the Bonded Scope of Preservation Work, which shall be determined by the City’s Building Official at the time of issuance of the building permit that includes the Bonded Scope of Preservation Work. The form of the Bond shall be substantially in the form referenced in Government Code Section 66499.1. The form of the Bond and credit rating of the surety shall be reasonably approved by the City Attorney; provided, however that the credit rating shall not be required to be greater than an “A” rating. The obligation to provide the Bond shall automatically terminate, with no further action required by the City, upon the earlier to occur of (i) issuance of a Certificate of Occupancy for both the Queen Anne Landmark and the Spanish Colonial Revival Landmark or the Project as a whole, or (ii) a determination by the City’s Building Official that the Bonded Scope of Preservation Work has been completed. The Developer’s failure to complete the Bonded Scope of Preservation Work before the expiration of the building permit for the Bonded Scope of Preservation Work within the timeframe allowed under the SMMC (including any extensions that may be granted) shall constitute a Default under Article 11 of this Agreement. The completion of the Bonded Scope of Preservation Work shall be determined by the City’s Building Official. In the event of such Default, in addition to any remedies authorized under Article 11 of this Agreement, City may exercise its remedies as dual obligee on the Bond to cure such default.
36 2.8.3 Operating Parameters for the Cultural Uses Campus. (a) Except as provided herein, Developer shall continuously operate and maintain the Cultural Uses Campus in accordance with this Section 2.8.3 for the Life of the Project as defined in Section 1.32.
(b) The Cultural Uses Campus shall be a minimum of 33,725 square feet of Floor Area, including a minimum of 18,550 square feet of Floor Area in the Cultural Uses Building that is open to the public as set forth in subparagraph (c), below, and devoted to Cultural Facilities uses, excluding Cultural Accessory Uses, office space, and/or archive/storage space. Notwithstanding the foregoing, if the Floor Area of the Cultural Uses Campus is reduced below the minimum requirements specified in this Section 2.8.3 by either (a) the Landmarks Commission (or City Council on appeal) as part of the Design Review process to be performed in accordance with Article 6 or (b) the Coastal Commission as part of the coastal development permit process for this Project, then the Floor Area otherwise required by this Section 2.8.3 shall automatically be lowered to match the resulting Floor Area allowed by the corresponding Certificate of Appropriateness or Coastal Development Permit(s), whichever is smaller. (c) The Cultural Uses Campus shall generally be open to the public a minimum of seven (7) hours per day for a minimum of six (6) days per week. Notwithstanding the foregoing, Developer may temporarily close the Cultural Uses Campus (or portions thereof) (i) if Developer is making, with reasonable diligence, maintenance/repairs/restorations; (ii) for closures necessitated by changing exhibits; (iii) due to public safety needs or force majeure events; and (iv) Developer may temporarily close portions of the Cultural Uses Campus for private events consistent with operations of other Cultural Facilities in Los Angeles County as long as Developer complies with the provisions of this Section 2.8.3. (d) The Parties acknowledge that there may be an interruption in service from time to time if there is a change in the operator of the Cultural Uses Campus.
Notwithstanding Article 11 of this Agreement, any disruption in service due to a change in the operator of the Cultural Uses Campus shall not constitute a Default by Developer so long as Developer is, in good faith, actively pursuing a new operator of the Cultural Uses Campus. (e) If a change in the operator of the Cultural Uses Campus causes an interruption in services that exceeds six (6) months, (i) Developer shall be obligated to submit a written report and verification to the City outlining the steps being taken to identify a new Cultural Uses Campus operator and schedule of performance for resuming service to the public; (ii) Developer shall be required to offer incentives to prospective operators that include, but are not limited to, offering subsidized rent for the Cultural Uses Campus; and (iii) Developer shall provide a written status update report to the City every two months until a new operator is retained and a schedule of performance for resuming service is established. Interruption in service due to remodeling to facilitate a change in operator shall not count toward the six-month time period in this Section 2.8.3(g) so long as building permits are active in accordance with SMMC Ch. 8.08. However, if the building permit expires before the remodeling work is completed, the six-month period shall relate back and commence with the cessation of use. 37 Following receipt of one or more status update reports, the City Manager may request to meet and confer with Developer. After such meeting, the City Manager may (a) require the Developer to provide additional incentives to prospective operators of the Cultural Uses Campus (e.g. covering the cost of remodeling/tenant improvement work, assisting with fundraising/securing sponsorships, providing rent reductions/abatements, etc.) and/or (b) determine whether an alternative community benefit shall be required on an interim basis for the remainder of the anticipated closure of the Cultural Uses Campus (e.g. pop-up community programming to be held at the Cultural Uses Campus and/or reasonable subsidy for community programming or community access to other Cultural Facilities during the remainder of the anticipated closure of the Cultural Uses Campus).
(f) Developer understands, acknowledges and agrees, as follows:
(i) Prior to the City Council’s consideration and approval of this Agreement, Developer provided development and operating pro forma numbers to City representatives for the Cultural Facilities, which indicates a deficit of approximately $1.85 million dollars per year to operate the Cultural Facilities; (ii) Developer has represented to City that, notwithstanding the annual operating deficit from the Cultural Facilities, Developer will use the income generated from other uses within the Project (i.e., hotel, residential, retail) if necessary to subsidize the Cultural Facilities. Prior to any transfer of the Project Site in accordance with Section 13.1 of this Agreement, the Property Transferee (as defined in Section 13.1.4) shall affirm its/their obligation to comply with this subsection (ii) in the Assumption Agreement required by Section 13.3 of this Agreement;
(iii) Therefore, under no circumstances shall the Developer’s failure to subsidize the annual operating deficit constitute an Excusable Delay unless and except to the extent that inability to subsidize the Cultural Facilities is directly associated with war, insurrection, walk-outs, riots, acts of terrorism, floods, pandemic, earthquakes, fires, casualties, acts of God, Severe Economic Shock or similar grounds beyond the control of Developer. (iv) Nothing in this subparagraph (f) precludes Developer from obtaining charitable donations or other income/revenue streams to support the Cultural Facilities and offset any operating deficit.
(g) The Cultural Uses Campus shall be designed to attract and exhibit works of local, international, established and emerging artists, including architects, and implement world-class exhibitions and programs meeting high professional standards in the museum or similar Cultural Facilities field. For a minimum of fifteen (15) years from the issuance of the Project’s Certificate of Occupancy, pieces from the archives of Frank O. Gehry shall be shown at one or more permanent or rotating exhibit(s) at the Cultural Uses Campus. (h) Developer shall have the discretion to determine the inaugural structure/model for governance and operations of the Cultural Uses Campus pursuant to Developer’s stated commitment set forth in Section 2.8.3(h) with good faith consideration given to selecting an exemplary organization(s) with the demonstrated experience, knowledge, and 38 expertise to consistently provide world-class exhibitions and programs meeting high professional standards in the museum or similar Cultural Facilities field, and to successfully operate in accordance with a fiscally-sustainable business and development plan. This may include, but not be limited to, selection of a mission-driven/public benefit non-profit organization or commercial entity to operate the Cultural Uses Campus. Any subsequent change of the primary Cultural Facilities type (e.g., from a museum to a library) shall require Developer to obtain City Manager approval of the structure/model for governance and operations for the new Cultural Facility that is part of the Cultural Uses Campus.
(i) Developer shall employ a highly skilled and qualified Cultural Uses Campus Director and professional curatorial, education and programming, technical, and security staff, comparable in training and qualifications to the staff employed for such purposes at other similarly-sized private museums or Cultural Facilities, and otherwise meeting high professional standards in the museum or similar Cultural Facilities field. (j) Developer shall prepare an Education and Community
Programming Plan (“Programming Plan”) that includes (i) a description of the Programming Plan’s primary components/activities that provide high quality and diverse opportunities for education and engagement with the community; and (ii) the process, with specific performance milestones, by which educational and community programming will be developed and implemented for the Cultural Uses Campus. More specifically, the Programming Plan must address the following:
i. How the Programming Plan aligns with the mission of the Cultural Uses Campus, including Developer’s stated commitment to attract and exhibit works of local, international, established and emerging artists, including architects. ii. How community, educator, and other stakeholder
engagement will be conducted (e.g. community surveys, consultation with DTSM Inc. and youth-serving organizations, etc.), with specific performance milestones, to inform the type and content of programming to be held at the Cultural Uses Campus. iii. How the Programming Plan demonstrates Developer’s
stated commitment to youth education and creating opportunities for higher education students for research and education and incorporates the minimum requirements for Public Schools and Non-Profit Access as set forth in this Section 2.8.3.
iv. Prior to issuance of a Certificate of Occupancy for final building permit signoff for the interior (a/k/a tenant improvement) work for the Cultural Uses Campus, the inaugural Education and Community Programming Plan shall be subject to review and approval by the City Manager, or his or her designee, regarding the content and implementation of the Programming Plan. Subsequent changes to the Programming Plan shall be allowed pursuant to the good faith curatorial discretion of the Cultural Uses Campus Director or other associated professional staff. The City Manager, or his or her designee, shall only review and approve changes and/or a new Programming Plan following a change in Cultural Uses Campus operator or change in the type of Cultural Facility pursuant to Section 2.8.3(h). 39 (k) Developer shall offer to each of the public elementary, middle, and high schools in Santa Monica and Santa Monica College at least once per year that it will provide a field trip opportunity to the Cultural Uses Campus for a subset of each school’s students and associated staff, based on each school’s recommendation and taking into consideration any capacity restrictions at the Cultural Uses Campus, including transportation to/from the Cultural Uses Campus for the students and associated staff, with both the transportation and entry to the Cultural Uses Campus provided by Developer at no charge. (l) At least four (4) times per year (e.g., quarterly), Developer shall offer to a non-profit organization in Santa Monica that provides after school programming for underrepresented youth a field trip opportunity to the Cultural Uses Campus for a subset of the non-profit organization’s youth and associated staff, based on each organization’s recommendation and taking into consideration any capacity restrictions at the Cultural Uses Campus, including transportation to/from the Cultural Uses Campus for the youth and staff, with both the transportation and entry to the Cultural Uses Campus provided by Developer at no charge.
(m) If there is an entry/admission fee to the Cultural Uses Campus, (i) there shall be a discounted rate for students/youth and all Santa Monica residents, which may be managed through a reservation system, and (ii) there shall be one (1) day per month when the entry/admission fee is waived for Santa Monica residents (i.e. “free day” for residents) subject to any capacity restrictions at the Cultural Uses Campus.
(n) Whenever this Section 2.8.3 requires City Manager review and approval, such review and approval shall be undertaken in good faith and with due diligence and shall not be unreasonably withheld, conditioned or delayed.
2.8.4 Publicly Accessible Open Space. Prior to Certificate of Occupancy for the Project, Developer shall establish the publicly-accessible open space that is identified in Exhibit “G” of this Agreement, including the Publicly-Accessible Observation Deck shown on Exhibit “G”, in accordance with the requirements in this Section 2.8.4 (“Publicly-Accessible Open Space”).
(a) The Publicly-Accessible Open Space shall be approximately 16,800 square feet (12,000 square feet at the ground level and 4,800 square feet at the PubliclyAccessible Observation Deck), as shown on Exhibit “G”. (b) The Publicly-Accessible Open Space shall be owned, operated and maintained by Developer at a maintenance standard equivalent to or greater than the standard for the Project’s private ground-level open space.
(c) Except for the Publicly-Accessible Observation Deck, Developer shall generally make the Publicly-Accessible Open Space accessible to the public, without charge, from 8:00 a.m. to 10:00 p.m. daily.
(d) Developer shall make the Publicly-Accessible Observation Deck accessible to the public, at a minimum, from 12:00 p.m. to 8:00 p.m. daily from Memorial Day 40 through Labor Day, and, at a minimum, from 12:00 p.m. to 6:00 p.m. the remainder of the year.
Developer may charge the public up to $1.00 per person (adjusted annually for inflation by the percentage change in the Consumer Price Index commencing on July 1, 2023 and on July 1st of each year thereafter) for access to the Publicly-Accessible Observation Deck so long as one hundred percent (100%) of the net income (i.e., income less expenses) is donated to the Santa Monica Education Foundation, a California nonprofit public benefit corporation, or successor entity. If there is no longer a nonprofit entity that supports Santa Monica public schools in a manner similar to the Santa Monica Education Foundation, then Developer may either (a) select another nonprofit that serves the Santa Monica community to receive the above-described net income or (b) no longer charge the public for access to the Publicly-Accessible Observation Deck.
(e) Notwithstanding the requirement for Developer to generally make the Publicly-Accessible Open Space available to the public as provided in Sections 2.8.4(c) and (d), during these hours Developer may (i) utilize the Publicly-Accessible Open Space for public events and art or cultural installations that are programmed by Developer and open to the public, (ii) place informational wayfinding kiosks and signage (including any directory of the Project’s uses and/or commercial tenants) within the Publicly-Accessible Open Space, (iii) temporarily close the Publicly-Accessible Open Space for Project Site maintenance/repairs or public safety, and (iv) for a maximum of five days per month, temporarily close the Publicly-Accessible Open Space to the general public for private events in the evenings starting at 5:00 p.m provided that the Publicly-Accessible Open Space may not be closed on both Friday and Saturday evenings of the same week.
(f) The public use of the Publicly-Accessible Open Space shall be: (i) consistent with the terms and conditions of this Agreement; (ii) solely for pedestrian access to and passive use of the Publicly-Accessible Open Space by the public, including walking, strolling, viewing and similar activity; (iii) consistent with the rules and regulations contained in the Security Plan described in the following paragraph; and (iv) compatible with Developer’s development, use and enjoyment of the Project as a hotel, retail and residential project. No use other than passive use of the Publicly-Accessible Open Space by the public shall be permitted.
Nothing in this Agreement shall give members of the public the right, without 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 in or on the Publicly-Accessible Open Space, including, without limitation any of the following: (A) cooking, dispensing or preparing food; (B) selling any item or engaging in the solicitation of money, signatures, or other goods or services; (C) sleeping or staying overnight; (D) using sound amplifying equipment; or (E) engaging in any illegal, dangerous, intimidating or other activity that Developer reasonably deems to be inconsistent with other uses on the Publicly-Accessible Open Space and with the continuous, orderly, and safe operation of the Project or with the use of the Publicly-Accessible Open Space 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). The Publicly-Accessible Open Space shall remain Developer’s private property with members of the public permitted to occupy and use the Publicly-Accessible Open Space in a manner consistent with this Agreement. Nothing in this 41 Agreement shall be deemed to mean that the Publicly-Accessible Open Space is a public park or is subject to legal requirements applicable to a public park or other public space. (g) Pursuant to EIR Mitigation Measure DCP MM PS-2, Developer shall prepare and implement a security plan for all of the Project’s common and public spaces, including the Publicly-Accessible Open Space (“Security Plan”). The Security Plan will, among other things, establish rules and regulations for public use of the Publicly-Accessible Open Space and will establish private security patrols for the Property including the Publicly-Accessible Open Space. Developer shall have sole responsibility for the conduct of private security patrols. (h) Prior to or concurrent with the submittal of the Project’s building permit application, Developer shall submit a signage proposal, subject to the approval of the Community Development Director, that clearly identifies the Publicly-Accessible Open Space location(s), hours of availability, and access and use restrictions identified in this Section 2.8.4.
Prior to issuance of a final Certificate of Occupancy, Developer shall install such approved signage in the Publicly-Accessible Open Space.
(i) Nothing in this Agreement is intended to limit the rights of any member of the public to use the Publicly-Accessible Open Space for any purpose which, on private land open to public use during specified hours, is protected by the United States Constitution, the California Constitution or any other applicable federal or California law that overrides the rights granted to Developer under this Agreement with respect to limitations on use of the Publicly-Accessible Open Space.
2.8.5 Sustainable Design Status: LEED® Platinum Requirement. Developer shall design the Project so that, at a minimum, the Project as a whole shall achieve LEED® “Platinum” certification under the LEED® v4 Rating System (“Sustainable Design Status”).
Moreover, Developer shall retain the services of a LEED accredited professional to consult with Developer regarding implementation of sustainable design features for the Project. Developer shall confirm to the City that the design for the Project has achieved the Sustainable Design Status in accordance with the following requirements:
(a) Prior to the submission of plans for Design Review in accordance with Article 6, Developer shall submit a preliminary checklist of anticipated LEED® credits, including proposed water efficiency measures, (that shall be prepared by the LEED® accredited professional) for review by the City, along with a narrative to demonstrate that the Project is likely to achieve the Sustainable Design Status.
(b) Prior to submittal of the plan check application for the Project, 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 Project is likely to achieve the Sustainable Design Status; 2) Retain the services of a third party, independent individual (the “Commissioning Authority”) designated to organize, lead, review, and complete the 42 process of verifying and documenting that the Project and all of its systems and assemblies are planned, designed, installed, and tested to meet the Sustainable Design Status; and 3) Submit a Commissioning Plan which includes the elements specified in California Code of Regulations Title 24, Part 11, Section 5.410.2.3 or any successor thereto.
(c) Prior to issuance of a final Certificate of Occupancy for the Project, the City shall verify (which verification shall not be unreasonably withheld, conditioned or delayed) that the Project has achieved the Sustainable Design Status. (d) Notwithstanding the foregoing, if the City has not verified that the constructed Project has achieved the Sustainable Design Status, the City shall nonetheless issue a temporary Certificate of Occupancy for the Project (assuming that the Project is otherwise entitled to receive a temporary Certificate of Occupancy). The temporary Certificate of Occupancy shall be converted to a final Certificate of Occupancy (assuming that the Project is otherwise entitled to receive a final Certificate of Occupancy) once the constructed Project has achieved the Sustainable Design Status.
(e) If the Project is denied certification for the Sustainable Design Status by the US Green Business Certification Inc., and the Developer has exhausted all administrative remedies and appeals of that denial, then the City shall issue a final Certificate of Occupancy upon the Developer paying a fine in the amount of Four Dollars ($4.00) per square foot of net new Project Floor Area to be used for the City’s Sustainability Programs. This fine may be waived if the City in its sole discretion determines that Developer made a good faith effort to achieve the Sustainable Design Status.
2.8.6 Water Conservation. Project landscaping for all the Buildings shall be irrigated with greywater, stormwater, rainwater, recycled water and/or other approved nonpotable water supply.
2.8.7 Recycled Water Infrastructure Program Improvements. Developer shall:
(a) Prior to issuance of a building permit for the Project, pay to the City its out-of-pocket costs to extend the non-potable water distribution main across Ocean Avenue; and
(b) After City extends the non-potable water distribution main across Ocean Avenue and prior to certificate of occupancy for the Project, extend such main to the Project Site pursuant to specifications provided by City in order to service the Project. After installation, Developer shall have no duty of maintenance or repairs of the non-potable water distribution main.
2.8.8 Urban Runoff. Notwithstanding that the Development Application was deemed complete and pending prior to Ordinance No. 2546 (CCS) becoming effective, the Project shall store and reuse rainwater in accordance with SMMC Section 7.10.090(d).
2.8.9 Additional Energy Conservation Measures. In addition to the energy conservation measures included as project features in Section 2.7.11 above, the Project, except 43 for the energy for the electric vehicle charging infrastructure, shall be designed to use and shall achieve 15% less energy than required by the 2019 California Energy Code. This requirement shall be satisfied prior to issuance of the Project’s building permit.
2.8.10 Local Hiring Program. Developer shall implement and monitor the Local Hiring Program as set forth in Exhibits “I-1” and “I-2”. At least sixty (60) days before recruitment is opened up to general circulation for initial hiring in all or part of the Project’s commercial areas, Developer or the operator of the commercial space shall prepare and submit to the City’s Community Development Director for review and approval a written local hiring program consistent with the obligations under this Agreement for permanent employment. The approved local hiring plan may be amended by Developer from time to time thereafter, subject to the Community Development Director’s review and approval. Failure of any tenant to comply with the Local Hiring Program requirements shall not constitute a Default by Developer under this Agreement so long as such tenant’s lease requires such compliance and Developer is actively pursuing reasonable enforcement actions to bring such tenant into compliance with this lease provision.
2.8.11 Internship Program. During the Life of the Project, the Developer shall make available at least two (2) internships within the Hotel Uses during each school year (which for this purpose includes the following summer) to students who attend a high school in Santa Monica or Santa Monica College. The internship shall be paid at the City’s minimum wage unless a student requests an unpaid internship in order to obtain school credit(s) (or more school credits) for such internship. Developer will inform City’s Director of Community Development, Santa Monica High School, Santa Monica College, Virginia Avenue Park Advisory Board, Virginia Avenue Park Youth Employment Services, and at least one provider of affordable housing in Santa Monica (e.g. Community Corporation of Santa Monica) of the availability of, and selection criteria for, such internship prior to the start of each school year. The Developer shall also participate annually in Hospitality Training Academy, or any successor entity, internship fair/events to advertise the availability of the hotel internship. Developer shall select interns in accordance with its normal practice of hiring the most qualified candidate and shall make a good faith effort to hire residents of the 90404 zip code (Pico Neighborhood) as the first priority and other Santa Monica residents as the second priority when most qualified or equally qualified as other applicants who are not residents of the 90404 zip code or Santa Monica residents, as applicable. Subject to the requirements specified in this Section 2.8.11, Developer retains full discretion to establish selection criteria for, and to select, the students for the internship.
2.8.12 Enhanced Transportation Impact Fee. Prior to obtaining a building permit for the Project, Developer shall pay to the City the sum of Two Million, Two Hundred Fifty Five Thousand Dollars ($2,255,000.00) to be used by the City for transportation and mobility infrastructure improvements. This enhanced fee is instead of the Transportation Impact Fee that would otherwise be required for the Project pursuant to SMMC Ch. 9.66.
2.8.13 Economic Equity/Opportunity Fund Contribution. Prior to issuance of a building permit for the Project, Developer shall make a contribution to the City in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00). The City shall utilize this contribution to support economic equity and opportunity initiatives, including but not limited to seed funding for economic opportunity initiatives to support local entrepreneurs from disadvantaged communities, 44 investments in community partnerships and non-profit organizations that support economic equity and opportunity initiatives, and other initiatives as determined by the City or as developed through current and future community processes. The City shall deposit such monies into a separate restricted account to be used exclusively for the economic equity and opportunity initiatives as described above through guidelines established by the City or through current and future community processes.
2.8.14 Equal Opportunity Subcontracting. The following language shall be included in all construction contracts between the Developer and its contractors for the Project:
“The Contractor shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors, or suppliers. The Contractor shall provide equal opportunity for subcontractors that are qualified and experienced in performing the scope of work required for a project of the Project’s quality and complexity to participate in subcontracting opportunities. The Contractor understands and agrees that violation of this clause shall be considered a material breach of the contract and may result in contract termination or other contract remedies.”
