ORDINANCE NO. 1 81o 2 S - LA City Clerk · TABLE OF CONTENTS Page 1. ... ("City") and PPD GOWER I, LLC, a Delaware ("PPD Gower'), pursuant to California Government Code Section 65864,

ORDINANCE NO. ' 1_81o 2 S

An ordinance authorizing the execution of the development agreement by and between the City of Los Angeles and PPD Gower I, LLC, relating to real property in the Hollywood Community Plan area, located at 6101-6125 West Sunset Boulevard, 6100-6134 West Selma Avenue, 1521-1581 North Gower Street and 1526-1546 North El Centro Avenue, Los Angeles, California.

WHEREAS, the City Planning Commission on December 10, 2009, approved and recommended that the City Council approve the development agreement which is attached to Council File No. 10-0703 by and between the City of Los Angeles and PPD Gower I, LLC, (Development Agreement) which Development Agreement is hereby incorporated by reference and which is hereby incorporated into the provisions of this ordinance; and

WHEREAS, after due notice the City Planning Commission and the City Council did conduct public hearings on this matter; and

WHEREAS, pursuant to California Government Code Sections 65864, et seq., the City Planning Commission has transmitted to City Council its findings and recommendations; and

WHEREAS, the Development Agreement is in the public interest and is consistent with the City's General Plan including the Hollywood Community Plan; and

WHEREAS, the City Council has reviewed and considered the Development Agreement and the findings and recommendations of the City Planning Commission.

that:

NOW, THEREFORE,

THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN AS FOLLOWS:

Section 1. The City Council finds, with respect to the Development Agreement,

(a) It is consistent with the City's General Plan and with the objectives, policies and programs specified in the Hollywood Community Plan and is compatible with the uses authorized in, and the regulations prescribed for. the zone in which the real property is located;

(b) The intensity, building height and use set forth in the development agreement are permitted by or are consistent with the Hollywood Community Plan;

(c) It will not be detrimental to the publichec:~lth, safety and general welfare since it encourages the construction of a project which· is desirable and beneficial to the public. Furthermore, the development agreement specifically permits application to the

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project of rules and regulations under the Los Angeles Municipal Code Section 91.101.1 to 98.0605 relating to public health and safety;

(d) It complies with all applicable City and State regulations governing development agreements; and

(e) It is necessary to strengthen the public planning process and to reduce the public and private costs of development uncertainty.

Sec. 2. The City Council hereby approves the Development Agreement, and authorizes and directs the Mayor to execute into the Development Agreement in the name of the City of Los Angeles.

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Sec. 3. The City Clerk shall certify to the passage of this ordinance and have it published in accordance with Council policy, either in a daily newspaper circulated in the City of Los Angeles or by posting for ten days in three public places in the City of Los Angeles: one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall; one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall East; and one copy on the bulletin board located at the Temple Street entrance to the Los Angeles County Hall of Records.

I hereby certify that this ordinance ~~p3soe2~W the Council of the City of Los Angeles, at its meeting of · .

APR 0 6 2011 Approved ·-----------

Approved as to Form and Legality

CARMEN A. TRUTANICH, City Attorney

By CX~tna ~ ~ / LAURA M. CAD GAN Deputy City Attorney

Date ,)..- I - 11

File No. _ ___,C""F____,_,N""o,_. 1,_,0"--""0 7'-'0""3'-----

JUNE LAGMAY, City Clerk

Mayor

Pursuant to Charter Section 559, I approve this ordinance on behalf of the City Planning Commission and recommend that it be adopted ..

__,tc.;cl:>"'. ::J' IL' __ , 2011

M:\RP-E\Laura Cadogan\ORDINANCES\ColumbiaSqDAOrdinance.DOC

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DECLARATION OF POSTING ORDINANCE

I, MARIA VIZCARRA, state as follows: I am, and was at all times hereinafter mentioned, a

resident of the State of California, over the age of eighteen years, and a Deputy City Clerk of the City

of Los Angeles, California.