At least thirty (30) days before recruitment of subcontractors by any of Developer’s construction contractors, Developer shall submit documentation to the Community Development Director, evidencing its construction contractors’ outreach about bid opportunities to enhance participation by all classes of subcontractors, vendors, or suppliers who are qualified and experienced to perform the scope of work required for a project of the Project’s quality and complexity, including, without limitation, women business enterprises, minority business enterprises, and local business enterprises. The scope of documentation shall be reasonably determined by the Community Development Director.
2.8.15 Enhanced Affordable Housing Commercial Linkage Fee. Prior to obtaining a building permit for the Project Developer shall pay to the City the sum of Four Hundred Thousand Dollars ($400,000.00) to be used by the City to facilitate the development and availability of housing affordable to a broad range of households with varying income levels within the City. This enhanced fee is instead of the Affordable Housing Commercial Linkage fee that would otherwise be required for the Project pursuant to SMMC ch. 9.68.
2.8.16 Gehry Partners as Architect. Developer understands, acknowledges, and agrees that City has materially relied upon Developer’s representation that Gehry Partners will continue to be the lead design architect for the Project through issuance of the Project’s Certificate of Occupancy, and that this representation is deemed by the Parties as a community benefit.
2.8.17 Clean Power. Developer shall contract with the Clean Power Alliance, or similar/successor entity, for electrical service for the Project under the 100% Green Power tier (which is sourced entirely from wind, solar and geothermal sources) at all times such tier is offered as a service option by the electric utility provider. 45 2.8.18 Enhanced Parks and Recreation Fee. Prior to obtaining a building permit for the Project, Developer shall pay to the City the sum of Two Million, One Hundred Sixty Thousand Dollars ($2,160,000.00) to be used by the City for off-site parks and recreation projects and programs. This enhanced fee is instead of the Parks and Recreation Development Impact Fee that would otherwise be required for the Project pursuant to SMMC.
2.9 Parking.
2.9.1 Total Number of Spaces. The total number of parking spaces (including all standard-sized, compact, accessible and tandem spaces) provided in the Project’s subterranean space shall be 285, including up to 40% compact parking spaces, unless modified in accordance with Sections 2.4.2 and/or 2.4.3 of this Agreement. Notwithstanding SMMC Section
9.28.120(P), compact parking need not be evenly distributed in parking areas or levels so long as valet or attendant parking is provided. If compact parking is not provided in accordance with SMMC Section 9.28.120(P), valet or attendant parking shall be required at all times unless such requirement is waived in whole or in part by the Director of the Department of Transportation.
In addition to the marked parking spaces, the opportunity for increasing the parking capacity of the garage exists by parking vehicles in the aisles in those portions of the parking garage staffed with attendant or valet parking. In accordance with Condition 24 of Section B of Exhibit “D” to this Agreement, the final auto parking layout specifications shall be subject to the review and approval of the Mobility Division and the Building and Safety Division, and the standards in SMMC Section 9.28.120 shall apply except as provided in this Agreement. So long as the total number of vehicular parking spaces complies with the requirements in this Section 2.9.1, Developer may request and the Director of the Department of Transportation may approve modifications to or waivers of parking design and development standards in Santa Monica Municipal Code Ch. 9.28. This Agreement and the Project Plans set forth the exclusive off-street parking requirements. Provided, and to the extent that the Developer supplies the quantity of parking required under this Agreement, Developer shall have no obligation to pay any parking in-lieu fees to City. Further, provided that Developer supplies the quantity of parking required under this Section, the design, location or position of any parking layout may be revised subject to review and approval by the Director of the Department of Transportation.
2.9.2 Shared Parking. Developer may make any unused on-site parking available for lease consistent with the terms of Exhibit "H", Section (e)(1)(iv).
2.9.3 Parking and Loading Operations Plan. Prior to the issuance of a building permit for the Project, the Developer shall submit a Parking and Loading Operations Plan to the Director of the Department of Transportation for review and approval. The contents of the Plan shall include the following information and any other information as specified by the Mobility Division at the time of submittal: 1) Project location and description of parking and loading facilities; 2) parking and loading layout including accessibility and circulation; 3) hours of operation and staffing of parking and loading facilities; and 4) an operational restriction limiting the delivery/freight trucks to the WB-40 truck sizes with a 50’ maximum length. Developer shall notify all commercial tenants within the Project in writing as part of their lease of the operational restriction limiting the delivery/freight trucks to the WB-40 truck sizes with a 50’ maximum length.
46 2.9.4 Bicycle Parking. Bicycle Parking for the Project shall be provided in accordance with Condition 27 of Section B of Exhibit “D” to this Agreement (Bicycle Parking), Section (d)(1)(ii) of Exhibit “H” to this Agreement (Employee Secure Bicycle Storage), Section (d)(1)(iv) of Exhibit “H” to this Agreement (Commercial Short-Term Bicycle Parking), Section (d)(2)(i) of Exhibit “H” to this Agreement (Residential Secure Bicycle Storage), and Section (d)(2)(ii) of Exhibit “H” to this Agreement (Residential Short-Term Bicycle Parking). In accordance with Condition 24 of Section B of Exhibit “D” to this Agreement, the final bicycle parking layout, distribution of bike parking throughout the project, and types of bike parking equipment shall be subject to the review and approval of the Mobility Division. At least one of the stairways from the B1 level on the Second Street Parcel shall have a bicycle channel/runnel to the ground level to facilitate walking a bicycle up/down the stairway.
2.9.5 Ocean Avenue On-Street Valet.
(a) Developer may request an on-street valet permit for its commercial operations, however the City reserves the exclusive right to utilize and manage the public right-of-way in a manner that may preclude on-street valet operations in the future. Prior to commencement of on-street valet operations, Developer shall obtain a valet permit in accordance with SMMC ch. 6.120 or any successor thereto. Unless otherwise approved by the Director of the Department of Transportation, or his or her designee, the valet zone shall be used for the purpose of Project patron/visitor and first-time hotel guest drop-off. Returning and departing Project guests/visitors will be directed to the Project’s drop-off/pick-up point located on Level B1 (using the ramp located off First Court Alley). The final location and size of the valet zone would be subject to review and approval by the City’s Director of the Department of Transportation, or his or her designee. The Project shall adequately staff the valet drop off to avoid queuing outside of the approved valet zone.
(b) Prior to issuance of a building permit for the Project, Developer shall submit to the Community Development Director for review and approval a wayfinding/signage plan alerting/directing Project visitors accessing the Project via vehicle to the Project’s subterranean garage entrance off of First Court Alley. If the Community Development Director and the Public Works Director reasonably determine that it is necessary for one or more of such signs to be located in the public right-of-way (e.g. along Arizona Avenue/First Court Alley) in order for Project visitors to be alerted to the location of the Project’s subterranean garage entrance, then Developer shall obtain a license agreement from the City for such signage, which shall not be unreasonably denied, withheld or delayed.
2.9.6 Second Street Egress. Prior to the issuance of the Project’s Certificate of Occupancy, Developer shall install “No Left Turn” and/or other appropriate signage and/or pavement markings to discourage vehicles from exiting the Project and making a left turn onto Second Street.
2.9.7 This Section 2.9 shall survive the Term of this Agreement and shall remain binding on City and Developer, its successors and assigns, and shall continue in effect for the Life of the Project. Notice of the terms and conditions in this Section 2.9 shall be recorded separately from and concurrently with this Agreement, stating they are applicable for the Life of the Project.
47 2.10 Design.
(a) Setbacks. Developer shall maintain the ground-level setbacks necessary to achieve the DCP’s minimum Building Frontage Line requirements in DCP Section 9.10.060.D, as described by Section 2.10(k), below. In the event that any inconsistencies exist between the Zoning Ordinance and the setbacks established by this Agreement, then the setbacks established by this Agreement shall prevail.
(b) Building Height. The maximum Building Height shall be 130 feet for the Hotel Building, 60 feet for the Cultural Uses Building, 58 feet for the Corner Building, 75 feet for the Santa Monica Boulevard Building, and 106 feet for the Second Street Building(s). 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. Thirty-Five Percent (35%) of the Building Height above 60 feet on any street-facing facades shall stepback from the Building Frontage Line required in DCP Section 9.10.060.D by a minimum of 5 feet. Stepbacks are not required to be open to the sky. In the event that any inconsistencies exist between the Zoning Ordinance and the setbacks required by this Agreement, then the setbacks established by this Agreement shall prevail. (d) Height Projections. Projections shall be permitted including up to 15 feet from the roof deck for photovoltaic panels, 14 feet from the roof deck for solar thermal water heaters, 22 feet from the roof deck for elevators/elevator shafts and associated equipment, and 12 feet from the roof deck for rooftop features for outdoor living areas such as sunshade, open railings, trellises and landscaping. Projections on the Hotel Building to accommodate the Publicly-Accessible Observation Deck shall be permitted up to 26 feet from the roof deck for elevators/elevator shafts and associated equipment, up to 15 feet from the roof deck for the remainder of the elevator lobby and other projections, and up to 16 feet from the roof deck for mechanical screening. For the Corner Building, architectural features may extend an unlimited number of feet above the roof deck so long as they are within the overall 58-foot building height limit. For the Cultural Uses Building, skylights up to 9 feet above the roof deck shall be permitted. There shall be no limit on the amount of roof area that can be covered by photovoltaic panels, solar thermal water heaters and outdoor living areas provided that such height projections are setback from the roof edge as shown on the Project Plans and are approved pursuant to Section 6.1. Except at provided in this Section 2.10(d), projections shall be consistent with SMMC Section 9.21.060 and Table 9.21.060. 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) Projections from Buildings into Minimum Setbacks. The Project shall comply with DCP Section 9.10.120 governing projections into minimum setbacks. SMMC Section 9.21.110 shall not apply to the Project.
(f) Signage. Exterior signs on the Property that are visible from a public right-of-way shall be subject to Chapter 9.61 of the SMMC (Santa Monica Sign Code) in effect as of the Effective Date, a copy of which is contained within Exhibit "C"; provided, however, that any review of the sign required by Chapter 9.61 of the SMMC, including with respect to the 48 sign’s location, size, materials, and colors, shall be in accordance with the procedures set forth in Article 6 of this Agreement. Pursuant to SMMC 9.61.130 and Section 6.1, one or more sign adjustments may be approved. Directional signs for vehicles shall be located at approaches to driveways as required by the City's Mobility Division.
(g) Resource Recovery and Recycle Storage and Staging Areas. Refuse and recycling storage and staging areas shall be provided in accordance with the Project Plans and City-approved Construction Plans and Specifications, which are subject to the review and approval of the Director of Public Works pursuant to SMMC Section 9.21.130. (h) Swimming Pool. Because the Project’s swimming pool is located on a roof deck, as shown on the Project Plans, the swimming pool standards included in SMMC Section 9.21.160 shall not apply to the Project.
(i) Fences, Walls and Hedges. The location, size, materials, and color of any fences, walls and hedges, as applicable, shall be reviewed in accordance with the Design Review procedures and criteria set forth in Article 6 of this Agreement and the modification and waiver procedures and findings in SMMC ch. 9.43 shall not apply. The Landmarks Commission or ARB (or the City Council on appeal), as applicable, may authorize fences, walls and hedges that exceed the maximum heights included in SMMC Section 9.21.050; provided however that no fences, walls or hedges are allowed in the setback/open space area between the Queen Anne Landmark and Ocean Avenue or the Spanish Colonial Revival Landmark and Ocean Avenue. (j) Reflective Materials. Notwithstanding SMMC Section 9.21.120, in reviewing and approving the Project’s design pursuant to Article 6, the Landmarks Commission or ARB (or the City Council on appeal), as applicable, may allow any of the buildings’ façade to have more than twenty-five percent (25%) of a highly reflective material(s). (k) DCP Development Standards. In addition to the development standards applicable to the Property pursuant to DCP Section 9.10.080 (height limit, Maximum Floor Area and open space), the Project shall achieve the DCP’s minimum Building Frontage Line requirements in DCP Section 9.10.060. In order to achieve these Building Frontage Line requirements (20 feet minimum along Ocean Avenue, 15 feet minimum along Second Street, and 18 feet minimum along Santa Monica Boulevard), the Project shall be setback a minimum of 3 feet and 6 inches (3’-6”) from the Second Street property line. Except as provided in this Section
2.10(k) and consistent with DCP Section 9.10.080, the DCP’s generally applicable standards and regulations, including those applicable to the Ocean Transition District and Bayside Conservation (2nd and 4th Streets) designations, shall not apply to the Project. (l) Loading Spaces. Loading spaces for the Project are conceptually shown on the Project Plans and shall be subject to review and approval by the Director of the Department of Transportation. Design/dimensions of Project loading spaces may be revised by the Developer and any revisions shall be subject to review and approval by the Director of the Department of Transportation. The loading requirements in Zoning Ordinance, including those in SMMC Section 9.28.080, shall not apply to the Project.
49 (m) Windows in Bedrooms. All bedrooms in residential units shall have at least one window.
2.11 Contract with City. Developer hereby acknowledges that in approving this Agreement for the Project, the City is waiving certain fees and taxes and modifying certain development standards that would otherwise be applicable to the Project such as increasing unit density and other property development standards compared with the DCP’s standards for base projects in the Ocean Transition and Bayside Conservation (2nd and 4th Streets) designations, as applicable. In exchange for such forms of assistance from the City, which constitute direct financial contribution to the Developer, Developer has entered into this contract with the City and agreed to the other conditions of the Development Agreement, including the requirement to provide and maintain the Affordable Housing Units for occupancy by income qualified households. The parties agree and acknowledge that this is a contract providing forms of assistance to the Developer within the meaning of Civil Code Section 1954.52(b) and Chapter
4.3 of the State Planning and Zoning Laws, Government Code Section 65915 et seq.
2.12 Coastal Commission Review. After the Effective Date of the Development Agreement and the 1992 LUP Amendment, in order to allow Developer to file its application with the California Coastal Commission for the Project’s Coastal Development Permit prior to completion of the Design Review Process required by Article 6 of this Agreement, the Community Development Director, or his or her designee, shall provide Developer with a fully completed and executed Section 2 of the Local Agency Review Form (Appendix B of the Coastal Development Permit Application) and stamp two sets of Project Plans within 15 days after receiving such a written request and the associated processing fee from Developer.
2.13 Dedication and Acceptance of Street Easement. Prior to the closure of the southern portion of First Court Alley for general vehicular access to facilitate it becoming the Pedestrian Mall, Developer shall dedicate to City and City shall accept the re-routed First Court Alley vehicular access across the Second Street Parcel (the “Re-Routed First Court Alley”) as a public right-of-way in pursuant to a surface easement agreement in the form of Exhibit "O" attached hereto.
2.14 Ellis Act Waiver. Developer understands, acknowledges, and agrees that this Development Agreement is a voluntary contract between the City and Developer, detailing the obligations of both parties and specifying the standards and conditions that will govern development of the Project on the Property. Developer further understands, acknowledges, and agrees that the Developer’s provision of the Project’s Rental Housing Units, including the Replacement Units and the Affordable Housing Units referenced in Sections 2.7 and 2.8, is consideration for the City’s direct financial contribution in the form of the City’s grant of a license to Developer to use public property as specified in Sections 2.2(c) and (d) of this Development Agreement. Developer understands, acknowledges and agrees that the City’s grant of a license to Developer constitutes a direct financial contribution within the meaning of California Government Code sections 7060.1 and 65916; Developer, therefore, waives any rights to withdraw the Project’s Rental Housing Units from the rental market during the Life of the Project under the Ellis Act (Government Code sections 7060 et seq.) unless (a) the Project is damaged or destroyed and the Ellis Act is being used to facilitate the removal and rebuilding of 50 the Project, including the Rental Units, in accordance with this Development Agreement or (b) expressly authorized by the City Council as a major amendment to this Development Agreement.
ARTICLE 3
CONSTRUCTION
3.1 Construction Mitigation Plan. During the construction phase of the Project, Developer shall comply with the Construction Mitigation Plan attached as Exhibit “J” 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 Project Site’s property lines 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, after hours construction permits can be granted for concrete pours.
3.3 Outside Building Permit Issuance Date.
a. 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. Issuance of a Foundation Only Permit pursuant to Section 2.4.6 constitutes a building permit for purposes of this Section 3.3.
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 eight (8) years after the Effective Date; provided that the Outside Building Permit Issuance Date shall automatically be extended by applicable Excusable Delays and otherwise in accordance with the remainder of this paragraph.
b. If the approval of the Project design does not occur within six (6) months of the submittal by Developer to the ARB or Landmarks Commission of the Project design pursuant to Article 6, then the Outside Building Permit Issuance Date shall be automatically extended one month for each additional month or partial month greater than six (6) that the final ARB or Certificate of Appropriateness approval, as applicable, is delayed. If the approval by the California Coastal Commission of the Project does not occur within six (6) months of the submittal by Developer to the Coastal Commission, then the Outside Building Permit Issuance Date shall automatically be extended one month for each additional month or partial month greater than six (6) that the Coastal Commission approval is delayed. 51 c. At any time after the Effective Date but before the Outside Building Permit Issuance Date, Developer may deliver written notice to the Community Development Director, requesting an extension of the Outside Building Permit Issuance Date for an additional twelve (12) months. The Community Development 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 Outside Building Permit Issuance Date and can demonstrate that: (a) the condition of the Project Site 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. If a building permit for all or part of the Project expires (e.g., is not timely exercised) or lapses and the Outside Building Permit Issuance Date has not expired, Developer may file for renewal of such building permit or a new/replacement building permit prior to the Outside Building Permit Issuance Date, as it may be extended pursuant to Section 3.3 above.
3.5 Damage or Destruction. If the Project, or any part thereof, is damaged or destroyed within the Term, 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 Developer is not in Breach of this Agreement. In addition, if the Project, or any part thereof, is damaged or destroyed beyond the Term but within fifty-five (55) years of issuance of the Project’s Certificate of Occupancy, Developer shall be entitled to reconstruct the Project in accordance with SMMC Section 9.27.040; provided, however, that if Developer rebuilds the Project, then Developer remains obligated to satisfy the significant project features (Section 2.7) and community benefits (Section 2.8) to the extent that they were required by this Agreement for the Project. This Section 3.5 shall survive the expiration of the Term of this Agreement and shall remain binding on Developer, its successors and assigns, and City and shall continue in effect for fifty-five (55) years from the issuance of the final certificate of occupancy for the Project.
3.6 Final Determination That the 101 Santa Monica Boulevard Building, 1327 Ocean Avenue Building, 1333 Ocean Avenue Rear Structure and 1337 Ocean Avenue Rear Structure Are Not Eligible for Designation as Landmarks or Structures of Merit. Due the prior review and consideration of the demolition permit applications for the 101 Santa Monica Boulevard Building, 1327 Ocean Avenue Building, 1333 Ocean Avenue Rear Structure and 1337 Ocean Avenue Rear Structure, these existing buildings shall not be designated or evaluated for designation as City landmarks or structures of merit up through the Outside Building Permit Issuance Date. Notwithstanding the foregoing, (a) no demolition permit(s) for the 1333 Ocean Avenue Rear Structure shall be issued until the Project has received its Certificate(s) of Appropriateness addressing removal of its physical connection(s) with the Queen Anne Landmark Building in accordance with Article 6 below and (b) no demolition permit(s) for the 1337 Ocean Avenue Rear Structure shall be issued until the Project has received its Certificate(s) of Appropriateness addressing removal of its physical connection(s) with the Spanish Colonial Revival Landmark Building in accordance with Article 6 below. 52 ARTICLE 4
PROJECT FEES, EXACTIONS, MITIGATION MEASURES
AND CONDITIONS
4.1 Fees, Exactions, Mitigation Measures and Conditions. Except as expressly set forth in Section 2.8 (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 “D”, “J” and “K”, respectively, 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.
Notwithstanding the foregoing, except to the extent specifically provided otherwise, this Agreement does not require Developer to pay any exactions nor implement any mitigation measures nor satisfy any conditions of approval if Developer does not obtain a building permit for the Project prior to expiration of the Outside Building Permit Issuance Date including any extensions thereof or any tolling thereof in accordance with Section 3.3.
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 or any portion thereof, except as otherwise expressly limited in this Agreement, the community benefits required by Section 2.8, and the obligations and requirements imposed by the mitigation measures and conditions of approval set forth in the attached Exhibit “D”, “E-1”, “E-2”, and “I-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 and for any reconstruction authorized by Section 3.5. Notice of the community benefits, mitigation measures and conditions of approval shall be recorded by the City separately and concurrently with this Agreement. Such notice shall include a process by which Developer, after expiration of the Term of this Agreement, can seek and the City can approve modifications to the requirements in this Agreement. For the avoidance of doubt, none of the requirements in this Agreement that run for the Life of the Project shall be interpreted to either (a) compel Developer to operate the Project beyond its “useful life” as determined by Developer or (b) prevent Developer from seeking future City entitlements to redevelop the Project Site (in which case the conditions and requirements in those future City entitlements would apply). 53 4.3.2 Fee Waivers and Reductions. Except as otherwise provided herein, the Project shall be entitled to all fee waivers and fee reductions available for projects involving City-designated landmarks and/or affordable housing under the SMMC.
ARTICLE 5
EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS
5.1 Development Standards for the Project Site; Existing Regulations. The following development standards and restrictions set forth in this Section 5.1 govern the use and development of the Project and shall constitute the Existing Regulations, except as otherwise expressly required by this Agreement.
5.1.1 Defined Terms. The following terms shall have the meanings set forth below:
(a) “Existing Regulations” collectively means all of the following which are in force and effect as of the Effective Date: (i) the General Plan (including, without limitation, the LUCE); (ii) the DCP, (iii) the Zoning Ordinance except as modified herein; (iv) any and all ordinances, rules, regulations, standards, specifications and official policies of the City governing, regulating or affecting the demolition, grading, design, development, building, construction, occupancy or use of building and improvements or any exactions therefore, except as amended by this Agreement; (v) the City’s 1992 LUP, as amended by the 1992 LUP Amendment; and (vi) the development standards and procedures in Article 2 of this Agreement. (b) “Subsequent Code Changes” collectively means all of the following which are adopted or approved subsequent to the Effective Date, whether such adoption or approval is by the City Council, any department, division, office, board, commission or other agency of the City, by the people of the City through charter amendment, referendum, initiative or other ballot measure, or by any other method or procedure: (i) any amendments, revisions, additions or deletions to the Existing Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications and official policies of the City governing or affecting the grading, design, development, construction, occupancy or use of building or improvements or any exactions therefor. “Subsequent Code Changes” includes, without limitation, any amendments, revisions or additions to the Existing Regulations imposing or requiring the payment of any fee, special assessment or tax.
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, the DCP, the 1992 LUP as amended by the 1992 LUP Amendment, and the 2018 Draft LUP. 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 54 City or any agency or body thereof, other than the matters of Design Review as specified in Article 6 and review of modifications to the Project as expressly set forth in Sections 2.4.2, 2.4.3,
2.5.3, 2.5.4, and 2.6; (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 Project Site in effect at the time an application for a grading permit or building permit is applied for; (iii) the public works plan check fee and public works inspection fee for public improvements constructed and installed by Developer; (iv) fees for monitoring compliance with any development approvals, or any environmental impact mitigation measures; (v) utility charges; and (vi) fees that may be paid in-lieu of satisfying water neutrality or water recycling requirements, if applicable; 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 Project Site or to businesses occupying the Project Site; provided that (i) the tax is of general applicability City-wide and does not burden the Project Site 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 Community Plan area 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 55 limit or impair the Project approvals granted in this Agreement unless adopted to meet health and safety concerns.
(e) Any City regulations to which Developer has consented in writing, which consent may be withheld by Developer in its sole discretion. (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) Wastewater/water connection fees, including capital facility and construction fees, which are adopted by the City Council from time to time and apply generally throughout the City.
(h) Regulations which do not impair the rights and approvals granted to Developer under this Agreement. For the purposes of this Section 5.2.1(h), 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. (i) Generally applicable codes or actions necessary to comply with a declaration of a Water Shortage Emergency pursuant to the California Water Code.
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 Project Site. 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 Project Site 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 Project Site is concerned. If there is any conflict or inconsistency between the 56 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 Project Site 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 Project Site except as expressly provided in this Agreement.
5.6 1992 LUP Amendment Application to Coastal Commission. Within 45 days after receiving a written request from Developer and confirmation from Developer that Developer will be ready to file its application for the Project’s Coastal Development Permit within 45 days, City shall file a fully completed application with the California Coastal Commission for an amendment to the 1992 LUP and such amendment application shall be consistent with the 1992 LUP Amendment approved by the City Council concurrent with its approval of the Project.
Upon its filing, City shall promptly provide Developer with a conformed copy of the amendment application and shall process the 1992 LUP Amendment application in good faith so that it may be brought forward for consideration by the California Coastal Commission concurrently with the Commission's consideration of the Project's Coastal Development Permit(s). Developer shall reimburse the City for its actual and reasonable costs incurred in connection with processing such amendment application after provision of an invoice by the City.
ARTICLE 6
DESIGN APPROVAL
6.1 Design Approval.
a. Except as provided in this Article 6 and consistent with Mitigation Measure CR-1 as set forth in Exhibit “D”, the design of the Cultural Uses Campus--including but not limited to (i) design of the Cultural Uses Building, (ii) protection, relocation (both temporary and permanent), rehabilitation and/or restoration of the Queen Anne and Spanish Colonial Revival Landmarks, (iii) connections between the Cultural Uses Building and the Landmark Buildings and (iv) open space improvements in the portion of the Project Site north of the Hotel Building within the area delineated on Exhibit “L”--shall be subject to review and approval or conditional approval by the Landmarks Commission in accordance with the Certificate of Appropriateness procedures and criteria set forth in SMMC Section 9.56.170. Notwithstanding the foregoing, a member of the ARB as may be appointed by the ARB shall be encouraged to be present and may participate in the Landmarks Commission’s discussion and deliberation but may not cast a vote at any Landmarks Commission hearings for approval, conditional approval, or 57 denial, of one or more Certificates of Appropriateness for the Project. Subject to Section 6.1(c) below, as to these improvements the Landmarks Commission shall have the jurisdiction outlined in SMMC Section 9.56.140, which supplants the jurisdiction of the ARB per Existing Regulations 9.55.120 with respect to the Project improvements covered by this Section 6.1(a), as if the delineated area(s) shown on Exhibit "L" were a Landmark Parcel. b. Except as provided in this Article 6, the design of all Project improvements and open space except those addressed in Section 6.1(a) above and as delineated within the red hatching on Exhibit “L” shall be subject to review and approval or conditional approval by the ARB in accordance with design review procedures in SMMC 9.55.120 except that a Landmarks Commissioner, as may be appointed by the Landmarks Commission, shall be encouraged to be present and may participate in discussion and deliberation but may not cast a vote at any ARB hearings for design approval, conditional approval, or denial of the Project improvements not covered by Section 6.1(a). The ARB’s approval of the Project’s design pursuant to this Section 6.1(b) shall not occur until after the Landmarks Commission’s approval of the Certificate of Appropriateness for the Cultural Uses Campus pursuant to Section 6.1(a); provided however that the ARB’s approval of the Project’s design may occur prior to the Landmarks Commission’s approval of the Certificate of Appropriateness for the Cultural Uses Campus landscape/hardscape design if the Applicant elects to defer the Landmarks Commission’s decision as to landscape and/or hardscape to a later time. c. Consistent with Existing Regulations, neither the ARB nor the Landmarks Commission (nor the City Council on appeal) may require modifications to the Buildings’ design which negate the fundamental development standards established by this Agreement. For example, neither the ARB nor the Landmarks Commission (nor the City Council on appeal) can require reduction in the overall height of the buildings, reduction in the number of stories in the buildings, reduction in number of hotel rooms or residential units, reduction in the Floor Area greater than two percent (2%) or expansion of the open space. The ARB or the Landmarks Commission (or the City Council on appeal) may not, directly or indirectly, take action that has the effect of (x) preventing the moving, temporary staging or ultimate repositioning of the Queen Anne Landmark and/or Spanish Colonial Revival Landmark as shown on the Project Plans or (y) requiring elimination of any of the physical connections between the Buildings. d. Either or both the ARB’s approval and Landmarks Commission’s certificate of appropriateness are appealable to the City Council (and not the Planning Commission). Appeal of an ARB approval shall be in accordance with the procedures set forth in SMMC 9.37.130; provided, however, that the City Council shall schedule a public hearing to be held within forty-five (45) days after the notice of appeal is properly filed and the City Council shall render its decision on the appeal within thirty (30) days from the date set for the initial public City Council appeal hearing unless the Developer requests a continuance or otherwise agrees to grant an extension. Appeal of a Landmarks Commission certificate of appropriateness shall be in accordance with the procedures set forth in SMMC 9.56.180. e. Unless the Developer requests a continuance or otherwise agrees to grant an extension, if either the ARB or Landmarks Commission does not render a final decision within 120 days of the ARB application or Certificate of Appropriateness application (or amendment application), as applicable, being filed, Developer may request that the City Council 58 conduct a public hearing or hearings and render a final decision on the applicable design application. The City Council shall schedule such hearing within 45 days of receiving such request unless Developer consents to an extension of such 45-day time period, which consent Developer may withhold in its sole discretion.
f. After initial design approval of the Project, any future modifications to the approved design shall be reviewed by the same body and the same process outlined above in this Article 6 for the initial design approval for the Project; provided, however, that City Staff shall be authorized to approve minor modifications.
g. Amendments to ARB approval(s) and Certificate(s) of Appropriateness for the Project and ARB approval and Certificate of Appropriateness applications filed subsequent to approval of the initial ARB approval and Certificate(s) of Appropriateness governing design, colors, materials, and landscaping shall be reviewed by the Landmarks Commission or ARB, as applicable, pursuant to the same processes outlined above in this Article 6; provided, however, that City Staff shall be authorized to approve minor modifications to any Certificate of Appropriateness and/or ARB approval.
6.2 Conceptual Design Review. Developer may elect from time to time, prior to filing an application for a Certificate of Appropriateness or ARB approval, to seek conceptual review(s) from the Landmarks Commission or the Architectural Review Board (or both, separately or jointly) in duly noticed public hearings. Upon receiving such request from Developer, City shall promptly schedule such conceptual review(s). The body not holding the conceptual review may (but is not required to) send a liaison to the conceptual review (e.g., if the Landmarks Commission is holding a conceptual review, the ARB may send a liaison).
6.3 Notification to Design Review Bodies. City Staff shall notify the Landmarks Commission of any ARB hearings regarding the Project and shall notify the ARB of any Landmarks Commission hearings regarding the Project.
6.4 Expiration of Design Approvals. Notwithstanding any provisions of the Existing Regulations, no ARB approval and/or no Certificate of Appropriateness granted with respect to the Project shall expire prior to expiration of the Outside Building Permit Issuance Date, including any extensions thereof or any tolling thereof in accordance with Section 3.3.
6.5 Concurrent Processing of One Foundation Only Permit. Developer may concurrently process plan check for one or more foundation-only permits (SMMC § 8.08.060) during the processing of processing of an ARB application and/or Certificate of Appropriateness application(s) pursuant to this Article 6. Developer hereby agrees to accept the risk of plan check revisions if necessitated by the outcome of the ARB design review and/or Landmarks Commission’s review of a Certificate of Appropriateness.
6.6 Concurrent Application to California Coastal Commission. In order to allow Developer to file its application with the California Coastal Commission for the Project’s Coastal Development Permit prior to completion of the Design Review Process required by this Article, the Community Development Director, or his or her designee, shall provide Developer with a fully completed and executed Section 2 of the Local Agency Review Form (Appendix B of the 59 Coastal Development Permit Application) and stamp two sets of Project Plans within 15 days after receiving such a written request and the associated processing fee from Developer.
ARTICLE 7
CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below:
7.1.1 “Technical City Permits” means any Ministerial Approvals, consents or permits from the City or any office, board, commission, department, division or agency of the City, which are necessary for the actual construction of the Project or any portion thereof in accordance with the Project Site Plan and this Agreement. Technical City Permits include, without limitation (a) building permits, (b) related mechanical, electrical, plumbing and other technical permits, (c) demolition, excavation and grading permits, (d) encroachment permits, (e) tieback and shoring permits, (f) off-site improvement permits, and (g) temporary and final certificates of occupancy.
7.1.2 “Technical Permit Applications” means any applications required to be filed by Developer for any Technical City Permits.
7.2 Diligent Action by City.
7.2.1 Upon satisfaction of the conditions set forth in Section 7.3, the City shall accept the Technical Permit Applications filed by Developer with the City and shall diligently proceed to process such Technical Permit Applications to completion.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3, the City shall diligently issue the Technical City Permits which are the subject of the Technical Permit Applications.
7.2.3 In accordance with SMMC Chapter 9.64, the Project shall receive priority building department plan check processing by which housing developments shall have plan check review in advance of other pending developments to the extent authorized by law.
7.3 Conditions for Diligent Action by the City.
7.3.1 Acceptance and Processing of Technical Permit Applications. The obligation of the City to accept and diligently process the Technical Permit Applications which are filed by Developer, and then issue the Technical City Permits, is subject to the satisfaction of the following conditions:
(a) Developer shall have completed and filed all Technical Permit Applications which are required under the administrative procedures and policies of the City which are in effect on the date when the Technical Permit Application is filed; provided that such procedures and policies are uniformly in force and effect throughout the City; 60 (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 Design Approval referred to in Article 6 above.
7.3.2 Issuance of a Technical City Permit. The obligation of the City to issue a Technical City Permit which is the subject of a Technical Permit Application filed by Developer is subject to the satisfaction of the following conditions (and only such conditions and no others):
(a) Developer shall have complied with all of its obligations under this Agreement, including those in Exhibit “D”, which are required to be performed prior to or concurrent with the issuance of the Technical City Permits for the proposed Building; (b) Developer shall have received any permits or approvals from other governmental agencies which are required by law to be issued prior to or concurrent with the issuance of the Technical City Permits for the proposed Building or offsite improvements, as applicable;
(c) The proposed Building conforms to the development standards for such Building established in this Agreement. In the event that a proposed Building is not in conformance with the development standards, Developer shall have the right to seek any relief from such standards under the procedures then available in the City; and (d) The proposed Building or offsite improvements, as applicable, conforms to the Administrative and Technical Construction Codes of the City (Article VIII of the SMMC) (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 Community Development 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 Community Development Director’s receipt of a written request for such relief from Developer. Developer is required to supply the Community Development 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 Community Development 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 61 Permits remain valid, shall be established in accordance with the Technical Codes in effect at the time that the Technical City Permits are issued. Subject to Section 3.4, the lapse or expiration of a Technical City Permit shall not preclude or impair Developer from subsequently filing another Technical Permit Application for the same matter during the Term of this Agreement, which shall be processed by the City in accordance with the provisions of this Article 7.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains building permits for the Project and, at any time after the Outside Building Permit Issuance Date, such building permits expire or are revoked pursuant to the applicable terms of the SMMC (as the same may be amended from time to time), then Developer may not subsequently apply for new building permits for the Project without first obtaining the prior written consent of the Community Development Director, which may be granted or withheld in the Community Development Director’s sole discretion.
ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. Subject to the notice and hearing requirements of the applicable Development Agreement Statutes, this Agreement may be modified or amended from time to time only with the written consent of Developer and the City or their successors and assigns in accordance with the provisions of the SMMC and Section 65868 of the California Government Code.
ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the Parties hereunder shall be effective as of the date upon which the ordinance approving this Agreement becomes effective (the “Effective Date”). The Parties shall execute this Agreement within ten (10) working days of the Effective Date.
9.2 Term.
9.2.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue for ten (10) years thereafter (the “Term”), unless the Term is otherwise terminated pursuant to Section 11.4, after the satisfaction of all applicable public hearing and related procedural requirements, or pursuant to Section 3.3. Notwithstanding the foregoing, if either (a) the approval of the Project design does not occur within six (6) months of the submittal of the Project design pursuant to Article 6 by Developer to the Landmarks Commission or ARB, as applicable, and/or (b) the approval by the California Coastal Commission of the Project does not occur within six (6) months of the submittal by Developer of the Project to the Coastal Commission, then the Term shall automatically be extended one month for each additional month or partial month greater than six (6) that the Landmarks Commission approval, ARB approval and/or Coastal Commission approval, as applicable, is delayed. 62 9.2.2 Termination Certificate. Upon termination of this Agreement, the Parties hereto shall execute an appropriate certificate of termination in recordable form (a “Termination Certificate”), which shall be recorded in the official records of Los Angeles County.
9.2.3 Effect of Termination. Except as expressly provided herein (e.g., Section
4.3.2), none of the parties' respective rights and obligations under this Agreement shall survive the Term.
ARTICLE 10
PERIODIC REVIEW OF COMPLIANCE
10.1 City Review. The City shall review compliance with this Agreement once each year, on or before March 31st (each, a “Periodic Review”), in accordance with this Article 10 in order to determine whether or not 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 at the time of the first annual report, if any, which form shall not change materially thereafter without Developer’s consent. For purposes of this Agreement, the phrase “good faith compliance” shall mean the following: (a) compliance by Developer with the requirements of the Existing Regulations, except as otherwise modified by this Agreement; and (b) compliance by Developer with the terms and conditions of this Agreement, subject to the existence of any specified Excusable Delays (as defined in Section 15.8 below) which prevented or delayed the timely performance by Developer of any of its obligations under this Agreement.
10.3 Information to be Provided to Developer. Prior to any public hearing concerning the Periodic Review of this Agreement, the City shall deliver to Developer a copy of all staff reports prepared in connection with a Periodic Review, written comments from the public and, to the extent practical, all related exhibits concerning such Periodic Review. If the City delivers to Developer a Notice of Breach pursuant to Section 11.1 below, the City shall concurrently deliver to Developer a copy of all staff reports prepared in connection with such Notice of Breach, all written comments from the public, and all related exhibits concerning such Notice of Breach.
10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City reasonably concludes on the basis of substantial evidence that Developer has not demonstrated that it is in good faith compliance with this Agreement, then the City may issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1 below, and Developer shall have the opportunity to cure the default identified in the Notice of Breach during the cure periods and in the manner provided by Section 11.2 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. 63 10.6 Termination of Development Agreement. If Developer fails to timely cure any material item(s) of non-compliance set forth in a Notice of 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 after provision of an invoice by the City.
ARTICLE 11
DEFAULT
11.1 Notice and Cure.
11.1.1 Breach. If either Party fails to substantially perform any term, covenant or condition of this Agreement which is required on its part to be performed (a “Breach” or “Default”), the non-defaulting Party shall have those rights and remedies provided in this Agreement; provided that such non-defaulting Party has first sent a written notice of Breach (a “Notice of Breach”), in the manner required by Section 15.1, specifying the precise nature of the alleged Breach (including references to pertinent Sections of this Agreement and the Existing Regulations or Subsequent Code Changes alleged to have been breached), and the manner in which the alleged Breach may satisfactorily be cured. If the City alleges a Breach by Developer, the City shall also deliver a copy of the Notice of Breach to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance with Article 12.
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 sixty (60) days after receipt by Developer of the Notice of Breach; provided that if such monetary Breach is the result of an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay, Developer shall deliver to the City reasonable evidence of the Excusable Delay.
11.1.3 Non-Monetary Breach. In the case of a non-monetary Breach by either Party, the alleged defaulting Party shall promptly commence to cure the identified Breach and shall diligently prosecute such cure to completion; provided that the defaulting Party shall complete such cure within thirty (30) days after receipt of the Notice of Breach or provide evidence of Excusable Delay that prevents or delays the completion of such cure. The thirty (30) day cure period for a non-monetary Breach shall be extended as is reasonably necessary to remedy such Breach; provided that the alleged defaulting Party commences such cure promptly after receiving the Notice of Breach and continuously and diligently pursues such remedy at all times until such Breach is cured.
11.1.4 Excusable Delay. Notwithstanding anything to the contrary contained in this Agreement, the City’s exercise of any of its rights or remedies under this Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8 below. 64 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) sixty (60) days after receipt by Developer of a Notice of Breach from the City and (b) after expiration of Secured Lender’s Cure Period under Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in accordance with Section 12.1), then an “Event of Monetary Default” shall have occurred by Developer and the City shall have available any right or remedy provided in this Agreement, at law or in equity. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy.
11.3 Remedies for Non-Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of Breach from the other Party regarding a non-monetary Breach, and the non-monetary Breach remains uncured:
(a) after expiration of all applicable notice and cure periods, and (b) in the case of a Breach by Developer, after the expiration of Secured Lender’s Cure Period under Section 12.1 (if a Secured Lender of Developer has delivered a Request for Notice to the City in accordance with Section
12.1), then an “Event of Non-Monetary Default” shall have occurred and the non-defaulting Party shall have available any right or remedy provided in this Agreement, or provided at law or in equity except as prohibited by this Agreement. All of said remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election in respect to any other available remedy.
11.3.2 Specific Performance. The City and Developer acknowledge that monetary damages and remedies at law generally are inadequate and that specific performance is an appropriate remedy for the enforcement of this Agreement. Therefore, unless otherwise expressly provided herein, the remedy of specific performance shall be available to the nondefaulting party if the other Party causes an Event of Non-Monetary Default to occur.
11.3.3 Writ of Mandate. The City and Developer hereby stipulate that Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy any Event of Non-Monetary Default by the City of its obligations and duties under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary standard or the standard of review applicable to any action of, or approval by, the City pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by Developer that the City would not have entered into this Agreement if the City were to be liable in damages under or with respect to this Agreement or the application thereof. Consequently, and except for the payment of attorneys’ fees and court costs, the City shall not be liable in damages to Developer, and Developer covenants on behalf of itself and its successors in interest not to sue for or claim any damages:
(a) for any default under this Agreement;
65 (b) for the regulatory taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; or (c) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
The City and Developer agree that the provisions of this Section 11.3.4 do not apply for damages which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or provided under this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any dispute, controversy, or issue regarding the application, interpretation, or effect of the provisions of this Agreement or the application of any City rules, regulations, or official policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the same may be amended from time to time and shall follow the notice procedures of Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these remedies are applied.
11.3.6 No Damages Against Developer. It is acknowledged by the City that Developer would not have entered into this Agreement if Developer were to be liable in damages in connection with any non-monetary default hereunder. Consequently, and except for the payment of attorneys’ fees and court costs, Developer shall not be liable in damages to the City for any nonmonetary default, and the City covenants on behalf of itself not to sue for or claim any damages:
(a) for any non-monetary default hereunder or;
(b) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
The City and Developer agree that the provisions of this Section 11.3.6 do not apply for damages which:
(a) are for a monetary default; or
(b) do not arise out of or which are not connected with any dispute, controversy or issue regarding the application, interpretation, or effect of the provisions of this Agreement to or the application of any City rules, regulations, or official policies; or (c) constitute Damages which arise under Section 14.1.
11.3.7 No Other Limitations. Except as expressly set forth in this Section 11.3, the provisions of this Section 11.3 shall not otherwise limit any other rights, remedies, or causes 66 of action that either the City or Developer may have at law or equity after the occurrence of any Event of Non-Monetary Default.
11.4 Modification or Termination of Agreement by City.
11.4.1 Default by Developer. If Developer causes either an Event of Monetary Default or an Event of Non-Monetary Default, then the City may commence proceedings to modify or terminate this Agreement pursuant to this Section 11.4.
11.4.2 Procedure for Modification or Termination. The procedures for modification or termination of this Agreement by the City for the grounds set forth in Section
11.4.1 are as follows:
(a) The City shall provide a written notice to Developer (and to any Secured Lender of Developer which has delivered a Request for Notice to the City in accordance with Section 12.1) of its intention to modify or terminate this Agreement unless Developer (or the Secured Lender) cures or corrects the acts or omissions that constitute the basis of such determinations by the City (a “Hearing Notice”). The Hearing Notice shall be delivered by the City to Developer in accordance with Section 15.1 and shall contain the time and place of a public hearing to be held by the City Council on the determination of the City to proceed with modification or termination of this Agreement. The public hearing shall not be held earlier than:
(i) thirty-one (31) days after delivery of the Hearing Notice to Developer or (ii) if a Secured Lender has delivered a Request for Notice in accordance with Section 12.1, the day following the expiration of the “Secured Lender Cure Period” (as defined in Section 12.1). (b) If, following the conclusion of the public hearing, the City Council: (i) determines that an Event of Non-Monetary Default has occurred or the Developer has not been in good faith compliance with this Agreement pursuant to Section 10.1, and (ii) further determines that Developer (or the Secured Lender, if applicable) has not cured (within the applicable cure periods) the acts or omissions that constitute the basis of the determination under clause (i) above or if those acts or omissions could not be reasonably remedied prior to the public hearing that Developer (or the Secured Lender) has not in good faith commenced to cure or correct such acts or omissions prior to the public hearing or is not diligently and continuously proceeding therewith to completion, then upon making such conclusions, the City Council may modify or terminate this Agreement. The City cannot unilaterally modify the provisions of this Agreement pursuant to this Section 11.4. Any such modification requires the written consent of Developer. If the City Council does not terminate this Agreement, but proposes a modification to this Agreement as a result of the public hearing and Developer does not (within five (5) days of receipt) execute and deliver to the City the form of modification of this Agreement submitted to Developer by the City, then the City Council may elect to terminate this Agreement at any time after the sixth day after Developer’s receipt of such proposed modification.