Ordinance No. 181628 - Authorizing the execution of the development agreement by and

between the City of Los Angeles and PPD Gower I, LLC, relating to real property in the

Hollywood Community Plan area, located at 6101-6125 West Sunset Boulevard, 6100-6134

West Selma Avenue, 1521-1581 North Gower Street and 1526-1546 North El Centro Avenue- a

copy of which is hereto attached, was finally adopted by the Los Angeles City Council on March 30,

2011, and under the direction of said City Council and the City Clerk, pursuant to Section 251 of the

Charter of the City of Los Angeles and Ordinance No. 172959, on April 7, 2011 I posted a true copy

of said ordinance at each of the three public places located in the City of Los Angeles, California, as

follows: 1) one copy on the bulletin board located at the Main Street entrance to the Los Angeles City

Hall; 2) one copy on the bulletin board located at the Main Street entrance to the Los Angeles City

Hall East; 3) one copy on the bulletin board located at the Temple Street entrance to the Los Angeles

County Hall of Records.

Copies of said ordinance were posted conspicuously beginning on April 7, 2011 and will be

continuously posted for ten or more days.

I declare under penalty of perjury that the foregoing is true and correct.

Signed this 7th day of April 2011 at Los Angeles, California.

Ordinance Effective Date: May 17, 2011 Council File No. 10-0703

Rev. (2/21/06)

DEVELOPMENT AGREEMENT

between

THE CITY OF LOS ANGELES

and

PPD GOWER I, LLC

_ _,2010

TABLE OF CONTENTS

Page

1. DEFINITIONS .................................................................................................................. 1

2. RECITALS OF PREMISES, PURPOSE AND INTENT .................................................... 7

2.1 State Enabling Statute .......................................................................................... 7

2.2 City Procedures .................................................................................................... 8

2.2.1 Planning Commission Action .................................................................... 8

2.2.2 City Council Action .................................................................................... 8

2.3 Purpose of this Agreement ................................................................................... 9

2.3.1 Developer's Objectives ............................................................................. 9

2.3.2 Mutual Objectives ..................................................................................... 9

2.3.3 Public Benefits ........................................................................................ 1 0

2.3.4 Applicability of the Agreement ................................................................ 11

3. AGREEMENT AND ASSURANCES .............................................................................. 11

3.1 Agreement and Assurance on the Part of Developer ......................................... 11

3.1.1 Project Development .............................................................................. 11

3.1.2 Phasing of Development... ...................................................................... 12

3.2 Additional Obligation of Developer as Consideration for this Agreement... ........ 13

3.2.1 Affordable Housing ................................................................................. 13

3.2.2 Contribution for Off-Site Streetscape Improvements .............................. 14

3.2.3 Transportation Demand Management Plan ............................................ 15

3.2.4 Neighborhood Traffic Improvement Plan ................................................ 15

3.2.5 Construction Trade Prevailing Wage ...................................................... 16

3.2.6 Local Hiring and Job Training ................................................................. 16

3.2.7 Contribution to Los Angeles Community College Workforce Development Program ............................................................................ 16

3.2.8 Community Room ................................................................................... 17

3.2.9 Live Work lncentives ............................................................................... 17

3.2.10 Rehabilitation to Secretary of Interior Standards .................................... 17

CPC-2007-9911-GPA-ZC-HD-CUB-CUX-CU-SPR 11/30/2009

TABLE OF CONTENTS (continued)

Page

3.2.11 Historic Interpretative Exhibit... ............................................................... 17

3.2.12 LEED Silver Certification ........................................................................ 18

3.2.13 Neighborhood Protection Plan ................................................................ 18

3.2.14 Contribution to Hollywood Cap Park ....................................................... 18

3.3 Agreement and Assurances on the Part of the City ........................................... 18

3.3.1 Entitlement to Develop ............................................................................ 19

3.3.2 Changes in Applicable Rules .................................................................. 19

3.4 Subsequent Development Review ..................................................................... 20

3.5 Effective Development Standards ...................................................................... 21

3.6 Consistency with Applicable Rules ..................................................................... 21

3.7 Moratoria or Interim Control Ordinances ............................................................ 22

3.8 Interim Uses ....................................................................................................... 22