11.5 Cessation of Rights and Obligations. If this Agreement is terminated by the City pursuant to and in accordance with Section 11.4, the rights, duties and obligations of the Parties under this Agreement shall cease as of the date of such termination, except only for those rights and obligations that expressly survive the termination of this Agreement. In such event, any and 67 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 satisfied the community benefits owed to the City under this Agreement as a condition to issuance of a building permit and 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 (a) complete construction of the Building in accordance with the terms of the building permit and this Agreement, subject to its continuing obligations to construct the Project with all significant project features (Section 2.7) and satisfy all outstanding community benefits (Section
2.8) and, (b) 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 building and uses unless the Building otherwise complies with the property development standards for the district in which it is located and the use is otherwise permitted or conditionally permitted in the district.
ARTICLE 12
MORTGAGEES
12.1 Encumbrances on the Project Site. This Agreement shall not prevent or limit Developer (in its sole discretion), from encumbering the Project Site (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 Project Site (a “Mortgage”). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a “Secured Lender”) on the Project Site shall be entitled to the rights and privileges set forth in this Article 12. Any Secured Lender may require from the City certain interpretations of this Agreement. The City shall from time to time, upon request made by Developer, meet with Developer and representatives of each of its Secured Lenders to negotiate in good faith any Secured Lender’s request for interpretation of any part of this Agreement. The City will not unreasonably withhold, condition or delay the delivery to a Secured Lender of the City’s written response to any such requested interpretation.
12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section 12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any Event of Monetary Default nor any Event of Non-Monetary Default shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value.
12.1.2 Priority of Agreement. This Agreement shall be superior and senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or interest in or with respect to the Project Site 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. 68 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 Project Site that is encumbered by the Secured Lender’s lien (a “Request for Notice”). If the Request for Notice has been given, at the same time the City sends to Developer any Notice of Breach or Hearing Notice under this Agreement, then if such Notice of Breach or Hearing Notice affects the portion of the Project Site encumbered by the Secured Lender’s lien, the City shall send to such Secured Lender a copy of each such Notice of Breach and each such Hearing Notice from the City to Developer. The copy of the Notice of Breach or the Hearing Notice sent to the Secured Lender pursuant to this Section 12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the City. The period within which a Secured Lender may cure a particular Event of Monetary Default or Event of Non-Monetary Default shall not commence until three days after 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) twenty (20) 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 Project Site 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 69 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 Project Site, 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 Project Site.
(b) Nothing in Section 12.1.4(a) is intended, nor should be construed or applied, to limit or restrict in any way the City’s authority to terminate this Agreement, as against any Secured Lender as well as against Developer if any curable Event of Monetary Default or an Event of Non-Monetary Default is not completely cured within the Secured Lender’s Cure Period.
ARTICLE 13
TRANSFERS AND ASSIGNMENTS
13.1 Transfers and Assignments.
13.1.1 Not Severable from Ownership Interest in Project Site. This Agreement shall not be severable from Developer’s interest in the Project Site and any transfer of the Project Site or any portion thereof, shall automatically operate to transfer the benefits and burdens of this Agreement with respect to the transferred Project Site or transferred portions, as applicable.
13.1.2 Transfer Rights. Developer may freely sell, ground lease, transfer, exchange, hypothecate, encumber or otherwise dispose of its interest in the Project Site (collectively referenced herein as “transfer”), without the consent of the City; provided, however, that prior to issuance of the first building permit for a Building, Developer shall record an Agreement to Hold Parcels as a Single Building Site in accordance with SMMC Section
9.21.030 in the customary form approved by the City Attorney against the Ocean Avenue Parcel and the Second Street Parcel. The Agreement to Hold Parcels as a Single Building Site shall ensure that the Project Site shall not be separately transferred until both (a) the Final Certificate of Occupancy is issued for the Project (or if the City issues a Final Certificate of Occupancy for a portion of the Project, Final Certificate of Occupancies have been issued covering all Buildings in the Project) and (b) a final parcel map or final subdivision map is obtained in accordance with SMMC Ch. 9.54 (Land Divisions), or successor thereto.
13.1.3 Future Subdivision. Developer may elect to proceed with a subdivision of the Project Site in accordance with SMMC Ch. 9.54 (Land Divisions), or successor thereto so long as no portion of the Project Site is separately transferred from another portion of the Project Site until after a Final Certificate of Occupancy is issued for the Project.
13.1.4 Transfer of Rights to the Project Site. The rights and obligations of the Developer and City under this Agreement apply to the entire Project Site upon transfer.
Developer shall, however, give written notice to the City, in accordance with Section 15.1, of any transfer of the Project Site, disclosing in such notice (a) the identity of the transferee of the 70 Project Site (the “Property Transferee”) and (b) the address of the Property Transferee as applicable.
13.2 No Release Upon Transfer if Transferor Remains Owner. Upon the transfer of any rights and interests of Developer to the Project Site, all owners of any parcel on the Project Site shall be jointly and severally liable along with any and all Property Transferee(s). Upon the transfer of the entire Project Site which results in the transferor no longer having any ownership in any portion of the Project Site, then the transferor shall be released from its obligations under this Agreement once the executed Assumption Agreement is provided to the City in accordance with Section 13.3.
13.3 Assignment to Property Transferee. Prior to any transfer, Developer shall provide written notice of such transfer to City; and the Property Transferee shall execute and deliver to City a written agreement in which the Property Transferee expressly and unconditionally assumes all of the obligations jointly and severally with all other owners of the Project Site in the form of Exhibit "M" attached hereto (the “Assumption Agreement”). Upon transfer of the Project Site and the express assumption of Developer’s obligations under this Agreement by the Property Transferee, the City shall look to all owners of any parcel on the Project Site and/or any and all Property Transferees for compliance with the provisions of this Agreement. Any such Property 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 remain jointly and severally liable along with the new Property Transferee and any other owners of the Project Site unless and until the executed Assumption Agreement is delivered to the City.
ARTICLE 14
INDEMNITY TO CITY
14.1 Indemnity. Developer agrees to and shall defend, indemnify and hold harmless the City, its City Council, boards and commissions, officers, agents, employees, volunteers and other representatives (collectively referred to as “City Indemnified Parties”) from and against any and all loss, liability, damages, cost, expense, claims, demands, suits, attorney’s fees and judgments (collectively referred to as “Damages”), including but not limited to claims for damage for personal injury (including death) and claims for property damage arising directly or indirectly from the following: (1) for any act or omission of Developer or 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 Project Site accessible to the public; and (3) any third party claims resulting from the City’s approval of the Pedestrian Mall, if such claims are asserted under the claims provisions of the Pedestrian Mall Law of 1960 (Streets and Highways Code sections 11000 et seq.). 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 negligence or willful 71 misconduct of any City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to have been suffered by the City Indemnified Parties regardless of whether or not the City prepared, supplied or approved plans or specifications or both for the Project.
14.2 City’s Right to Defense. The City shall have the right to approve legal counsel retained by Developer to defend any claim, action or proceeding which Developer is obligated to defend pursuant to Section 14.1, which approval shall not be unreasonably withheld, conditioned or delayed. If any conflict of interest results during the mutual representation of the City and Developer in defense of any such action, or if the City is reasonably dissatisfied with legal counsel retained by Developer, the City shall have the right, at Developer’s cost and expense, (a) to have the City Attorney undertake and continue the City’s defense, or (b) with Developer’s approval, which shall not be reasonably withheld or delayed, to select separate outside legal counsel to undertake and continue the City’s defense.
ARTICLE 15
GENERAL PROVISIONS
15.1 Notices. Formal notices, demands and communications between the Parties shall be deemed sufficiently given if delivered to the principal offices of the City or Developer, as applicable, by (i) personal service, or (ii) express mail, Federal Express, or other similar overnight mail or courier service, regularly providing proof of delivery, or (iii) certified mail, postage prepaid, return receipt requested. Such notice shall be addressed as follows:
To City:
City of Santa Monica
1685 Main Street, Room 204
Santa Monica, CA 90401
Attention: City Manager
With a copy to:
City of Santa Monica
1685 Main Street, Mail Stop 28
Santa Monica, CA 90401
Attn: Community Development Department Director
To Developer:
OCEAN AVENUE PARTNERS, LLC and BELLE VUE PLAZA
c/o Worthe Real Estate Group
100 Wilshire Boulevard, Suite 1600
Santa Monica, CA 90401
Attn: Jeff Worthe
72 With a copy to:
Harding Larmore Kutcher & Kozal, LLP
1250 Sixth Street, Suite 200
Santa Monica, California 90401
Attn: Paula J. Larmore
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 Project Site 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 in accordance with Article 13. 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 and any Secured Lender 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 73 claimed Breach, and (d) whether or not, to the knowledge of the responding Party, any event has occurred or failed to occur which, with the passage of time or the giving of notice, or both, would constitute an Event of Monetary Default or an Event of Non-Monetary Default and, if so, specifying each such event. A Party receiving a request for an Estoppel Certificate shall execute and return such Certificate within thirty (30) days following the receipt of the request therefor. If the party receiving the request hereunder does not execute and return the certificate in such 30- day period and if circumstances are such that the Party requesting the notice requires such notice as a matter of reasonable business necessity, the Party requesting the notice may seek a second request which conspicuously states “FAILURE TO EXECUTE THE REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE DEVELOPMENT AGREEMENT” and which sets forth the business necessity for a timely response to the estoppel request. If the Party receiving the second request fails to execute the Estoppel Certificate within such 15-day period, it shall be conclusively deemed that the Agreement is in full force and effect and has not been amended or modified orally or in writing, and that there are no uncured defaults under this Agreement or any events which, with passage of time of giving of notice, of both, would constitute a default under the Agreement. The City Manager shall have the right to execute any Estoppel Certificate requested by Developer under this Agreement. The City acknowledges that an Estoppel Certificate may be relied upon by any Property Transferee, Secured Lender or other party. The Estoppel Certificate shall be provided in lieu of zoning compliance letters authorized pursuant to SMMC Section 9.38.020(E), or any successor thereto.
15.7 Time. Time is of the essence for each provision of this Agreement of which time is an element.
15.8 Excusable Delays.
15.8.1 In addition to any specific provisions of this Agreement, nonperformance 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, pandemic, 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 EIR, 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;
74 (d) The institution of a referendum pursuant to Government Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter, modify or amend the ordinance adopted by the City Council approving and implementing this Agreement; (e) Inability to secure necessary labor, materials or tools, due to strikes, lockouts, or similar labor disputes or due to a global pandemic; (f) The occurrence of two or more quarters of Revenue per Average Room (“RevPAR”) declines of seven and one-half percent (7.5%) or more in the aggregate (versus the corresponding periods in the previous calendar year) in the STAR Report published by STR, Inc. for the competitive set (which, in addition to the Miramar, includes Viceroy, Shutters, Casa Del Mar, Loews, Le Merigot and Ritz-Carlton Marina del Rey) (“Severe Economic Shock”); and/or
(g) 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, pandemic, earthquakes, fires, casualties, acts of God, Severe Economic Shock 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, without regard to any choice of law provisions thereof.
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, the Environmental Impact Report for the Project, and/or any other City approvals contemplated by 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’ 75 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. Parties shall cause this Agreement to be recorded against title to the Project Site in the Official Records of the County of Los Angeles in accordance with California Government Code Section 65868.5. 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 Project Site including, without limitation, applying for issuance of a Coastal Development Permit(s) by the California Coastal Commission. 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:
76 (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 Project Site once issued by the City provided that the development of the Project or the Project Site is in accordance with such approval. Any revocation or subsequent disapproval by the City shall state in writing the reasons why the development of the Project or the Project Site is not deemed to be in accordance with such approval 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 Project Site, the City shall not delay or stop the development, processing or construction of the Project Site, or issuance of the City Technical Permits, unless the third party obtains a court order preventing the activity. The City shall not stipulate to or fail to oppose the issuance of any such order. Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8(c), after service on the City or Developer of the initial petition or complaint challenging this Agreement or the Project, the Developer may apply to the Community Development Director for a tolling of the applicable deadlines for Developer to otherwise comply with this Agreement. The Community Development Director may approve such tolling, consistent with the standard in Section 15.27, for up to five years during the pendency of the litigation and shall provide Developer with notice of his or her decision on the tolling request within forty (40) days of receiving Developer’s request.
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 Jurisdiction and 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. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
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 Project Site
Exhibit “B” Project Plans
77 Exhibit “C” SMMC Article 9 (Planning and Zoning)
Exhibit “D” Mitigation Measures and Conditions of Approval Exhibit “E-1” Conditions of Approval to Dispense Alcohol at Restaurants Exhibit “E-2” Hotel Conditions of Approval to Dispense Alcohol Exhibit “F” Bonded Scope of Preservation Work
Exhibit “G” Publicly-Accessible Open Space
Exhibit “H” Transportation Demand Management Plan
Exhibit “I-1” Local Hiring Program for Construction
Exhibit “I-2” Local Hiring for Permanent Employment
Exhibit “J” Construction Mitigation Plan
Exhibit “K” Permitted Fees and Exactions
Exhibit “L” Design Review Diagram
Exhibit “M” Form of Assignment and Assumption Agreement Exhibit “N” Form of First Court Alley License and Pedestrian Mall Maintenance Agreement
Exhibit “O” Form of Re-Routed First Court Alley Easement Agreement Exhibit “P” Form of Deed Restriction for Affordable Housing Units Except as to the Project Plans, 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 Project Site in the official records of Los Angeles County, California. Such Certificate of Performance is not a notice of completion as referred to in California Civil Code Section 3093.
15.20 Interests of Developer. Developer represents to the City that, as of the Effective Date, it is the owner of the entire Project Site, subject to encumbrances, easements, covenants, conditions, restrictions, and other matters of record.
78 15.21 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and Developer. During the Term of this Agreement, clarifications to this Agreement and the Existing Regulations may be appropriate with respect to the details of performance of the City and Developer. If and when, from time to time, during the term of this Agreement, the City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by the City and Developer, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by the City and Developer. Operating memoranda are not intended to and cannot constitute an amendment to this Agreement but mere ministerial clarifications, therefore public notices and hearings shall not be required for any operating memorandum. The City Attorney shall be authorized, upon consultation with, and approval of, Developer, to determine whether a requested clarification may be effectuated pursuant to the execution and delivery of an operating memorandum or whether the requested clarification is of such character to constitute an amendment of this Agreement which requires compliance with the provisions of Section 8.1 above. The authority to enter into such operating memoranda is hereby delegated to the City Manager and the City Manager is hereby authorized to execute any operating memoranda hereunder without further action by the City Council.
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer.
15.22.1 Developer’s Faithful Performance. The Parties acknowledge and agree that Developer’s faithful performance in developing the Project on the Project Site 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 Project Site, and further acknowledges that the consideration is necessary to mitigate the direct and indirect impacts caused by Developer on the Project Site.
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 Waiver of Protest. Developer acknowledges and agrees that by executing this Agreement, Developer waives any and all claims and rights, if any, under Government Code Section 66020 to protest fees, dedications, reservations, or exactions required by this Agreement (hereinafter “exactions”), including the City’s right to request and receive the exaction pursuant to this Agreement, the total exaction amount if specified by the Agreement, and the formula for subsequently calculating exactions if the formula is established by the Existing Regulations.
Notwithstanding the above, if the amount of any exaction is not expressly set forth in this Agreement, Developer reserves the right to protest the subsequent calculation of this amount. 79 15.24 Not a Public Dedication. Nothing in this Agreement shall be deemed to be a gift or dedication of the Project Site, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Developer shall have the right to prevent or prohibit the use of the Project Site, or the Project, or any portion thereof, including common areas and building and improvements located thereon, by any person for any purpose inimical to the development of the Project, including without limitation to prevent any person or entity from obtaining or accruing any prescriptive or other right to use the Project Site or the Project. Any portion of the Project Site to be conveyed to the City by Developer as provided in this Agreement, shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and the City shall not take or permit to be taken (if within the power or authority of the City) any action or activity with respect to such portion of the Project Site that would deprive Developer of the material benefits of this Agreement or would materially and unreasonably interfere with the development of the Project as contemplated by this Agreement.
15.25 Other Agreements. The City acknowledges that certain additional agreements may be necessary to effectuate the intent of this Agreement and facilitate development of the Project. The City Manager is hereby authorized to prepare, execute, and record those additional agreements.
15.26 Severability and Termination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law which becomes effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement.
15.27 Community Development Director Approval. Whenever this Agreement requires Community Development Director review and approval, such review and approval shall be undertaken in good faith and with due diligence and shall not be unreasonably withheld, conditioned or delayed.
15.28 City Manager Approval. Whenever this Agreement requires City Manager review and approval, such review and approval shall not preclude the City Manager from consulting with the City Council before rendering an approval.
[The remainder of this page is intentionally left blank.] 80 This Agreement is executed by the Parties on the date first set forth above and is made effective on and as of the Effective Date.
DEVELOPER:
BELLE VUE PLAZA,
a California limited partnership
By: ________DRAFT_______________
Name: __________________________
Title: ___________________________
OCEAN AVENUE PARTNERS, LLC,
a Delaware limited liability company
By: ________DRAFT_______________
Name: __________________________
Title: ___________________________
CITY:
CITY OF SANTA MONICA,
a municipal corporation
By: ________DRAFT_______________
Name: ___________________________
Title: _____________________________
ATTEST:
By: ________DRAFT_______________
Name: ______________________________
City Clerk
APPROVED AS TO FORM:
By: ________DRAFT_______________
Name: ______________________________
City Attorney
Exhibit “A”, Page 1
EXHIBIT “A”
LEGAL DESCRIPTION OF PROJECT SITE
Ocean Avenue Parcel
101 Santa Monica Boulevard:
LOTS M, N, O, AND P BLOCK 148 OR THE TOWN OF SANTA MONICA, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 3, PAGES 80 AND 81 AND IN BOOK 39, PAGE 45 ET SEQ., OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
1327 Ocean Avenue:
LOT "S" IN BLOCK 148 OF THE TOWN OF SANTA MONICA, IN THE CITY OF SANTA
MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3 PAGE(S) 80 AND 81, AND IN BOOK 39 PAGE 45 ET. SEQ., OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
1333 Ocean Avenue:
LOT "R" IN BLOCK 148 OF THE TOWN OF SANTA MONICA, IN THE CITY OF SANTA
MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3 PAGE(S) 80 AND 81, AND IN BOOK 39 PAGE 45 ET. SEQ., OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
1337 Ocean Avenue:
LOT "Q" IN BLOCK 148 OF THE TOWN OF SANTA MONICA, IN THE CITY OF SANTA
MONICA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3 PAGE(S) 80 AND 81, AND IN BOOK 39 PAGE 45 ET. SEQ., OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Second Street Parcel
LOTS I, J, K, L, BLOCK 148 OF THE TOWN OF SANTA MONICA, IN THE CITY OF SANTA MONICA, AS PER MAP RECORDED IN BOOK 3, PAGES 80 AND 81 AND IN BOOK 39, PAGE 45 ET SEQ., OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNT
Exhibit “B”, Page 1
EXHIBIT “B”
PROJECT PLANS
[See separate PDF attachments.]
Exhibit “C”, Page 1
EXHIBIT “C”
SMMC ARTICLE 9 (PLANNING AND ZONING)
[To come.]
Exhibit “D”, Page 1
EXHIBIT “D”
MITIGATION MEASURES AND
CONDITIONS OF APPROVAL
SECTION A – MITIGATION MEASURES AND PROJECT DESIGN FEATURES PDF VIS-1: Outdoor Lighting. Outdoor lighting shall not produce obtrusive glare onto the public-right-of-way or adjacent properties, in accordance with Santa Monica Municipal Code (SMMC) Section 9.21.080.
PDF AQ-1: Demolition, Grading and Construction Activities.
1. Compliance with South Coast Air Quality Management District (SCAQMD) Rule 403. The proposed Project shall comply with all applicable standards of the SCAQMD, including the following provisions of Rule 403:
• All unpaved demolition and construction areas shall be wetted at least three times daily during excavation and construction, and temporary dust covers shall be used to reduce dust emissions and meet SCAQMD Rule 403.
• The construction area shall be kept sufficiently dampened to control dust caused by grading and hauling, and at all times provide reasonable control of dust caused by wind.
• All clearing, earth moving, or excavation activities shall be discontinued during periods of high winds (i.e., instantaneous winds speeds greater than 25 miles per hour [mph]), so as to prevent excessive amounts of dust. As an alternative to discontinuing work, compliance with Rule 403, Table 3 control measures may be implemented in accordance with Rule 403 Section (g)(2).
• All dirt/soil loads shall be secured by trimming, watering or other appropriate means to prevent spillage and dust.
• All dirt/soil materials transported off-site shall be either sufficiently watered or securely covered to prevent excessive amount of dust. • General contractors shall maintain and operate construction equipment so as to minimize exhaust emissions.
• Trucks having no current hauling activity shall not idle and be turned off. • Ground cover in disturbed areas shall be replaced as quickly as possible.
2. Compliance with SCAQMD Rule 1113. The Project shall comply with all applicable standards of the SCAQMD, including Rule 1113, which establishes a maximum Volatile Organic Compound (VOC) emissions rate of 50 grams per liter (g/L) for exterior paints and finishes.
3. Anti-Idling Regulation. In accordance with Section 2485 in Title 13 of the California Code of Regulations, the idling of all diesel-fueled commercial vehicles (weighing over 10,000 pounds) during construction shall be limited to five minutes at any location.
Exhibit “D”, Page 2
4. Construction Equipment. If used in connection with construction activities, the following types of equipment shall meet or exceed the U.S. Environmental Protection Agency (USEPA) Tier 4 emission standards:
• Tower cranes;
• Rubber-tired hydraulic cranes as required for specific lifts; • All-terrain rubber-tired forklift and material-handling equipment; • Concrete trucks and hydraulic boom pumps during foundation construction;
• Material deliveries (daily);
• Office trailers and storage containers;
• Light trucks;
• Miscellaneous small tools, compressors, mixers, generators, and portable welding machines; and
• Earthmoving equipment used during excavation.