4. ANNUAL REVIEW, DEFAULT PROVISIONS ................................................................ 22

4.1 Annual Review ................................................................................................... 22

4.1.1 Annual Review ........................................................................................ 23

4.1.2 Pre-Determination Procedure ................................................................. 23

4.1.3 Director's Determination ......................................................................... 23

4.1.4 Appeal by Developer .............................................................................. 24

4.1.5 Period to Cure Non-Compliance ............................................................. 24

4.1.6 Failure to Cure Non-Compliance Procedure ........................................... 24

4.1.7 Termination or Modification of Agreement .............................................. 25

4.1.8 Satisfaction Letter ................................................................................... 25

4.1. 9 Reimbursement of Costs ........................................................................ 26

4.1.10 City's Rights and Remedies Against a Transferee ................................. 26

4.1.11 Evidence of Compliance Applicable to a Particular Development Agreement Property ................................................................................ 26

4.2 Default Provisions .............................................................................................. 26

CPC-2007 -9911-GPA-ZC-HD-CUB-CUX-CU-SPR 11/30/2009

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Page

4.2.1 Default by Developer .............................................................................. 26

4.2.2 Default by the City .................................................................................. 28

4.2. 3 Damages and Specific Performance ...................................................... 29

4.2.4 No Monetary Damages ........................................................................... 30

5. DISPUTE RESOLUTION ............................................................................................... 30

5.1 Dispute Resolution Proceedings ........................................................................ 30

5.2 Arbitration ........................................................................................................... 30

5.3 Arbitration Procedures ........................................................................................ 31

5.4 Extension of Agreement Term ............................................................................ 31

6. GENERAL PROVISIONS ............................................................................................... 31

6.1 Effective Date ..................................................................................................... 31

6.2 Term ................................................................................................................... 31

6.2.1 Tentative Map Extensions ...................................................................... 32

6.3 Impact Fees ........................................................................................................ 32

6.4 Appeals to the City Council ................................................................................ 32

6.5 Enforced Delay; Extension of Time of Performance ........................................... 33

6.6 Cooperation and Implementation ....................................................................... 34

6.6.1 Processing .............................................................................................. 34

6.6.2 Other Governmental Permits .................................................................. 34

6.6.3 Cooperation in the Event of Legal Challenge ......................................... 35

6.6.4 Relationship of the Parties ...................................................................... 35

6.6.5 Not an Amendmen\... .............................................................................. 35

6.7 Hold Harmless and lnsurance ............................................................................ 36

6. 7.1 Hold Harmless ........................................................................................ 36

6.8 Legal Action ........................................................................................................ 36

6.9 Applicable Law ................................................................................................... 36

6.10 Amendments ...................................................................................................... 37


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Page

6.11 Assignment... ...................................................................................................... 37

6.12 Relationship of Parties ....................................................................................... 38

6.13 Covenants .......................................................................................................... 38

6.14 Notices ............................................................................................................... 38

6.15 Severability ......................................................................................................... 40

6.16 Waiver ................................................................................................................ 40

6.17 Recording ........................................................................................................... 40

6.18 Constructive Notice and Acceptance .................................................................. 40

6.19 Successors and Assignees ................................................................................ 41

6.20 No Third Party Beneficiaries .............................................................................. .41

6.21 Entitlement to Written Notice of Default... .......................................................... .41

6.22 Discretion to Encumber ...................................................................................... 42

6.23 Entire Agreement .............................................................................................. .42

6.24 Legal Advice; Neutral Interpretation; Headings, Table of Contents, and lndex ................................................................................................................... 42

6.25 Counterparts ....................................................................................................... 42

6.26 Mortgagee Protection ........................................................................................ .43

6.27 Time is of the Essence ....................................................................................... 43


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DEVELOPMENT AGREEMENT

This Development Agreement ("Agreemenf') is executed this ___ day of

-------' 2010, by and between the CITY OF LOS ANGELES, a municipal

corporation ("City") and PPD GOWER I, LLC, a Delaware ("PPD Gower'), pursuant to California

Government Code Section 65864, et seq., and the implementing procedures of the City, based

upon an initial 2007 application (case number CPC-2007-9911-GPA-ZC-HD-CUB-CUX-CU-

SPR) and an updated application dated July 22, 2009, with respect to the following:

1. DEFINITIONS.

For all purposes of this Agreement, except as otherwise expressly provided or

unless the context requires otherwise:

1.1 "Assignment Agreement" means a written agreement between the

Developer and a Transferee of the Developer, consistent with the terms of this Agreement, in

which the parties agree to specific obligations of this Agreement being transferred from the

Developer to the Transferee of the Developer.