PDF AQ-2: Emergency Generators. The proposed Project’s emergency generators shall meet the USEPA Tier 4 standard for diesel emissions.
PDF AQ-3: Electric Vehicle (EV) Charging. The proposed Project shall provide EV charging stations and stub outs within the subterranean parking garage pursuant to the requirements of the SMMC.
PDF EN-1: Solar Electric Photovoltaic (PV) System. The proposed Project shall provide a minimum PV solar system for the Project site of at least 2.0 watts/sf of building footprint (approx. 125-kilowatt PV system), pursuant to the requirements of the City of Santa Monica Green Building Code Solar Ordinance.
PDF GHG-1: Sustainable Design Features. The proposed Project will incorporate sustainable design features, which may include the following, or comparable, elements:
• Energy efficient HVAC systems;
• Operable windows;
• High-performance building envelope usage to maximize insulation; • Lighting systems designed with occupancy sensors and dimmers to minimize energy use;
• Water efficient equipment and plumbing infrastructure, including low-flow toilet fixtures in hotel and residences;
• Harvesting of stormwater for landscape irrigation; and • Low-water drought tolerant landscape plant palette.
PDF GHG-2: Construction Waste Management. The proposed Project will implement a construction waste management plan (WMP) to divert a minimum of 70 percent of all mixed construction and demolition (C&D) debris to City certified construction and demolition waste processors, pursuant to SMMC Article 8, Chapter 8.108.
Exhibit “D”, Page 3
PDF GHG-3: Operational Waste Management. The proposed Project will include easily accessible recycling areas dedicated to the collection and storage of nonhazardous materials such as paper, corrugated cardboard, glass, plastics, metals, and landscaping debris (trimmings), consistent with the City’s Zero Waste Strategic Plan.
PDF HYD-1: Stormwater Pollution Prevention Plan (SWPPP). Prior to beginning any construction activities, the Applicant must obtain coverage under the NPDES General Construction Permit by preparing and submitting a Notice of Intent (NOI) and an adequate SWPPP, which shall include:
• Site description addressing the elements and characteristics specific to the site; • Descriptions of BMPs for erosion and sediment controls; • BMPs for construction waste handling and disposal;
• Implementation of approved local plans;
• Proposed post-construction controls, including a description of local postconstruction erosion and sediment control requirements; and • Non-stormwater management.
The SWPPP must also contain a visual monitoring program; a chemical monitoring program for "non-visible" pollutants to be implemented if there is a failure of BMPs; and a sediment monitoring plan if the site discharges directly to a water body listed on the Clean Water Act Section 303(d) List for sediment.
PDF NOI-1: Pile Driving. Pile driving shall not be used for construction of the proposed Project.
PDF T-1: Transportation Demand Management (TDM) Plan. The Applicant shall prepare a TDM Plan that would include trip reduction strategies to reduce singleoccupancy vehicle trips and achieve a 2.2 Average Vehicle Ridership (AVR) target for employees at the Project Site and shall include, at a minimum, the following TDM strategies: unbundled parking, onsite bicycle facilities (i.e., shower, racks, and lockers), transit pass subsidies, and participation in a Transportation Management Association.
MM AQ-1: Super Compliant Coatings. To reduce VOC levels during the architectural coating phase, low VOC-emission paint shall be used with levels of 10 g/L or less (e.g., paints from the SCAQMD’s list of Super Compliant Architectural Coatings, such as Benjamin Moore Natural Odorless, Zero VOC Paint). The Applicant or construction contractor shall also utilize high-pressure low-volume (HPLV) paint applicators with a minimum transfer efficiency of at least 50 percent. The Applicant or construction contractor shall implement additional measures to reduce daily and quarterly VOC levels related to architectural coatings to the extent determined feasible by the City and APCD, such as extending coating applications by limiting daily coating activities. City staff shall ensure measures are depicted on all submitted building and construction plans submitted to City prior to the issuance of building permits. City building inspectors shall ensure compliance.
Exhibit “D”, Page 4
MM CE-1: The Applicant shall prepare, implement and maintain a Construction Impact Mitigation Plan (CIMP) for review and approval prior to issuance of a building permit to address manage traffic during construction and shall be designed to:
• Prevent traffic impacts on the surrounding street network • Minimize parking impacts both to public parking and access to private parking to the greatest extent practicable
• Ensure safety for both those constructing the proposed Project and the surrounding community
• Prevent substantial truck traffic through residential neighborhoods • Provide for coordination with the Metro regarding the Metro layover zone on 2nd Street regarding traffic controls.
• Provide for coordination with adjacent or nearby construction projects The CIMP shall be subject to review and approval by the following City departments: Public Works, Fire, Community Development, and Police to ensure that the Plan has been designed in accordance with this mitigation measure and meets City standards. 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 CIMP 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.
• An Applicant-funded onsite 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 CIMP shall identify the activities that would prompt the presence of an onsite monitor.
• Streets and equipment shall be cleaned in accordance with established Public Works Department requirements.
• Trucks shall only travel on a City-approved construction route. Truck queuing/staging shall not be allowed on City streets. Queuing may occur on the construction site itself to the extent there is space available on the construction site.
Exhibit “D”, Page 5
• Materials and equipment shall be minimally visible to the public; the preferred location for materials is to be onsite, 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.
• A Caltrans transportation permit shall be obtained for any transportation of heavy construction equipment and/or materials on state highways. • Vehicles hauling dirt and sediment materials on- and off-site must cover said materials in plastic coverings to prevent unplanned spills.
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 CIMP). • 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-ofway. • The Applicant shall provide timely notification of construction schedules to all affected agencies (e.g., Big Blue Bus, Metro, Police Department, Fire Department, Public Works Department, and Community Development Department), and 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 2 weeks per each submittal. Coordination with Metro regarding construction activities that may impact Metro bus lines (e.g., Metro layover zone) or result in closures lasting over 6 months shall be initiated at least 30 days in advance of construction activities.
The Applicant shall obtain Mobility Division approval of any haul routes for earth, concrete, or construction materials and equipment hauling.
MM-CR-1: The Applicant shall implement and comply with all of the measures from the Historic Resources Technical Report – Ocean Avenue Project (2020) prepared by Ostashay & Associates Consulting (see Appendix E). These measures shall be formalized as a part of the Development Agreement Process, identified in all final site plans, and implementation shall be confirmed by the City prior to the issuance of any permit, demolition, abatement, grading/excavation, relocation, or rehabilitation work the two City-designated Landmark.
Exhibit “D”, Page 6
1. Archival Recordation Documentation. Prior to the issuance of any permit, demolition, abatement, grading/excavation, relocation, or rehabilitation work the two City- designated Landmarks onsite, the Applicant shall have prepared recordation documents similar in format and content to an Historic American Buildings Survey (HABS) Level III recordation document.
2. Preparation of a Preservation-Protection Plan. The Applicant shall develop a Preservation-Protection Plan to support conformance with applicable The Secretary of the Interior’s Standards for the Treatment of Historic Properties.
At a minimum, a Preservation-Protection Plan shall be prepared for the two historic buildings and their associated character-defining features.
3. Historic Preservation Professional Oversight. Final site plans for the two City- designated Landmark buildings onsite shall be developed in coordination with a qualified historic preservation professional.
4. Santa Monica Landmarks Commission. The Applicant shall obtain a Certification of Appropriateness (or equivalent approval pursuant to the Development Agreement) issued by City Landmarks Commission.
5. Compliance with The Secretary of the Interior’s Standards for the Treatment of Historic Properties. Any maintenance, repair, stabilization, rehabilitation, relocation, preservation, conservation, or reconstruction proposed for any exterior portion of the City-designated Landmark Buildings shall comply with The Secretary of the Interior’s Standards for the Treatment of Historic Properties.
6. California Historic Building Code Compliance. Where applicable, any work for code mitigations such egress, fire safety, railing heights, door widths, ADA accessibility, etc. shall utilize and follow the perspective code of the California Historical Building Code and the relevant guidelines specific in The Secretary of the Interior’s Standards for the Treatment of Historic Properties and NPS briefs, bulletins, references and guidelines.
7. Seismic Retro-Fit Plans and Reviews. Any and all seismic plans to stabilize and retro- fit the two City-designated Landmark buildings shall be prepared for the proposed Project and shall comply with the California Historical Building Code and the relevant guidelines specific in The Secretary of the Interior’s Standards for the Treatment of Historic Properties Standards and NPS briefs, bulletins, references and guidelines. Such plans shall be reviewed and approved by the historic preservation consultant for compliance with The Secretary of the Interior’s Standards for the Treatment of Historic Properties prior to formal submittal to the City for review, plan check, and building and safety review.
8. Project Plans and Reviews. Any and all project plans, including but not limited to architectural, structural, mechanical, relocation, landscape plans shall be prepared by the Applicant and reviewed and approved by the qualified historic preservation professional for compliance with The Secretary of the Interior’s Standards for the Treatment of Historic Properties prior to formal submittal to the City for design review, plan check and building and safety review.
Exhibit “D”, Page 7
9. Historic Material Replacement. In compliance with The Secretary of the Interior’s Standards for the Treatment of Historic Properties Standards, in cases where the project would replace a distinctive historic feature or material, the new feature shall match the old in design, type, color, texture, profile, material, and overall appearance. Consistent with The Secretary of the Interior’s Standards for the Treatment of Historic Properties, all such work shall be accurately reproduced based on historical, pictorial, and physical documentation and evidence. Such replacement of features shall be supported by investigations and studies conducted as part of the Preservation-Protection Plan prepared for this project.
10. Compatible New Construction. As the current site plans are considered conceptual and such plans have not yet been finalized, it is possible that final site plan could include elements that would result in a potentially significant impact to the historic resources onsite. Therefore, for any new construction proposed, the historic preservation consultant shall consult with the Applicant team during the entire design process to insure that the new permanent built forms are compatible with the historic qualities and characteristics of the historic buildings located within and adjacent to the Project site.
11. Relocation/Construction Monitoring. The Preservation-Protection Plan requires the Applicant to retain a qualified historic preservation professional with at least 7 years of relevant experience who satisfies the Secretary of the Interior’s Professional Qualification Standards for History, Architectural History, and/or Architecture pursuant to 36 CFR Part 61, to provide guidance and oversight for the preservation, relocation, and rehabilitation of the two City-designated Landmark buildings onsite. Once the project has been approved and entitled, the historic preservation professional shall conduct onsite construction monitoring during the relocation, demolition, excavation, and construction phases of the project.
12. Vibration Impact Measures and Monitoring Assessments. in coordination with the City and qualified historic preservation professional the Applicant shall assure avoidance of vibration impacts to such resources and their associated character- defining features, as identified in the Preservation-Protection Plan, by preparing a pre-construction vibration survey report and post-construction damage assessment survey report. These reports shall be prepared by a qualified structural engineer with qualifications in completed historic preservation projects that conformed to The Secretary of the Interior’s Standards for the Treatment of Historic Properties. These reports shall be submitted to the City for review and approval prior to initiating any type of construction work activity onsite (pre-construction vibration survey report) and upon completion of such work (post-construction damage assessment survey report).
13. Shoring Impact Prevention. To ensure the protection of the onsite historic resources during shoring and excavation, the Preservation-Protection Plan shall describe the methodology for stabilizing and disconnecting both City Landmarks from their existing foundations, placing them on temporary support structures, and transferring them to a safe location on the Project site Exhibit “D”, Page 8
such as the 101 Santa Monica Boulevard property before excavation is commenced. After the two Landmarks are placed on their permanent foundations, excavation would occur under and around them for construction of the basement level of the Cultural Uses Campus and subterranean parking.
This aspect of the Preservation-Protection Plan shall reference guidance from the publication of the National Park Service by John Obed Curtis entitled, Moving Historic Buildings. The Preservation-Protection Plan shall describe protective measures and monitoring that would be taken to anticipate and prevent increased dust, vibration, and fire risk to the two Landmark buildings consistent with “Temporary Protection, Tech Note No. 3, Protecting a Historic Structure during Adjacent Construction,” published by the Technical Preservation Services, National Park Service. The Preservation-Protection Plan shall also include a construction employee training program that emphasizes protection of historic resources for all construction workers involved.
14. Unanticipated Discoveries. The Applicant should be aware of the possible encounter of unanticipated discoveries on site upon implementation of the proposed Project, particularly during excavation, grading, demolition, and relocation activities. In the event that any unusual or distinctive architectural features associated with the design or use of the Landmark buildings are encountered during site preparation, grading, demolition, excavation, relocation, or construction activities around the two sites work shall be immediately stopped and relocated from that area until it can be assessed by the City or qualified onsite historic preservation consultant. Such features, if determined to be important character-defining features of either building, it shall be assessed, possibly salvaged, and reused in the project as directed by the preservation consultant in coordination with the Applicant and City staff.
15. Interpretive Educational Program. To assist the public in understanding the historical, cultural, and architectural significance of the City-designated Landmarks commemorative interpretive signage, displays, and/or plaques shall be created and incorporated into the Project site, particular as part of the Cultural Use Campus. The displays, signage, plaques and exhibits created for the site may incorporate salvaged “period appropriate” items from the historic buildings and any historical information, photographs, postcards, plans and illustrations, maps and brochures, etc. of the buildings, Ocean Avenue, the downtown commercial area in a creative medium accessible or visible to the public. The Applicant, in coordination with the historic preservation professional shall prepare a technical memorandum detailing the historic interpretive program (exhibits) requirements, conceptual design and content, and implementation schedule. This memorandum shall be reviewed by the City Landmarks Commission staff liaison, the Landmarks Commission and other interested parties, and shall be prepared to the satisfaction of the City of Santa Monica. The Applicant shall submit quarterly reports (i.e. January, April, July, and October) prepared by the historic preservation professional to the City Landmarks Commission staff liaison documenting the progress of the historic interpretive project (exhibits) implementation plan.
Exhibit “D”, Page 9
MM CR-2: Archaeological Construction Monitoring. Archaeological monitoring shall be conducted by a qualified professional archaeologist familiar with the types of prehistoric and historic-period archaeological resources that could be encountered within the Project site. All grading, excavation, trenching, and site preparation including vegetation removal between 2 and 6 feet bgs and existing fill soils shall be monitored. A monitoring program shall be developed and implemented prior to the commencement of construction activities to ensure the effectiveness of monitoring.
DCP MM CR-3a: Archaeological Data Recovery: For projects that inadvertently discovered buried prehistoric or historic-period archaeological resources the City shall apply a program that combines resource identification, significance evaluation, and mitigation efforts into a single combined effort. This approach would combine the discovery of deposits (Phase 1), determination of significance and assessment of the project’s impacts on those resources (Phase 2), and implementation of any necessary mitigation (Phase 3) into a single consolidated investigation. This approach must be driven by a Treatment Plan that sets forth explicit criteria for evaluating the significance of resources discovered during construction and identifies appropriate data recovery methods and procedures to mitigate project effects on significant resources. The Treatment Plan shall be prepared prior to issuance of building permits by a Registered Professional Archaeologist (RPA) who is familiar with urban historical resources, and at a minimum shall include:
• A review of historic maps, photographs, and other pertinent documents to predict the locations of former buildings, structures, and other historical features and sensitive locations within and adjacent to the specific development area;
• A context for evaluating resources that may be encountered during construction;
• A research design outlining important prehistoric and historic-period themes and research questions relevant to the known or anticipated sites in the study area;
• Specific and well-defined criteria for evaluating the significance of discovered remains; and
• Data requirements and the appropriate field and laboratory methods and procedures to be used to treat the effects of the project on significant resources.
The Treatment Plan shall also provide for a final technical report on all cultural resource studies and for curation of artifacts and other recovered remains at a qualified curation facility, to be funded by the developer. To ensure compliance with City and State preservation laws, this plan shall be reviewed and approved by the Historic Landmarks Commission and the City of Santa Monica Planning Division prior to issuance of building permits.
DCP MM CR-3b: Inadvertent Discoveries: In the event of any inadvertently discovered prehistoric or historic-period archaeological resources during construction, the developer shall immediately cease all work within 50 feet of the discovery. The Exhibit “D”, Page 10
proponent shall immediately notify the City of Santa Monica Planning and Community Development Department and shall retain a Registered Professional Archaeologist (RPA) to evaluate the significance of the discovery prior to resuming any activities that could impact the site. If the archaeologist determines that the find may qualify for listing in the California Register, the site shall be avoided, or a data recovery plan shall be developed pursuant to MM CR-3a. Any required testing or data recovery shall be directed by a RPA prior to construction being resumed in the affected area. Work shall not resume until authorization is received from the City.
DCP MM CR-4a: Paleontological Monitoring. Construction activities involving excavation or other soil disturbance to a depth greater than 6 feet within Downtown shall be required to retain a qualified Paleontological Monitor as defined by the Society for Vertebrate Paleontology (SVP) (2010) equipped with necessary tools and supplies to monitor all excavation, trenching, or other ground disturbance in excess of 6 feet deep. Monitoring will entail the visual inspection of excavated or graded areas and trench sidewalls. In the event that a paleontological resource is discovered, the monitor will have the authority to temporarily divert the construction equipment around the find until it is assessed for scientific significance and collected if necessary.
The Paleontological Monitor will periodically assess monitoring results in consultation with the Principal Paleontologist. If no (or few) significant fossils have been exposed, the Principal Paleontologist may determine that full-time monitoring is no longer necessary, and periodic spot checks or no further monitoring may be recommended. The City shall review and approve all such recommendations prior to their adoption and implementation.
DCP MM CR-4b: Inadvertent Discovery of Fossils. If fossils are discovered during excavation, the Paleontological Monitor will make a preliminary taxonomic identification using comparative manuals. The Principal Paleontologist or his/her designated representative then will inspect the discovery, determine whether further action is required, and recommend measures for further evaluation, fossil collection, or protection of the resource in place, as appropriate. Any subsequent work will be completed as quickly as possible to avoid damage to the fossils and delays in construction schedules. If the fossils are determined to be significant under CEQA, but can be avoided and no further impacts will occur, the fossils and locality will be documented in the appropriate paleontological resource records and no further effort will be required. At a minimum, the paleontological staff will assign a unique field number to each specimen identified; photograph the specimen and its geographic and stratigraphic context along with a scale near the specimen and its field number clearly visible in close-ups; record the location using a GPS with accuracy greater than 1 foot horizontally and vertically (if such equipment is not available at the site, use horizontal measurements and bearing[s] to nearby permanent features or accurately surveyed benchmarks, and vertical measurements by sighting level to point[s] of known elevation); record the field number and associated specimen data (identification by taxon and element, etc.) Exhibit “D”, Page 11
and corresponding geologic and geographic site data (location, elevation, etc.) in the field notes and in a daily monitoring report; stabilize and prepare all fossils for identification, and identify to lowest taxonomic level possible by paleontologists, qualified and experienced in the identification of that group of fossils; record on the outside of the container or bag the specimen number and taxonomic identification, if known. Breathable fabric bags will be used in packaging to avoid black mold.
Upon completion of fieldwork, all significant fossils collected will be prepared in a properly equipped paleontology laboratory to a point ready for curation.
Preparation will include the careful removal of excess matrix from fossil materials and stabilizing and repairing specimens, as necessary. Following laboratory work, all fossils specimens will be identified to the lowest taxonomic level, cataloged, analyzed, and delivered to an accredited museum repository for permanent curation and storage. The cost of curation is assessed by the repository and is the responsibility of the Project proponent.
At the conclusion of laboratory work and museum curation, a final report shall be prepared describing the results of the paleontological mitigation monitoring efforts associated with the Project. The report will include a summary of the field and laboratory methods, an overview of the Project area geology and paleontology, a list of taxa recovered (if any), an analysis of fossils recovered (if any) and their scientific significance, and recommendations. If the monitoring efforts produced fossils, then a copy of the report will also be submitted to the designated museum repository.
DCP MM HAZ-2a.a: Asbestos-Containing Materials (ACM), Lead-Based Paints (LBP), polychlorinated biphenyls (PCBs), and Molds. Prior to any the issuance of a demolition permit, the Applicant shall conduct a comprehensive survey of ACM, LBP, PCBs, and molds. If such hazardous materials are found to be present, the applicant shall follow all applicable local, state and Federal codes and regulations, as well as applicable best management practices, related to the treatment, handling, and disposal of ACM, LBP, PCBs, and molds to ensure public safety.
DCP MM HAZ-2a.b: Potential Onsite Hazardous Materials or Conditions. A visual survey and reconnaissance-level investigation of the existing site shall be conducted to determine if there are any structures or features within or near the buildings that are used to store, contain, or dispose of hazardous materials. For any development within the Downtown area that has not been subject to a Phase I ESA or successful remediation efforts in the past, a Phase I ESA shall be performed to determine the likelihood of contaminants in areas beyond what has already been assessed in accordance with ASTM E 1527-05 as may be amended. If the Phase I ESA finds that contaminated soil is suspected to be present within any building excavation footprint or open space area, the Applicant shall perform soil sampling and analysis to determine the extent of contamination. If contaminants are detected in soil at or above regulatory levels, then the results of the soil sampling shall be reviewed and acted upon by the SMFD or the Planning Department and other regional or state regulatory agencies as needed.
Exhibit “D”, Page 12
DCP MM HAZ-2c: Discovery of Contamination. In the event that previously unknown or unidentified soil and/or groundwater contamination that could present a threat to human health or the environment is encountered during construction at a development site, construction activities in the immediate vicinity of the contamination shall cease immediately. A qualified environmental specialist (e.g., a licensed Professional Geologist [PG], a licensed Professional Engineer [PE] or similarly qualified individual) shall conduct an investigation to identify and determine the level of soil and/or groundwater contamination. If contamination is encountered, a Human Health Risk Management Plan shall be prepared and implemented that: (1) identifies the contaminants of concern and the potential risk each contaminant would pose to human health and the environment during construction and post-development; and (2) describes measures to be taken to protect workers, and the public from exposure to potential site hazards. Such measures could include a range of options, including, but not limited to, physical site controls during construction, remediation, long-term monitoring, postdevelopment maintenance or access limitations, or some combination thereof.
Depending on the nature of contamination, if any, appropriate agencies shall be notified (e.g., SMFD). If needed, a Site Health and Safety Plan that meets Occupational Safety and Health Administration requirements shall be prepared and in place prior to commencement of work in any contaminated area.
DCP MM HAZ-2d: Soils Management Plan: For project sites with onsite soil contamination, prior to approval of the first grading plan or issuance of the first demolition permit, whichever occurs first, the project Applicant shall submit a soils management plan and a transportation plan to the appropriate cleanup agency (e.g., Los Angeles RWQCB, DTSC, SMFD) for review and approval. The soils management plan and transportation plan shall include the following tasks.
Soils Management Plan
Affected soils shall be either directly loaded into awaiting trucks for immediate offsite disposal or temporarily stockpiled on plastic sheeting prior to load-out and offsite disposal. If temporarily stockpiled, soil removed from the excavations shall be placed next to or as close as possible to the excavation from which it came.
Prior to load-out, the construction contractor shall prepare waste profiles and example waste manifests for approval by the receiving facilities. Soil and material segregation, stockpile handling, truck loading, and storm water management practices shall be followed during the remedial action according to the following.
Soil and Material Segregation
Overburden soils shall be screened with an organic vapor analyzer (OVA) in accordance with SCAQMD Rule 1166. Any significant quantities of construction debris encountered during excavation shall be segregated and disposed of in accordance with Federal, State, and local regulations. Soil cuttings during the installation of soldier piles shall be disposed of offsite with any affected soils from the deep excavation.
Stockpile Management
• The stockpiled soils for load-out shall be segregated by waste classification:
Exhibit “D”, Page 13
• Nonhazardous waste.
• VOC-contaminated nonhazardous waste with OVA readings greater than 50 parts per million (ppm) but less than 1,000 ppm.
• VOC-contaminated nonhazardous waste with OVA readings of 1,000 ppm or greater. These soils shall be immediately sprayed with water or suppressant and placed in a sealed container (roll-off bin) or directly loaded into a suitable transport truck, moistened with water, and covered with a tarp for offsite transportation to the appropriate disposal facility, as specified in the SCAQMD Rule 1166 Mitigation Plan.
The temporary stockpiles containing affected soils shall be managed as follows:
• The temporary stockpiles for non-VOC contaminants shall be placed on plastic sheeting and kept moist during working hours and covered with plastic sheeting at the end of the day to control dust.
• The VOC-contaminated stockpiles shall be placed on plastic sheeting and immediately covered with plastic sheeting. The edges of the plastic shall have an overlap of at least 24 inches. The plastic shall be secured at the base of the stockpile and along the seams of overlapping plastic sheeting with sandbags or equivalent means. The stockpiles shall remain covered until load-out. • Daily inspections of the stockpiles shall be conducted to verify the integrity of the stockpile covers. Any gaps, tears, or other deficiencies shall be corrected immediately. Daily records shall be kept of stockpile inspections and any repairs made.
• If necessary, commercial vapor suppressants and sealants shall be prepared and applied to VOC-contaminated soil in accordance with the manufacturer’s recommendations.
• During stockpile generation and removal, only the working face of the stockpile shall be uncovered.
Decontamination Methods and Procedures
Each piece of equipment used for the excavation of affected soils shall have a clean-out bucket or continuous edge across the cutting face of its bucket. No excavation of affected soil shall be permitted with equipment utilizing teeth across the cutting edge of its bucket.
Entry to the contaminated areas (i.e., work exclusion zones) shall be limited to avoid unnecessary exposure and related transfer of contaminants. In unavoidable circumstances, any equipment or truck(s) that come into direct contact with affected soil shall be decontaminated to prevent the onsite and offsite distribution of contaminated soil. The decontamination shall be conducted within a designated area by brushing off equipment surfaces onto plastic sheeting. Trucks shall be visually inspected before leaving the site, and any dirt adhering to the exterior surfaces shall be brushed off and collected on plastic sheeting. The storage bins or beds of the trucks shall be inspected to ensure the loads are properly covered and secured. Excavation equipment surfaces shall also be brushed off prior to removing the equipment from contaminated areas.
Movement of affected soils from the excavation area to temporary stockpiles shall be conducted using enclosed transfer trucks, if possible. If affected soils must be moved within an open receptacle (e.g., loader bucket), the travel path for the Exhibit “D”, Page 14
loader shall be scraped following this activity, with scraped soils placed in the temporary stockpile for load-out.
Sampling equipment that comes into direct contact with potentially contaminated soil or water shall be decontaminated to assure the quality of samples collected and/or to avoid cross-contamination. Disposable sampling equipment intended for one-time use shall not be decontaminated, but shall be packaged for appropriate offsite disposal.
Decontamination shall occur prior to and after each designated use of a piece of sampling equipment, using the following procedures:
• Non-phosphate detergent and tap-water wash, using a brush if necessary. • Tap-water rinse.
• Initial deionized/distilled water rinse.
• Final deionized/distilled water rinse.
Truck Loading
Trucks may be loaded directly from the excavation or temporary stockpile based on truck availability and excavation logistics. Trucks shall be routed, and stockpile areas shall be located so as to avoid having trucks pass through impacted areas. The truckloads shall be wetted and tarped prior to exiting the site.
All soil hauled from the site shall comply with the following:
• Materials shall be transported to an approved treatment/disposal facility. • No excavated material shall extend above the sides or rear of the truck/trailer. • Trucks/trailers carrying affected soils shall be completely tarped/covered to prevent particulate emissions to the atmosphere. Prior to covering/tarping, the surface of the loaded soil shall be moistened.
• The exterior of the trucks/trailers shall be cleaned off prior to leaving the site to eliminate tracking of material offsite.
Storm Water Management
The good housekeeping practices prescribed in the City’s Urban Runoff Mitigation Plan (SMMC Section 7.10.060) shall be implemented during soil excavation activities to contain and control storm water runoff that might convey contaminated or excessive sediments. If rainfall is expected, the areas around open excavations shall be graded and bermed to prevent storm water from flowing into the excavation. Any standing water that collects in the bottom of the excavations shall be removed and handled in accordance with Federal, State, and local regulations. The water shall be sampled and analyzed either as standing water in the excavation or following containment in a temporary above-ground storage tank. Depending on the volume of water and the sampling results, options for handling the standing water could include:
• Pumping the standing water into temporary above-ground storage tanks for reuse onsite for dust suppression.
• Pumping the standing water through filters and a carbon adsorption filter (if required based on analytical results) prior to discharge to a storm drain, subject to approval by the City of Santa Monica Water Resources Protection Programs Division.
• Pumping the standing water into vacuum trucks for transport and disposal at a recycling facility.
Exhibit “D”, Page 15
Transportation Plan
All affected soils shall be transported offsite for lawful management and disposal.
Prior to load-out, the construction contractor shall prepare waste profiles for the receiving facility using analytical data from the previous environmental site assessment.
MM NOI-1: Construction Noise Management Plan. A Construction Noise Management Plan shall be prepared by the applicant 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 the 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:
o 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.
o The Applicant and its contractors and subcontractors shall place noisegenerating construction equipment and locate construction staging areas away from sensitive uses, where feasible, to the satisfaction of the Department of Building and Safety.
o 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 site, 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 Project’s 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 Project’s construction documents, which shall be reviewed by the City prior to issuance of a grading permit.
MM NOI-2: To reduce the potential for construction-related vibration effects to structures, prior to the issuance of a building permit, the Applicant shall perform an inventory of the structural condition of the onsite City-designated Landmarks at Exhibit “D”, Page 16
1333 Ocean Avenue and 1337 Ocean Avenue as well as the offsite Citydesignated Landmark at 1323 Ocean Avenue. Based on a survey of the building’s structural condition, a vibration specialist will determine the appropriate Caltrans vibration structural damage potential criteria, and for each piece of equipment, assess a standoff distance from the building. The construction contractor(s) shall restrict the use of vibration-generating equipment, within the minimum applicable standoff distances to not exceed the building’s applicable structural damage criteria. If the vibration- generating construction equipment is required to be used within these minimum applicable distances, the construction contractor(s) shall implement one of the following measures:
a. Restrict the use of large bulldozers and other similarly large vibrationgenerating equipment, so that the vibration-generating portion of the equipment (i.e., the motor, engine, power plant, or similar) remains at the minimum standoff distances unless it can be demonstrated to the satisfaction of the City based on
in-situ measurements (prior to initiation of full-scale construction activities) that vibration levels can be kept below the applicable structural damage potential criteria, as determined by the vibration specialist, through any combination of revised setbacks, alternative equipment and methods, alternative sequencing of activities, or other vibration-reducing techniques. b. Install and maintain at least one continuously operational automated vibrational monitor on the side of the building facing the construction activity and capable of being programmed with two predetermined vibratory velocities levels: a first- level alarm equivalent to 0.05 in/sec PPV less than the appropriate Caltrans vibration structural damage potential criteria and a regulatory alarm level equivalent to the Caltrans vibration structural damage potential criteria. The monitoring system must produce real-time specific alarms (via text message and/or email to onsite personnel) when velocities exceed either of the predetermined levels. In the event of a first-level alarm, feasible steps to reduce vibratory levels shall be undertaken, including but not limited to halting/staggering concurrent activities and utilizing lowervibratory techniques. In the event of an exceedance of the regulatory level, work in the vicinity of the affected building shall be halted and the building visually inspected for damage. Results of the inspection must be logged. In the event damage occurs, such damage shall be repaired. For the offsite Gussie Moran House and onsite historic City-designated Landmarks at 1333 Ocean Avenue and 1337 Ocean Avenue, and the offsite City- designated Landmark at 1323 Ocean Avenue such repairs shall be conducted in consultation with a qualified preservation consultant and, if warranted, in a manner that meets the Secretary of the Interior’s Standards. For the offsite Gussie Moran House, the contractor may also locate the vibration monitors on or near the Project Site if access to the offsite Gussie Moran House is restricted, in which case the first level and regulatory alarm shall be adjusted to an equivalent level accounting for the vibration attenuation rate based on the distance to the offsite building.
The Project Applicant shall use good faith efforts to secure the voluntary Exhibit “D”, Page 17
cooperation of the owner of the Gussie Moran House in allowing the Project Applicant to comply with the requirements of this mitigation measure.
MM TCR-1: Native American Construction Monitoring Prior to issuance of demolition permit, a Native American tribal monitor from the Gabrieleño Band of Mission Indians – Kizh Nation shall be retained by the Applicant. The appropriate Native American monitor shall be selected based on consultation under AB 52 and shall be identified on the most recent contact list provided by the Native American Heritage Commission. The Native American monitor shall be present during construction excavations such as clearing/grubbing, grading, trenching, or any other construction excavation activity associated with the project. The frequency of monitoring shall consider the rate of excavation and grading activities, proximity to known archaeological resources, the materials being excavated (e.g., younger alluvium versus older alluvium), and the depth of excavation, and if found, the abundance and type of prehistoric archaeological resources encountered. Full-time field observation shall be reduced to part- time inspections or ceased entirely if determined appropriate by the Gabrieleño Band of Mission Indians – Kizh Nation.
MM WW-1: Sewer Study and Monitoring. Prior to the issuance of the first building permit, the applicant shall submit a sewer study to the City's Water Resources Manager that shows that the City's sewer system can accommodate the entire development (i.e., would not result in d/D over 0.5). If the study does not show to the satisfaction of the City that the City's sewer system can accommodate the entire development, prior to issuance of the first building permit, the Developer shall be responsible to upgrade any downstream deficiencies on 2nd Street and Ocean Avenue (between Santa Monica Boulevard and Broadway) to the satisfaction of the Water Resources Manager.
Improvement plans shall be submitted to the Engineering Division. All reports and plans shall also be approved by the Water Resources Engineer.
DCP MM U-1 Fair Share Contribution: If a City Sewer Master Plan is completed prior to the issuance of the last building permit for the project, the project applicant shall provide a fair share contribution (based the methodology set forth by the City’s Sewer Master Plan) to the City’s Capital Improvements Program or any Public Infrastructure Financing Program (PIFP) required to upgrade sewer service to the site (i.e., Ocean/ Main corridor). A security shall be provided or a payment agreement executed prior to issuance of the last building permit for the project.
DCP MM PS-1: The City shall require applicants of development projects with buildings that are seven stories and higher in the Downtown to prepare a high-rise pre-fire plan.
At a minimum, the pre-fire plan shall address the types and capabilities of fire protection systems, the layout of the building, locations of stairwells and elevators, and how evacuation will be handled. A copy of the plan shall be kept in the fire control room and a copy shall be filed with the SMFD fire marshal. The plan shall be revised every 5 years.
Exhibit “D”, Page 18
DCP MM PS-2: The City shall require applicants of development projects over a specifies square footage in the Downtown to prepare and implement a security plan for common or public spaces, including parking structures/lots, courtyards, other open areas, public or common area walkways stairways and elevators as a condition of their development agreement. The security plan will identify the locations of 911-capable phones in parking garages and other public area, will establish rules and regulations for public use of the courtyard areas, and establish private security patrols for the property. Private security patrols shall work in coordination with the SMPD. The plan shall be subject to review and approval by the SMPD.
Exhibit “D”, Page 19
SECTION B – CONDITIONS OF APPROVAL
Project Specific Conditions
1. The project shall provide the Significant Project Features and LUCE Community Benefits as established in Sections 2.7 and 2.8 of this Agreement.
2. During construction of the Project, Developer will use industry standard methods to monitor the effects of the construction on Palisades Park.
3. During Design Review, the ARB and/or Landmarks Commission, as applicable, shall pay particular attention to any proposed highly reflective materials on the Project’s façade to avoid obtrusive glare onto the public-right-of-way or adjacent properties.
CITY PLANNING
Administrative Conditions
4. In the event Developer violates or fails to comply with any conditions of approval of this Agreement, no further permits, licenses, approvals or certificates of occupancy shall be issued until such violation has been fully remedied.
Conformance with Approved Plans
5. This approval is for those plans dated July 14, 2022, a copy of which shall be maintained in the files of the City Planning Division. Project development shall be consistent with such plans, except as otherwise specified in the Development Agreement, including these conditions of approval.
6. 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.
7. 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 the Downtown Community Plan, Article IX of the Municipal Code and all other pertinent ordinances and General Plan policies of the City of Santa Monica prior to building permit issuance.
Fees
8. In accordance with Section 2.7.7 of the Development Agreement, no building permit shall be issued for the project until the developer complies with the requirements of Chapter 9.30 of the Santa Monica Municipal Code, Private Developer Cultural Arts Requirement.
Exhibit “D”, Page 20
Project Operations
9. 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.
10. The project shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12 or any successor thereto).
Final Design
11. Plans for final design, landscaping, screening, trash enclosures, and signage shall be subject to Design Review in Article 6 of the Development Agreement.
12. Landscaping plans shall comply with Chapter 9.26 (Landscaping Standards) of the Zoning Ordinance including use of water-conserving landscaping materials, landscape maintenance and other standards contained in the Chapter.
13. Refuse areas, storage areas and mechanical equipment shall be screened in accordance with SMMC Sections 9.21.100, 130, and 140. Refuse areas shall be of a size adequate to meet on-site need, including recycling. During Design Review, the Landmarks Commission and/or ARB, as applicable, shall pay particular attention to the screening of such areas and equipment. Any rooftop mechanical equipment shall be minimized in height and area, and shall be located in such a way as to minimize noise and visual impacts to surrounding properties. Unless otherwise approved by the Landmarks Commission or ARB, rooftop mechanical equipment shall be located at least five feet from the edge of the roof. Except for solar hot water heaters, no residential water heaters shall be located on the roof.
14. No gas or electric meters shall be located within the required Building Frontage Line setback areas. During Design Review pursuant to Article 6 of the Development Agreement, the Landmarks Commission and/or ARB, as applicable, shall pay particular attention to the location and screening of such meters.
15. As appropriate and if consistent with the Secretary of the Interior’s Standards, the Landmarks Commission and/or ARB, as applicable, shall require the use of anti-graffiti materials on surfaces likely to attract graffiti.
Construction Plan Requirements
16. Final building plans submitted for approval of a building permit shall include on the plans a list of all permanent mechanical equipment to be placed indoors which may be heard outdoors.
Demolition Requirements
17. 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 Exhibit “D”, Page 21
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.
18. Prior to issuance of a demolition permit, applicant shall prepare for Building Division approval a rodent and pest control plan to ensure that demolition and construction activities at the site do not create pest control impacts on the project neighborhood.
Construction Period
19. There shall be no construction activities that require opening, closing, or blocking of streets, sidewalks, alleys, or street parking in retail areas of the City over the holiday season that runs from the day before Thanksgiving through January 2nd. Exemptions are allowed for emergencies and special conditions authorized in advance by the Director of Public Works. The following areas are affected by this condition: Downtown (Wilshire to the 10 Freeway and Lincoln to Ocean Avenue); Main Street (Pico to the Southerly City limit); Montana Avenue (6th Court to 17th Street); Pico Boulevard (from the Ocean to the Easterly City limit at Centinela).
Standard Conditions
20. Mechanical equipment shall not be located on the side of any building which is adjacent to a residential building on the adjoining lot, unless otherwise permitted by applicable regulations. Roof locations may be used when the mechanical equipment is installed within a sound-rated parapet enclosure.
21. 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.
22. The property owner shall insure any graffiti on the site is promptly removed through compliance with the City’s graffiti removal program.
Condition Monitoring
23. 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.
MOBILITY DIVISION
24. Final auto parking, bicycle parking and loading layouts specifications shall be subject to the review and approval of the Mobility Division and Building and Safety Division:
http://www.smgov.net/uploadedFiles/Departments/Transportation/Transportation_Manag ement/ParkingStandards.pdf
Exhibit “D”, Page 22
25. Where a driveway, garage, parking space or loading zone intersects with the public rightof-way at the alley or sidewalk, hazardous visual obstruction triangles shall be provided in accordance with SMMC Section 9.21.180. Please reference the following standards:
http://www.smgov.net/uploadedFiles/Departments/Transportation/Transportation_Manag ement/HVO.pdf
26. 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 Mobility Division Manager but shall not exceed a twenty percent slope. Please reference the following standards:
http://www.smgov.net/uploadedFiles/Departments/Transportation/Transportation_Manag ement/RampSlope.pdf
27. Bicycle parking provided in the Project shall meet the requirements of SMMC Section
9.28.140.
BIG BLUE BUS
28. Developer shall notify all tenants (residential and/or commercial) in writing as part of their lease or rental agreement that the City envisions a network of transit services in the Downtown area that may result in public transit services operating on any street in the Downtown area, both on streets currently used by transit or through expansion of service to streets not currently utilized by transit. In addition, new bus stops or bus layover zones may be established on these streets for regular use by either the Big Blue Bus or other fixed route or specialized transit operators. 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.
29. Developer shall notify all residential and/or commercial tenants in writing as part of their lease or rental agreement that they are located within 1000 feet of a facility used 24 hours per day, 365/6 days per year for the operation and maintenance of the City’s transit and other vehicle fleets and such adjacency may subject them to the continuous sounds associated with operating and maintaining a large fleet of vehicles on a daily basis. The sounds of engines, radios, machinery, equipment, alarms, voices, compression tanks/tools, fueling and washing activities are some but not all of the sounds that might be heard on a 24 hour daily basis.
PUBLIC LANDSCAPE
30. Street trees shall be maintained, relocated or provided as required in a manner consistent with the City’s Urban Forest Master Plan, per the specifications of the Public Landscape Division of the Community & Cultural Services Department and the City’s Tree Code (SMMC Chapter 7.40). No street trees shall be removed without the approval of the Public Landscape Division.
31. 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 Exhibit “D”, Page 23
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.
32. Replace or plant new street trees in accordance with Urban Forest Master Plan and in consultation with City Arborist.
OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT
33. Developer shall enroll the property in the Savings By Design incentive program where available through Southern California Edison prior to submittal of plans for Design Review. Developer shall execute an incentive agreement with Southern California Edison prior to the issuance of a building permit.
34. The project shall comply with requirements in Chapter 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 Chapter 8.108 of the Santa Monica Municipal Code.
RENT CONTROL
35. Consistent with Agreement Section 2.7.1 and pursuant to SMMC Section 4.24.030, prior to receipt of the final permit necessary to demolish, convert, or otherwise remove a controlled rental unit(s) from the housing market, the owner of the property shall first secure a removal permit under Rent Control Charter Amendment Section 1803(t), an exemption determination, an approval of a vested rights claim from the Rent Control board, or have withdrawn the controlled rental unit(s) pursuant to the provisions of the Ellis Act.
HOUSING AND ECONOMIC DEVELOPMENT
36. Relocation assistance shall be provided, by the owner, to a tenant whose tenancy is terminated as a result of the removal of a housing units from the rental housing market in accordance with Agreement Section 2.7.1.
PUBLIC WORKS
General Conditions
39. Developer shall be responsible for the payment of the following applicable Public Works Department (PWD) permit fees prior to issuance of a building permit:
a. Water Services
b. Wastewater Capital Facility
c. Water Demand Mitigation
d. Fire Service Connection
e. Tieback Encroachment
Exhibit “D”, Page 24
f. Encroachment of on-site improvements into public right-of-way g. Construction and Demolition Waste Management – If the valuation of a project is at least $50,000 or if the total square feet of the project is equal to or greater than 1000 square feet, then the owner or contractor is required to complete and submit a Waste Management Plan. All demolition projects are required to submit a Waste Management Plan. A performance deposit is collected for all Waste Management Plans equal to 3% of the project value, not to exceed $30,000. All demolition only permits require a $1,000 deposit or $1.00 per square foot, whichever is the greater of the two.
Some of these fees shall be reimbursed to developer in accordance with the City’s standard practice should Developer not proceed with development of the Project. In order to receive a refund of the Construction and Demolition performance deposit, the owner or contractor must provide receipts of recycling 70% of all materials listed on the Waste Management Plan.
40. Developer shall comply with the Construction Mitigation Plan set forth in Exhibit “J” attached hereto.
41. Any construction related work or use of the public right-of-way will be required to obtain the approval of the City of Santa Monica, including but not limited to: Use of Public Property Permits, Sewer Permits, Excavation Permits, Alley Closure Permits, Street Closure Permits, and Temporary Traffic Control Plans.
42. Plans and specifications for all offsite improvements shall be prepared by a Registered Civil Engineer licensed in the State of California for approval by the City Engineer prior to issuance of a building permit. Prior to approval an offsite improvement permit by the City’s Public Works Department, the City Engineer shall review final design plans (including the final excavation plans and potential impacts on the water main and sewer mains in First Court Alley) and shall confirm in his or her sole discretion whether the design plans and their impact on the water/sewer mains would reasonably require replacement by the Developer. If such replacement is required, it shall be completed prior to issuance of a Certificate of Occupancy for the Project. Prior to ground disturbance, all proposed work associated with the sewer/water connections and/or new sewer/water main(s) would be subject to review and approval by the City Department of Public Works.