1.2 "Applicable Rules" means the rules, regulations, ordinances and

officially adopted policies of the City or the City's Community Redevelopment Agency in force as

of the Effective Date of this Agreement, including, without limitation, the Project Approvals.

Notwithstanding the language of this Section or any other language in this Agreement, all

specifications, standards and policies regarding the design and construction of public works

facilities, if any, shall be those that are in effect at the time the Project plans are being

processed for approval and/or under construction. Furthermore, the Applicable Rules shall

include the City-wide programs enacted after the Effective Date of this Agreement for (1) storm

water pollution abatement mandated by the Federal Water Pollution Control Act of 1972, and


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subsequent amendments thereto and (2) child care facilities mandated by the City of

Los Angeles by ordinance to be provided generally by employers located in the City of

Los Angeles.

1.3 "C Zone" means Section 12.12 et seq. of the City's zoning ordinance, as

amended, as of the date of this Agreement.

1.4 "CEQA" means the California Environmental Quality Act (California Public

Resources Code §§ 21000 et seq), the CEQA Guidelines (California Code of Regulations Title

14, Chapter 3, §§ 15000 et seq.) and the City of Los Angeles CEQA Procedures.

1.5 "Community Plan" means the Hollywood Community Plan.

1.6 "Completion of the Project" means the completion of construction

necessary to construct the Project in accordance with the Project Approvals and issuance of a

Certificate of Occupancy for the Project.

1. 7 "CPI" shall mean the Consumer Price Index for all Urban Consumers (all

items) for the Los Angeles/Anaheim/Riverside Statistical Area, as reported by the United States

Department of Labor, Bureau of Labor Statistics.

1.8 "Developer" means PPD Gower I, a Delaware LLC and any subsequent

transferees of the Property whether in whole or in part and any assignees of this Agreement.

1.9 "Development Agreement Act" means Section 65864, et seq. of the

California Government Code.

1.10 "Director" or "Director of Planning" means the Director of the City of Los

Angeles Planning Department.


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1.11 "Discretionary Action" or "Discretionary Approval" means an action

which requires the exercise of judgment, deliberation or a decision on the part of the City,

including any board, commission or department and any officer or employee thereof, in the

process of approving or disapproving a particular activity, as distinguished from an activity which

merely requires the City, including any board, commission or department, or any officer or

employee thereof, to determine whether there has been compliance with statutes, ordinances,

regulations or resolutions.

1.12 "Effective Date" is the date on which this Agreement is attested by the

City Clerk of the City of Los Angeles after execution by Developer and the Mayor of the City of

Los Angeles.

1.13 "General Plan" means the General Plan of the City, as amended, as of

the date of this Agreement.

1.14 "Hollywood Community Plan" means the Hollywood Community Plan of

the City, as amended, as of the date of this Agreement.

1.15 "Impact Fee" means impact fees, linkage fees, exaction, assessments,

fair share charges or other similar impact fees or charges imposed on an in connection with new

development by the City pursuant to rules, regulations, ordinances and policies of the City as of

the Effective Date of this Agreement. Impact Fees shall be pro-rated based on those individual

ministerial permits to the entirety of the Project. Impact Fees shall be paid prior to the issuance

of a certificate of occupancy for any phase of the Project that would require the payment of

these fees. Impact Fees do no include (i) Processing Fees or (ii) other City-wide fees or

charges of general applicability, provided that such City-wide fees or charges are not imposed

on impacts of new development.


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1.16 "Interim Uses" means those uses which are permitted pursuant to the

Project Approvals, but prior to the issuance of a certificate of occupancy for the new square

footage to be developed pursuant to the Project Approvals, as set forth in Exhibit "C."

1.17 "LA DOT" means the Los Angeles Department of Transportation.

1.18 "Planning Commission" means the City of Los Angeles Planning

Commission.