43. Immediately after demolition and during construction, a security fence, the height of which shall be the maximum permitted by the Zoning Ordinance, shall be maintained around the perimeter of the lot. The lot shall be kept clear of all trash, weeds, etc.
44. Until completion of construction, a sign shall be posted on the property in a manner consistent with the public hearing sign requirements, which shall identify the address and phone number of the owner, developer and contractor for the purposes of responding to questions and complaints during the construction period. Said sign shall also indicate the hours of permissible construction work.
Exhibit “D”, Page 25
45. Prior to the demolition of any existing structure, the applicant shall submit a report from an industrial hygienist to be reviewed and approved as to content and form by the Building & Safety Division. The report shall consist of a hazardous materials survey for the structure proposed for demolition. The report shall include a section on asbestos and in accordance with the South Coast AQMD Rule 1403, the asbestos survey shall be performed by a state Certified Asbestos Consultant (CAC). The report shall include a section on lead, which shall be performed by a state Certified Lead Inspector/Assessor. Additional hazardous materials to be considered by the industrial hygienist shall include: mercury (in thermostats, switches, fluorescent light), polychlorinated biphenyls (PCBs) (including light Ballast), and fuels, pesticides, and batteries.
Water Resources
46. Connections to the sewer or storm drains require a sewer permit from the PWD - Civil Engineering Division. Connections to storm drains owned by Los Angeles County require a permit from the L.A. County Department of Public Works.
47. Parking areas and structures and other facilities generating wastewater with potential oil and grease content are required to pretreat the wastewater before discharging to the City storm drain or sewer system. Pretreatment will require that a clarifier or oil/water separator be installed and maintained on site.
48. If the project involves dewatering, developer/contractor shall contact the LA Regional Water Quality Control Board (RWQCB) to obtain an NPDES Permit for discharge of groundwater from construction dewatering to surface water. For more information refer to:
http://www.waterboards.ca.gov/losangeles/ and search for Order # R4-2003-0111.
49. Prior to the issuance of the first building permit, the applicant shall submit a sewer study that shows that the City’s sewer system can accommodate the entire development. If the study does not show to the satisfaction of the City that the City’s sewer system can accommodate the entire development, prior to issuance of the first building permit, the Developer shall be responsible to upgrade any downstream deficiencies, to the satisfaction of the Water Resources Manager, if calculations show that the project will cause such mains to receive greater demand than can be accommodated. Improvement plans shall be submitted to the Engineering Division. All reports and plans shall also be approved by the Water Resources Engineer.
50. Prior to the issuance of the first building permit, the applicant shall submit a water study that shows that the City’s water system can accommodate the entire development for fire flows and all potable needs. Developer shall be responsible to upgrade any water flow/pressure deficiencies, to the satisfaction of the Water Resources Manager, if calculations show that the project will cause such mains to receive greater demand than can be accommodated. Improvement plans shall be submitted to the Engineering Division.
All reports and plans shall also be approved by the Water Resources Engineer.
51. Prior to the issuance of the first building permit, the applicant shall submit a hydrology study of all drainage to and from the site to demonstrate adequacy of the existing storm Exhibit “D”, Page 26
drain system for the entire development. Developer shall be responsible to upgrade any system deficiencies, to the satisfaction of City Engineer, if calculations show that the project will cause such facilities to receive greater demand than can be accommodated. All reports and improvement plans shall be submitted to Engineering Division for review and approval. The study shall be performed by a Registered Civil Engineer licensed in the State of California.
52. Developer shall not directly connect to a public storm drainpipe or direct site drainage to the public alley. Commercial or residential units are required to either have an individual water meter or a master meter with sub-meters.
53. All existing sanitary sewer “house connections” to be abandoned, shall be removed and capped at the “Y” connections.
54. The fire services and domestic services 3-inches or greater must be above ground (or first basement level, if acceptable to Developer), on the applicant’s site, readily accessible for testing.
55. Developer is required to meet state cross-connection and potable water sanitation guidelines. Refer to requirements and comply with the cross-connections guidelines available at: http://www.lapublichealth.org/eh/progs/envirp/ehcross.htm. Prior to issuance of a Certificate of Occupancy, a cross-connection inspection shall be completed.
56. All new restaurants and cooking facilities at the site are required to install Gravity Grease Interceptors to pretreat wastewater containing grease. The minimum capacity of the interceptor shall be determined by using table 10-3 of the 2007 Uniform Plumbing Code, Section 1014.3. All units shall be fitted with a standard final-stage sample box. The 2007 Uniform Plumbing Code guideline in sizing Gravity Grease Interceptors is intended as a minimum requirement and may be increased at the discretion of PWD, Water Resources Protection Program.
57. Unless otherwise required by Section 2.7.10 of this Agreement, plumbing fixtures that meet the standards for 20% water use reduction specified in the 2019 California Green Building Standards Code are required on all new development and remodeling where plumbing is to be added.
Water Runoff Mitigation
58. To mitigate storm water and surface runoff from the project site, an Urban Runoff Mitigation Plan shall be required by the PWD pursuant to Municipal Code Chapter 7.10.
Prior to submittal of landscape plans for Design Review, the applicant shall contact PWD to determine applicable requirements, such as:
a. The site must comply with SMMC Chapter 7.10 Urban Runoff Pollution Ordinance for the construction phase and post construction activities; b. Non-storm water runoff, sediment and construction waste from the construction site and parking areas is prohibited from leaving the site;
Exhibit “D”, Page 27
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.
59. Prior to implementing any temporary construction dewatering or permanent groundwater seepage pumping, a permit is required from the City Water Resources Protection Program (WRPP). Please contact the WRPP for permit requirements at least two weeks in advance of planned dewatering or seepage pumping. They can be reached at (310) 458-8235.
Public Streets & Right-of-Way
60. Prior to the issuance of a Certificate of Occupancy for the Project, all required offsite improvements, such as AC pavement rehabilitation, replacement of sidewalk, curbs and gutters, installation of street trees, lighting, etc. shall be designed and installed to the satisfaction of the Public Works Department and Public Landscape Division.
61. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and passable during the grading and construction phase of the project.
62. Sidewalks, curbs, gutters, paving and driveways which need replacing or removal as a result of the project or needed improvement prior to the project, as determined by the PWD shall be reconstructed to the satisfaction of the PWD. Design, materials and workmanship shall match the adjacent elements including architectural concrete, pavers, tree wells, art elements, special landscaping, etc.
63. Street and alley sections adjacent to the development shall be replaced as determined by the PWD.
Utilities
64. No Excavation Permit shall be issued without a Telecommunications Investigation by the City of Santa Monica Information Systems Department. The telecommunications investigation shall provide a list of recommendations to be incorporated into the project design including, but not limited to measures associated with joint trench opportunities, location of tie-back and other underground installations, telecommunications conduit size and specifications, fiber optic cable specifications, telecommunications vault size and Exhibit “D”, Page 28
placement and specifications, interior riser conduit and fiber optic cable, and adjacent public right of way enhancements.
65. Prior to the issuance of a Certificate of Occupancy for the Project, provide new streetpedestrian lighting with a multiple circuit system along the new street right-of-way and within the development site in compliance with the PWD Standards and requirements.
New street-pedestrian light poles, fixtures and appurtenances to meet City standards and requirements.
66. Prior to submittal of plan check application, make arrangements with all affected utility companies and indicate points of connection for all services on the site plan drawing. Pay for undergrounding of all overhead utilities within and along the development frontages.
Existing and proposed overhead utilities need to be relocated underground.
67. Location of Southern California Edison electrical transformer and switch equipment/structures must be clearly shown on the development site plan and other appropriate plans within the project limits. The SCE structures serving the proposed development shall not be located in the public right-of-way.
Resource Recovery and Recycling
68. Development plans must show the refuse and recycling (RR) area dimensions to demonstrate adequate and easily accessible area. If the RR area is completely enclosed, then lighting, ventilation and floor drain connected to sewer will be required. Refuse and recycling storage and staging areas shall be provided in accordance with Development Agreement Section 2.10(g). Contact Resource Recovery and Recycling RRR division to obtain dimensions of the refuse recycling enclosure.
69. Prior to issuance of a building permit, submit a Waste Management Plan, a map of the enclosure and staging area with dimensions and a recycling plan to the RRR Division for its approval. The State of California AB 341 requires any multi-family building housing 5 units or more to have a recycling program in place for its tenants. All commercial businesses generating 4 cubic yards of trash per week must also have a recycling program in place for its employees and clients/customers. Show compliance with these requirements on the building plans. Visit the Resource Recovery and Recycling (RRR) website or contact the RRR Division for requirements of the Waste Management Plan and to obtain the minimum dimensions of the refuse recycling enclosure. The recycling plan shall include:
a. List of materials such as white paper, computer paper, metal cans, and glass to be recycled;
b. Location of recycling bins;
c. Designated recycling coordinator;
d. Nature and extent of internal and external pick-up service; e. Pick-up schedule; and
f. Plan to inform tenants/ occupants of service.
Exhibit “D”, Page 29
Miscellaneous
70. 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.
71. Nothing contained in the Development Agreement for this Project or these Conditions of Approval shall prevent Developer from seeking relief pursuant to any Application for Alternative Materials and Methods of Design and Construction or any other relief as otherwise may be permitted and available under the Building Code, Fire Code, or any other provision of the SMMC.
FIRE
72. The Project shall comply with the Fire Code and Building Code in effect at the time the Project’s building permit plan check application is filed.
Exhibit “E-1”, Page 2
EXHIBIT “E-1”
CONDITIONS OF APPROVAL TO DISPENSE ALCOHOL AT RESTAURANTS In any areas designated for restaurant space on the Project Plans and any outdoor dining areas associated with such spaces, a restaurant operator (which may be Developer) may dispense for sale or other consideration alcoholic beverages on the following terms and conditions:
1. This approval is for a Type 47 (On Sale General — Eating Place) alcohol license only.
Any request to modify the license type shall require a separate conditional use permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications).
2. The permitted hours of alcoholic beverage service shall be 8:00 a.m. to 12:00 a.m. Sunday through Wednesday with complete closure and all restaurant employees vacated from the restaurant by 1:00 a.m., and 8:00 a.m. to 1:00 a.m. Thursday through Saturday with complete closure and all restaurant employees vacated from the restaurant by 2:00 a.m.
All alcoholic beverages must be removed from any outdoor dining area no later than 11:00 p.m. Sunday through Thursday. No after-hours operation is permitted. Any after-hours operations or special events shall be subject to review and approval of a temporary use permit.
3. No video or other amusement games shall be permitted in the restaurant.
4. If a counter service area is provided, food service shall be available at all hours the counter is open for patrons, and the counter area shall not function as a separate bar area.
5. Window or other signage visible from the public right-of-way that advertises beer or alcohol shall not be permitted.
6. Customers shall be permitted to order meals at all times and at all locations where alcohol is being served. The restaurant shall serve food to patrons during all hours the restaurant is open for customers.
7. The restaurant shall maintain a kitchen or food-serving area in which a variety of food is prepared.
8. Sale of alcoholic beverages for consumption beyond the restaurant premises shall be permitted if authorized by the restaurants’ California Alcoholic Beverage Control (“ABC”) license.
9. Entertainment may only be permitted in the manner set forth in SMMC Section 9.31.290, Restaurants with Entertainment.
10. The primary use of any outdoor dining area shall be for seated meal service. Patrons who are standing in the outdoor seating area shall not be served.
Exhibit “E-1”, Page 3
11. The restaurant operations shall at all times be conducted in a manner not detrimental to surrounding properties by reason of lights, noise, activities, or other actions. The operator of the restaurant shall control noisy patrons leaving the restaurant premises.
12. Liquor bottle service shall be prohibited. Wine and beer bottle service shall not be available to patrons unless full meal service is provided concurrent with the bottle service.
For purposes of this paragraph, “bottle service” means the service of any full bottle of liquor, wine, or beer of more than 375 ml, along with glass ware, mixers, garnishes, or other items used for the mixing of drinks, which patrons are able to then use to make their own drinks or pour their own wine or beer. All food items shall be available from the restaurant’s full service menu.
13. No organized queuing of patrons at the entry or checking of identification to control entry into and within the restaurant premises shall be permitted. There shall not be any age limitation imposed restricting access to any portion of the restaurant premises.
14. 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 beverage at the restaurant premises.
15. Areas of the restaurant premises with amplified music shall be required to comply with Chapter 4.12, Noise, of the Santa Monica Municipal Code.
16. Prior to commencement of alcohol service in the restaurant premises, 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.
17. Concurrently with filing an application with the State ABC, the restaurant operator shall provide a signed copy of this Exhibit “E-1” to the local office of the State Alcoholic Beverage Control department (“ABC”).
18. Prior to commencement of alcohol service in the restaurant premises, the restaurant operator shall submit a plan for approval by the Community Development 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 an ABC-sponsored alcohol awareness training program within 90 days of the effective date of the exemption determination. In the case of new restaurant employees, the plan shall require all such new restaurant employees to attend an ABC-sponsored alcohol awareness training program 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 Director. The restaurant operator shall provide the City with an annual report regarding compliance with this condition within 60 days of receiving a written Exhibit “E-1”, Page 4
request from the City. The restaurant shall be subject to any future City-wide alcohol awareness training program condition affecting similar establishments.
19. Prior to commencement of alcohol service pursuant to this Exhibit “E-1”, the restaurant shall also submit a plan describing the restaurant's program to discourage patrons from drinking and driving (e.g. designated driver and/or alternative ride program), which shall be offered by the restaurant operator to the restaurant's patrons. The plan shall specify how the restaurant will inform patrons of the program, such as offering on the menu a free non-alcoholic drink for every party of two or more ordering more than one alcoholic beverage or highlighting alternative options for getting home (e.g. public transit/rideshare/walk).
20. Notices shall be prominently displayed urging patrons to leave the restaurant and neighborhood in a quiet, peaceful, and orderly fashion and to not litter or block driveways in the neighborhood.
21. Employees of the restaurant shall walk a 100-foot radius from the restaurant premises at some point prior to 30 minutes after closing and shall pick up and dispose of any discarded beverage containers and other trash left by patrons.
22. In the event of a conflict between the regulations of this Section and regulations issued by the ABC, the ABC regulations shall control and be deemed to have modified contrary provisions of this Section.
23. Prior to or concurrently with submitting the signed acknowledge of these conditions to the Community Development Director, restaurant operator shall submit the restaurant premises plan to the Community Development Director so that the Community Development Director can verify that the restaurant premises are within the areas designed for restaurant on the Project Plans. After such confirmation, minor amendments to the restaurant premises shall be subject to approval by the Community Development Director in accordance with Section 2.4.2 (Minor Modifications) of this Agreement. A significant change in the approved concept for the alcohol service areas in this Exhibit "E-1" shall require either a Conditional Use Permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). Construction shall be in substantial conformance with the plans approved by the Community Development Director. No increase in the intensity of operations allowed by this Exhibit “E-1” shall occur without prior approval from the City of Santa Monica and State ABC (if required by the ABC).
24. The restaurant operator authorizes reasonable City inspection of the restaurant premises to ensure compliance with this Exhibit “E-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 “E-1”.
Exhibit “E-1”, Page 5
Acknowledgement of Restaurant Operator
I hereby agree to the above conditions of approval and acknowledge that failure to comply with such conditions shall constitute grounds for potential revocation of the approval to dispense alcoholic beverages.
___________________________________________ ____________________ Print Name and Title Date
_________________________________________
Signature
Exhibit “E-2”, Page 1
EXHIBIT “E-2”
HOTEL CONDITIONS OF APPROVAL TO DISPENSE ALCOHOL
Hotel operator (which may be Developer) may sell or furnish alcoholic beverages for consumption in the portions of the hotel and the Cultural Use Campus as shown on the Exhibit “E-2.A” (“Licensed Premises”) on the following terms and conditions without obtaining a Conditional Use Permit. For the avoidance of doubt, restaurants located outside of the "Licensed Premises" shown on Exhibit "E-2.A" but within the Hotel Building may offer alcoholic beverages pursuant to Sections 2.6.1 or 2.6.2 of the Development Agreement dated _______________, 202___ and recorded on __________ in the Office of the Los Angeles County Recorder as Instrument No. ______________ (the (“Development Agreement”) governing the development and operation of the Project, including the Licensed Premises.
1. This approval is for the following alcohol license types only: Type 21 (Off-Sale General), Type 47 (On Sale General -- Eating Place), Type 66 (Controlled Access Cabinet), and Type 68 (Portable Bar). For any particular license type, the Licensed Premises may have more than one license and/or duplicates.
2. Seating and Locations. Seating and locations in which alcohol is served shall not exceed the following:
• Licensed Premises as shown on Exhibit “E-2.A” including:
o Hotel minibars
o Room service to hotel rooms
o 1
st Floor Hotel Lobby
▪ up to 30 interior seats
o 2
nd Floor Hotel Lounge
▪ up to 20 interior seats
o 2
nd Floor Pool Deck and Bar
o Meeting/Banquet Space on Level B2 and 2nd Floor
o Sundry Shop
o Hotel common areas, including the lobby areas, spa, business center, and the outdoor areas shown on Exhibit “E-2.A”
o Cultural Uses Campus, including the lobby area, gallery spaces, 4th floor roof terrace, and café.
The seating configurations for each of the alcohol serving areas may be altered or rearranged so long as the overall number of seats in the Licensed Premises is not expanded. No more than 15% of the overall seating in the Licensed Premises shall be counter/bar seating.
3. Only the sundry shop may be covered by a Type 21 (Off-Sale General) alcohol license(s).
A separate conditional use permit or amendment to this Agreement shall be required for additional locations within the Licensed Premises or on the Property to be authorized for Exhibit “E-2”, Page 2
a Type 21 (Off-Sale General) alcohol license. In the remainder of the Licensed Premises, off-site sales of beer and wine are allowed consistent with and pursuant to the applicable Type 47 (On Sale General -- Eating Place) alcohol license.
4. Hotel employees may sell or furnish alcoholic beverages for consumption within the areas described in Section 2 above between the hours of 6:00 AM to 2:00 AM (next day) daily, subject to the following additional restrictions:
a. 1st Floor Hotel Lobby: The permitted hours of alcoholic beverage service shall be 6:00 a.m. to 2:00 a.m. (next day) daily.
b. 2nd Floor Pool Deck and Cultural Uses Campus 4th Level Roof Terrace: The permitted hours of alcoholic beverage service shall be 8:00 a.m. to 10:00 p.m. daily, except if pursuant to an event with catering license. c. Sundry Shop: The permitted hours of off-site alcoholic beverage sales shall be 12:00 p.m. to 12:00 a.m. (next day) daily.
5. Hotel Rooms and Room Service.
a. Mini-bars/refrigerators shall be permitted in individual hotel rooms, subject to the terms and conditions in this Exhibit “E-2” in addition to the following conditions if they will contain alcoholic beverages:
1. Restocking of the mini-bars/refrigerators shall be performed during daily service of the hotel rooms, but shall not be performed between the hours of 2:00 a.m. and 6:00 a.m.; and
2. Alcohol shall be stored only within approved liquor cabinets, which shall be accessible through key access or other controls restricting availability only to registered guests 21 years of age or older.
b. Room service of alcoholic beverages for consumption in hotel guest rooms and adjoining private outdoor space is permitted to hotel guests and their guests 21 years of age or older who provide proof of age if requested by room service personnel and subject to the terms and conditions in this Exhibit “E-2”. c. With respect to the mini-bars/refrigerators in individual hotel rooms described in subsection (a) of this Section 5 and room service of alcoholic beverages as provided in subsection (b) of this Section 5, the hotel operator shall not be obligated to obtain any additional Discretionary Approvals from the City, including without limitation any Conditional Use Permits, so long as they are operated within the scope of this Exhibit “E-2”.
6. Hotel shall maintain a kitchen or food-serving area in which a variety of food is prepared and cooked on the Licensed Premises. The hotel shall serve food during all hours alcohol service is available in the Licensed Premises. If there are hours during which food is not served in a particular area of the Licensed Premises, alcohol shall not be served in such area during such hours.
7. 2
nd Floor Pool Deck/Bar: Liquor bottle service shall be prohibited. Wine and beer bottle service shall not be available to patrons unless full meal service is provided concurrent Exhibit “E-2”, Page 3
with the bottle service. For purposes of this paragraph, “Liquor bottle service” means the service of any full bottle of liquor, wine, or beer of more than 375 ml, along with glass ware, mixers, garnishes, or other items used for the mixing of drinks, which patrons are able to then use to make their own drinks.
8. The hotel shall not organize or participate in organized “pub-crawl” events where participants or customers pre-purchase tickets or tokens to be exchanged for alcoholic beverages at the premises and other alcohol-serving venues participating in the “pubcrawl”.
9. The operation of the Licensed Premises 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.
10. Any alcoholic beverages sold for consumption beyond the Licensed Premises must be sold in sealed, unopened bottles, packages or containers.
11. The primary use of the Licensed Premises shall be for Hotel Uses, Cultural Facilities Uses, and Accessory Uses. In the hotel, alcohol may be available to registered hotel guests and their visitors, other patrons of the hotel (including its restaurants, lounges, bar, spa and sundry shop), and persons attending functions in the Meeting/Banquet Rooms/2nd Floor Pool Deck. In the Cultural Facilities, alcohol may be available to patrons/visitors to the Cultural Uses Campus, including persons attending functions in the Cultural Uses Campus.
12. Music (live, acoustical, amplified, disc jockey, or recorded) shall be permitted in all areas of the Licensed Premises covered by this Exhibit “E-2.A”) provided (a) there is no dancing, (b) there is no cover charge or minimum drink purchase requirement, and (c) the volume of the music complies with the provisions of the Noise Ordinance (SMMC Chapter 4.12) at all times. Notwithstanding the foregoing, dancing shall be permitted in all areas of the Licensed Premises when dancing is associated with events or activities such as wedding receptions, charity events, instructional classes, reunions, performances, ceremonies, parties, banquets, receptions, celebrations, etc.
13. Notwithstanding the foregoing, alcohol service is only permitted within the Meeting/Banquet spaces on Level B2 and the 2nd Floor and the Cultural Uses Campus provided these rooms/facilities, at the time alcohol is served, are being used for events or activities such as meetings, conferences, lectures, training or instructional classes, conventions, demonstrations, competitions, speeches, services, presentations, celebrations, contests, fundraisers, commemorations, reunions, performances, auctions, ceremonies, parties, banquets, receptions, and other analogous events or activities occurring in comparable hotel meeting and banquet facilities or Cultural Facilities.
14. Except for special events and in the outdoor areas (including the pool deck and roof terrace), alcohol shall not be served in any disposable container such as disposable plastic or paper cups.
Exhibit “E-2”, Page 4
15. The hotel operator shall prohibit loitering and control noisy guests leaving the Licensed Premises.
16. Any minimum purchase requirement may be satisfied by the purchase of beverages or food.
17. The Licensed Premises shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12).
18. The hotel shall not conduct recycling deposits, pressure washing, or other noise generating activity audible from the exterior of the buildings between the hours of 11 PM and 7 AM.
19. Window or other signage visible from the public right-of-way that advertises beer or alcohol shall not be permitted.
20. The hotel operator shall ensure that any graffiti on the Licensed Premises is promptly removed through compliance with the City's graffiti removal program.
21. The hotel operator shall employ staff to patrol the Licensed Premises to ensure patrons of the hotel are not disruptive to adjoining properties and area residents.
22. Prior to commencement of alcohol service pursuant to this Exhibit “E-2”, a security plan shall be submitted to the Chief of Police for review of approval. The plan shall address both physical and operational security issues.
23. Prior to commencement of alcohol sales pursuant to this Exhibit “E-2”, the hotel operator shall submit a plan for approval by the Community Development Director regarding employee alcohol awareness training programs and policies. The plan shall outline a mandatory alcohol awareness training program for all employees having contact with the public and shall state management’s policies addressing alcohol consumption and inebriation. The hotel operator shall provide the City with an annual report regarding compliance with this condition within 60 days of receiving a written request from the City. The hotel shall be subject to any future citywide alcohol awareness training program condition affecting similar establishments.
24. Prior to commencement of alcohol service pursuant to this Exhibit “E-2”, the hotel operator shall also submit a plan describing the establishment's program to discourage patrons from drinking and driving (e.g. designated driver and/or alternative ride program), which shall be offered by the hotel operator to the establishment's patrons. The plan shall specify how the hotel operator will inform patrons of the program, such as offering on the menu a free non-alcoholic drink for every party of two or more ordering more than one alcoholic beverage or highlighting alternative options for getting home (e.g. public transit/rideshare/walk).
Exhibit “E-2”, Page 5
25. The hotel operator authorizes reasonable City inspection of the Licensed Premises to ensure compliance with the conditions set forth in this Exhibit “E-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.
26. Minor amendments to the seating and location where alcohol is served as shown on Exhibit "E-2.A" shall be subject to approval by the Community Development Director in accordance with Section 2.4.2 (Minor Modifications) of this Agreement. A significant change in the approved concept for the alcohol service areas in this Exhibit “E-2” shall require either a Conditional Use Permit or a Development Agreement amendment pursuant to Section 2.4.3 (Major Modifications). Construction shall be in substantial conformance with the Project Plans as modified by the City Council, Landmarks Commission, California Coastal Commission or Community Development Director. No increase in the intensity of operations allowed by this Exhibit “E-2” shall occur without prior approval from the City of Santa Monica and California Department of Alcoholic Beverage Control (“ABC”) (if required by the ABC).
27. Concurrently with filing an application to the ABC for one or more alcohol licenses, the applicant shall provide a copy of this signed Exhibit “E-2” to the local office of the ABC.
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.
___________________________________________ ____________________ Print Name and Title Date
_________________________________________
Signature
Exhibit “E-2”, Page 6
EXHIBIT “E-2.A”
Licensed Premises
[Behind this page.]
DN
UP
M
DN
UP
DN
UP
DN
UP E
MAIN
ENTRANCE
10% 20% RAMP DOWN FROM ALLEY
ONE WAY
CULTURAL
USES
ENTRY LOBBY
CULTURAL
USES
CULTURAL
USES
CU
LOADING
CULTURAL
USES
WC
BOH
46'-5"
36'-3"
70'-10"
33'-0"
UP
HOTEL
LOBBY
OBS
LOBBY
EVENT
LOBBY
HOTEL
BOH
RETAIL /
RESTAURANT
BOH
RETAIL/
RESTAURANT
GUEST LOBBY
SERVICE / OBS
LOBBY
PRIMARY
TRANSFORMER
ROOM
TRASH AND
RECYCLING
GENERATOR
ROOM SECURITY OFFICE
WC
PP
HH
SP
SIGN AT BUILDING
FACE STARTING
14'-0" MIN. CLR HEIGHT
SIGN AT BUILDING
FACE STARTING
15'-5" MIN. CLR HEIGHT
PAVEMENT STRIPING TO SHOW
WHERE RRR TRUCK LOADING
OPERATIONS MUST OCCUR.
20' MIN.
20' MIN.
20' MIN.
80'-0" RIDE SHARE / PASSENGER LOADING ZONE
SPANISH COLONIAL
LANDMARK BUILDING
QUEEN ANNE
LANDMARK BUILDING
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
SANTA MONICA BLVD.
2ND ST.
1ST COURT
OCEAN AVE.
NEW VEHICULAR ALLEY
RETAIL
RETAIL
RETAIL
RESIDENTIAL
MAIN
LOBBY
RETAIL /
RESTAURANT
RETAIL /
RESTAURANT
LOADING
DOCK
LEASING
OFFICE
10%
20% RAMP
UP FROM
LEVEL B3
ONE WAY
WATER
METER
GAS
METER
FIRE
COMMAND
CENTER
DATA
INCOMING
SERVICE
ROOM
COM. COM.
D
BLDG
A
LOBBY
MAIL
ROOM
PACKAGE
ROOM
PARCEL
ROOM ELEC.
TRASH
AND
RECYCLING
SEE NOTE A
4'-0" 4'-0" 5'-0"
DN
UP
DN
UP
DN
DN
UP
DN
UP
R
R
R
R R R
S
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-201 1/16"=1'-0"
FLOOR PLANLEVEL 01
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
NOTE A
TRASH LOADING CONCEPT IS TO UTILIZE
PORTABLE INDUSTRIAL LIFTS TO UNLOADPRIVATE CONTAINERS BY THE BUILDINGS OPERATIONAL STAFF.CITY BINS ARE NOT INTENDED TO BE MOVED EXCEPT BY CITY RRR STAFF.
CONCEPT WILL BE FURTHER DEVELOPED BY A
WASTE / RECYCLING MANAGEMENT CONSULTANT
DURING SCHEMATIC DESIGN.
LICENSED PREMISES
SK-0318.1
Exhibit "E-2.A"
p. 1
DN
M
DN
DN
UP
DN
UP E
CULTURAL
USES
OPEN TO BELOW
OPEN TO BELOW
OPEN TO BELOW
BOH
80'-10"
40'-6"
UP
UP
COM.
ELEC.
R
DN
UP
COM.
R
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
ELEC.
COM.
R
B2.01
1 BR
B2.02
2 BR
B2.03
1 BR
B2.04
1 BR
C2.01
1 BR
C2.02
1 BR
C2.03
1 BR
D2.01
1 BR
D2.02
3 BR
D2.03
1 BR
D2.05
1 BR
D2.04
2 BR
D2.06
1 BR
RETAIL/ RESTAURANT
C2.04
STUDIO
A2.01
1 BR
A2.03
2 BR
A2.04
1 BR
A2.05
STUDIO
D2.07
STUDIO
D2.08
1 BR
A2.02
STUDIO
D
H2.01
1.5 BAY
H2.02
1.5 BAY
H2.03
1 BAY
H2.04
1 BAY
H2.05
1 BAY
H2.06
1 BAY
H2.07
1 BAY
H2.08
1 BAY
H2.09
1 BAY
H2.10
1 BAY
HH
SS
WC
LOUNGE
POOL
BAR
MEETING
ROOM 2
MEETING
ROOM 1
POOL
BUSINESS
CENTER
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-202 1/16"=1'-0"
FLOOR PLANLEVEL 02
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.2
Exhibit "E-2.A"
p. 2
H3.01
1.5 BAY
H3.02
1.5 BAY
H3.03
1 BAY
H3.04
1 BAY
H3.05
1 BAY
H3.06
1 BAY
H3.07
1 BAY
H3.08
1 BAY
H3.09
1 BAY
H3.10
1 BAY
H3.11
1 BAY
H3.12
1 BAY
H3.13
1 BAY
H3.14
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
DN
UP
DN
UP
R
ELEC.
COM.
DN
UP
DN
UP
R
COM.
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
C3.01
2 BR
C3.02
2 BR
D3.04
STUDIO
D3.01
1 BR
D3.02
3 BR
D3.03
1 BR
D3.06
1 BR
D3.05
2 BR
D3.07
1 BR
A3.01
1 BR
A3.02
STUDIO
A3.03
2 BR
A3.04
1 BR
D3.08
STUDIO
D3.09
1 BR
B3.01
1 BR
B3.02
2 BR
B3.03
1 BR
B3.04
1 BR
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-203 1/16"=1'-0"
FLOOR PLANLEVEL 03
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.3
Exhibit "E-2.A"
p. 3
DN
DN E
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
CULTURAL USES
ROOF TERRACE
SKYLIGHT
OPEN TO BELOW
SKYLIGHT
OPEN TO BELOW
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
H4.01
1.5 BAY
H4.02
1.5 BAY
H4.03
1 BAY
H4.04
1 BAY
H4.05
1 BAY
H4.06
1 BAY
H4.07
1 BAY
H4.08
1 BAY
H4.09
1 BAY
H4.10
1 BAY
H4.11
1 BAY
H4.12
1 BAY
H4.13
1 BAY
H4.14
1 BAY
HH
SS
DN
UP
DN
UP
R
ELEC.
COM.
DN
UP
DN
UP
COM.
R
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
COM.
ELEC.
R
B4.01
1 BR
B4.02
2 BR
B4.03
STUDIO
B4.04
1 BR
D4.01
1 BR
D4.02
3 BR
D4.03
1 BR
D4.04
1 BR
D4.07
1 BR
D4.06
1 BR
D4.05
2 BR
A4.01
1 BR
A4.02
STUDIO
A4.03
2 BR
A4.04
1 BR
C4.01
2 BR
C4.02
2 BR
D4.08
STUDIO
D4.09
1 BR
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-204 1/16"=1'-0"
FLOOR PLANLEVEL 04
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.4
Exhibit "E-2.A"
p. 4
DN
UP
DN
UP
R
ELEC.
COM.
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
COM.
ELEC.
R
DN
BUILDING
"C"
ROOF
EL. +60'-0"
CULTURAL USES ROOF
H5.01
1.5 BAY
H5.02
1.5 BAY
H5.03
1 BAY
H5.04
1 BAY
H5.05
1 BAY
H5.06
1 BAY
H5.07
1 BAY
H5.08
1 BAY
H5.09
1 BAY
H5.10
1 BAY
H5.11
1 BAY
H5.12
1 BAY
H5.13
1 BAY
H5.14
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC
TELECOM
D5.01
3 BR
D5.02
1 BR
D5.03
3 BR
D5.04
1 BR
D5.05
1 BR
D5.06
1 BR
A5.01
1 BR
A5.02
STUDIO
A5.03
2 BR
A5.04
1 BR
B5.01
1 BR
B5.02
2 BR
B5.03
STUDIO
B5.04
1 BR
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-205 1/16"=1'-0"
FLOOR PLANLEVEL 05
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.5
Exhibit "E-2.A"
p. 5
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
R
ELEC.
COM.
DN
BUILDING
"C"
ROOF
BUILDING
"A"
ROOF
B6.01
1 BR
B6.02
2 BR
D6.01
3 BR
D6.02
1 BR
D6.03
1 BR
D6.04
1 BR
D6.05
1 BR
D6.06
1 BR
B6.03
2 BR
TERRACE
TERRACE
TERRACE
TERRACE
H6.01
2 BAY
H6.02
3 BAY
H6.03
2 BAY
H6.04
3 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-206 1/16"=1'-0"
FLOOR PLANLEVEL 06
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.6
Exhibit "E-2.A"
p. 6
DN
UP
DN
UP
R
ELEC.
COM.
DN
UP
DN
UP
COM.
ELEC.
R
BUILDING
"A"
ROOF
D7.01
3 BR
D7.02
1 BR
D7.03
1 BR
D7.04
1 BR
D7.05
1 BR
D7.06
1 BR
B7.01
1 BR
B7.02
2 BR
B7.03
2 BR
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
H7.01
2 BAY
H7.02
1 BAY
H7.03
1 BAY
H7.04
1 BAY
H7.05
1 BAY
H7.06
1 BAY
H7.07
1 BAY
H7.08
1 BAY
H7.09
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-207 1/16"=1'-0"
FLOOR PLANLEVEL 07
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.7
Exhibit "E-2.A"
p. 7
D8.01
3 BR
D8.02
3 BR
D8.03
3 BR
B8.01
1 BR
B8.02
2 BR
B8.03
2 BR
H8.01
2 BAY
H8.02
1 BAY
H8.03
1 BAY
H8.04
1 BAY
H8.05 H8.06 1 BAY
1 BAY
H8.07
1 BAY
H8.08
1 BAY
H8.09
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
DN
UP
DN
UP
COM.
ELEC.
R
DN
UP
DN
UP
R
COM.
ELEC.
D8.01
3 BR
D8.02
3 BR
D8.03
3 BR
B8.01
1 BR
B8.02
2 BR
B8.03
2 BR
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-208 1/16"=1'-0"
FLOOR PLANLEVEL 08
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.8
Exhibit "E-2.A"
p. 8
H9.01
2 BAY
H9.02
1 BAY
H9.03
1 BAY
H9.04
1 BAY
H9.05
1 BAY
H9.06
1 BAY
H9.07
1 BAY
H9.08
1 BAY
H9.09
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
DN
UP
DN
UP
COM.
ELEC.
R
DN
BUILDING
"D"
ROOF
B9.01
1 BR
B9.02
2 BR
B9.03
2 BR
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-209 1/16"=1'-0"
FLOOR PLANLEVEL 09
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.9
Exhibit "E-2.A"
p. 9
H10.01
2 BAY
H10.02
1 BAY
H10.03
1 BAY
H10.04
1 BAY
H10.05
1 BAY
H10.06
1 BAY
H10.07
1 BAY
H10.08
1 BAY
H10.09
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
4'-0" 4'-0" 5'-0"
4'-0" 4'-0" 5'-0"
BUILDING
"B"
ROOF DN
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-210 1/16"=1'-0"
FLOOR PLANLEVEL 10
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.10
Exhibit "E-2.A"
p. 10
H11.01
2 BAY
H11.02
1 BAY
H11.03
1 BAY
H11.04
1 BAY
H11.05
1 BAY
H11.06
1 BAY
H11.07
1 BAY
H11.08
1 BAY
H11.09
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-211 1/16"=1'-0"
FLOOR PLANLEVEL 11
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.11
Exhibit "E-2.A"
p. 11
H12.01
2 BAY
H12.02
1 BAY
H12.03
1 BAY
H12.04
1 BAY
H12.05
1 BAY
H12.06
1 BAY
H12.07
1 BAY
H12.08
1 BAY
H12.09
1 BAY
HH
SS
GUEST
LOBBY
SERVICE
LOBBY
ELEC LINEN
TELECOM
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-212 1/16"=1'-0"
FLOOR PLANLEVEL 12
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.12
Exhibit "E-2.A"
p. 12
SP
PUBLICLY
ACCESSIBLE
ROOF DECK
COOLING
TOWER
MEP OBS LOBBY
A3-205
A3-101
A3-102
A3-103
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-213 1/16"=1'-0"
DECKOBSERVATIONROOF PLAN
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.13
Exhibit "E-2.A"
p. 13
MEP SITE
CROSS-OVER
BELOW
VAULT
DN
UP
FR
DN
UP
FR
DN
UP
DN
UP
DN
UP
DN
UP
DN
UP
DN
UP
R
S
R R
HH
SS
DN
UP
DN
UP
D
SERVICE
LOBBY
GUEST
LOBBY
OPEN TO
BELOW
OPEN TO
BELOW
UTILITY VAULT
10% 20% RAMP UP TO 2ND ST
20% RAMP DOWN
FROM ALLEY
RETAIL /
RESTAURANT
RESIDENTIAL
TRASH AND
RECYCLING
RESIDENTIAL
TRASH AND
RECYCLING
RESIDENTIAL
TRASH AND
RECYCLING
RESIDENTIAL
TRASH AND
RECYCLING
RESIDENTIAL
STORAGE
LOCKERS
72 UNITS
EMPLOYEE
FACILITIES
ENG. &
MAINTENANCE
WORKSHOP
SPA
RETAIL /
RESTAURANT
STORM
WATER
TANK
STORM
WATER
PUMPS
STORM
WATER
TANK
STORM
WATER
PUMPS
ADMINISTRATIVE OFFICES
HOUSEKEEPING
CHILLERS
LINEN /
UNIFORM
STORAGE
RESIDENTIAL
LONG-TERM
BICYCLE
STORAGE
RESIDENTIAL
OFFICES
STORAGE
STORAGE
RESIDENTIAL
ENGINEERING AND
MAINTENANCE
WORKSHOP
MECHANICAL
MECHANICAL
RESIDENTIAL
STORAGE
LOCKERS
28 UNITS
OPEN TO
BELOW
OPEN TO
BELOW
OPEN TO
BELOW
SPA
LOBBY
SPA
RETAIL
SWITCHGEAR
ROOM
SEE NOTE A
SEE NOTE A
SEE NOTE A
SEE NOTE A
A3-205
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.
ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-1B1 1/16"=1'-0"
FLOOR PLANLEVEL B1
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTEL
PUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
NOTE A
TRASH LOADING CONCEPT IS TO UTILIZE
PORTABLE INDUSTRIAL LIFTS TO UNLOADPRIVATE CONTAINERS BY THE BUILDINGS OPERATIONAL STAFF.
CITY BINS ARE NOT INTENDED TO BE MOVED
EXCEPT BY CITY RRR STAFF.
CONCEPT WILL BE FURTHER DEVELOPED BY A
WASTE / RECYCLING MANAGEMENT CONSULTANT
DURING SCHEMATIC DESIGN.
LICENSED PREMISES
SK-0318.14
Exhibit "E-2.A"
p. 14
A3-205
A3-204 A3-203
A3-202A3-201
A3-202
A3-201A3-206
SSS
S S S
SSSSSSSSSSSSSS
SSSSSSSSSSS
SSSSSSSSSSS
S S S S
SSSSS
SSSS
C
C
S S S S S S
S
SSSS
S
HVS
CCC
C
C
S
S
C
HC HC
TO HOTEL / RETAIL
VALET
TO RESIDENTIAL
VALET
HOTEL /
RETAIL VALET
10%
20% RAMP DOWN
TO LEVEL B3
RAMP UP
TO 2ND ST
RAMP DOWN
FROM ALLEY
ONE WAY
ONE WAY
GARAGE
EXHAUST
BANQUET
BALLROOM
BANQUETSTORAGE
GARAGE
INTAKE
BANQUET
BOH
CULTURAL
USES
CULTURAL
USES
BOH
WC
SERVICE
LOBBY
GUEST
LOBBY
EVENT
LOBBY
PARKING LAYOUTS WILL BE REVISED
DURING SD TO ACCOMMODATE THE
REQUIRED 285 PARKING SPACES
10%
DN
UP
UP
M
DN
UP
DN
UP
DN
UP
4'-0" 4'-0" 5'-0"
FR
DN
UP
4'-0" 4'-0" 5'-0"
FR
PP
HH
SS
R R
R
2007-032
THE
OCEAN
AVENUE
PROJECT
GEHRY PARTNERS, LLP.ARCHITECTCLIENT
WORTHE
REAL ESTATE GROUP
TRUE NORTH A2-1B2 1/16"=1'-0"
FLOOR PLANLEVEL B2
Conceptual Plan
for Reference Only
Design Work in Progress
LEGEND
HOTELPUBLIC / OBS. DECK
SERVICE AND MECHANICAL
RETAIL/ RESTAURANT
CULTURAL USES
RESIDENTIAL
LICENSED PREMISES
SK-0318.15
Exhibit "E-2.A"
p. 15
Exhibit “F”, Page 1
EXHIBIT “F”
BONDED SCOPE OF PRESERVATION WORK
The Bonded Scope of Preservation Work shall only include relocation and rehabilitation of the exterior structural elements of the Queen Anne Landmark and Spanish Colonial Revival Landmark as approved by the City’s Landmarks Commission through the process set forth in Article 6 of this Agreement and as indicated on the building plans approved by the City’s Building Official prior to issuance of a building permit including the Bonded Scope of Preservation Work, including, without limitation, stabilization of the Queen Anne Landmark and Spanish Colonial Revival Landmark in preparation for detaching them from their foundations and moving them elsewhere on the Project Site. The Bonded Scope of Preservation Work shall also include moving the buildings, preparing new foundations, and attaching the Landmarks to their new foundations.
As to the Queen Anne Landmark, the Bonded Scope of Preservation Work shall also include exterior rehabilitation/restoration to restore the corner tower to its original height with its widow’s walk, restore the second floor porch on the west elevation to its full length, restore the front gable ornamentation, restore the brick chimney above the roof plane to its original height, replace the current contemporary asphalt shingle roof with flame-retardant wood shingles, removal of non-original dormers at the second floor of the south elevation, and reconstruction of the original side-gable on this elevation with a single dormer. The Bond shall also cover the possibility that any new openings created on the north and east elevations of the Queen Anne Landmark may need to be restored their pre-Project condition if the Project is abandoned midstream.
As to the Spanish Colonial Revival Landmark, the Bonded Scope of Preservation Work shall also include exterior rehabilitation/restoration work to reconstruct the cast stone Churrigueresque-inspired decorative surround with flanking spiral engaged columns at the west elevation entrance to the building and reconstructing the decorative sconces. The Bond shall also cover the possibility that any new openings created on the south and east elevations of the Spanish Colonial Revival Landmark may need to be restored their pre-Project condition if the Project is abandoned midstream.
The Bonded Scope of Preservation Work may also include other exterior elements of the rehabilitation of the Queen Anne and Spanish Colonial Revival Landmarks which are approved as part of the Certificate(s) of Appropriateness authorizing such rehabilitation/restoration. The Bonded Scope of Preservation Work covered by the Bond shall not include additional aspects of the Project that may be included in the Certificate(s) of the Appropriateness such as the landscaping, irrigation, lighting, mechanical, electrical or plumbing systems, or interior rehabilitation/restoration work. Notwithstanding the foregoing, the exterior rehabilitation/restoration work covered by the Bond shall include any interior construction activity that directly impacts the exterior appearance or overall structural integrity of the Queen Anne and Spanish Colonial Revival Landmarks, but only to the extent such work directly and materially impacts the exterior appearance or overall structural integrity of the Queen Anne and Spanish Colonial Revival Landmarks.