1.19 "Processing Fees" means all fees required by the City including, but not

limited to, fees for land use applications, project permits, building applications, building permits,

grading permits, encroachment permits, tract or parcel maps, lot line adjustments and

certificates of occupancy which are necessary to accomplish the intent and purpose of this

Agreement. Expressly exempted from Processing Fees are all Impact Fees, linkage fees or

exactions that may be imposed by the City on development projects pursuant to laws enacted

after the Effective Date, except as specifically provided for in this Agreement. Processing Fees

include those impact fees, linkage fees and exactions that are in effect as of the Effective Date,

the amounts of which are subject to ongoing annual decreases and increases that shall be

calculated at time of payment. The amount of the Processing Fees to be applied in connection

with the development of the Project shall be the amount which is in effect on a City-wide basis

at the time an application for the City action is made unless an alternative amount is established

by the City in a subsequent agreement. Notwithstanding the language of this Section or any

other language in this Agreement, Developer shall not be exempt from the payment of fees, if

any, imposed on a Citywide basis as part of the City's program for storm water pollution

abatement mandated by the Federal Water Pollution Control Act of 1972 and subsequent

amendments thereto, unless a waiver of these fees is provided by the City in a subsequent

agreement.


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1.20 "Project" means the development of the Project Site with 200 residential

units, 442,610 square feet of office space, 41,300 square feet of retail, restaurant and bar uses,

125 hotel rooms and the demolition of Studio B/C, as more fully described in the Project

Description of the Final EIR (SCH # 2007041112) as set forth in Exhibit "A."

1.21 "Project Approvals" means those Discretionary Actions authorizing the

Project which have been approved by the City on or before the Effective Date and not rescinded

or superseded by City action taken on or before the Effective Date. Project Approvals include,

but are not limited to the approval of the following: (a) General Plan Amendment to amend the

adopted Hollywood Community Plan's land use designation for the Project Site from the

"Commercial Manufacturing" Industrial land use designation to the "Regional Center"

Commercial land use designation; (b) vesting zone change and height district change from

[Q]C4-1VL-SN to C4-2-SN; (c) City Planning Commission approval for a 10-year period for

utilizing the Project Approvals; (d) conditional use approval to allow the on- and off-site sale,

dispensing and consumption of a full line of alcoholic beverages; (e) conditional use approval to

allow live entertainment/patron dancing; (f) vesting Conditional use approval to allow a hotel use

within five hundred feet of an R Zone; (g) vesting Conditional use approval to allow a motion

picture and television studio and related incidental uses that are located on a motion picture or

television studio site in a C Zone; (h) site plan approval; (i) vesting tentative tract map No.

68254; (j) this development agreement; and (k) certification of the Final EIR. Project Approvals

includes all conditions of approval and mitigation measures imposed as part of the Project

Approvals.

1.22 "Property" or "Project Site" means the parcels of real property bounded

by Selma Avenue, Sunset Boulevard, Gower Street and El Centro Avenue and described as

Lots 1 4, FR 2, FR 3 in Tract TR 27285 and lots FR 1, 2, 3, 4, 5, 6, FR 7, in the Blondeau tract

and known as 6121 West Sunset Boulevard, Los Angeles, California 90028, an approximately


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204,333-square-foot (4.68-acre) rectangular shaped site comprised of 11 lots (Assessor Parcel

Numbers: 5546026024, 5546026025, 5546026028, 5546026029, 5546026030, 5546026003,

5546026004, and 5546026005), as set forth in Exhibit "B."

1.23 "R Zone" means Section 12.09 et seq. of the City's zoning ordinance, as

amended, as of the date of this Agreement.

1.24 "Reserved Powers" means the rights and authority excepted from this

Agreement's restrictions on the City's police powers and which are instead reserved to the City.

The Reserved Powers include the powers to enact regulations or take future Discretionary

Actions after the Effective Date of this Agreement that may be in conflict with the Applicable

Rules, but: ( 1) are necessary to protect the public health and safety, and are generally

applicable on a City-wide basis (such can be applicable on a non-City-wide basis in the event of

natural disasters as found by the Mayor or City Council such as floods, earthquakes and similar

acts of God); (2) are amendments to Chapter V, Article 7 of the Los Angeles Municipal Code

Section 57.01.01, et seq. (Los Angeles Fire Code) or Chapter IX, Article 1 of the Los Angeles

Municipal Code Section 91.0101, et seq. (Los Angeles Building Code) regarding the

construction, engineering and design standards for private and public improvements to be

constructed on the Property, provided that such changes are (i) necessary to the health and

safety of the residents of the City; and (ii) are generally applicable on a City-wide basis (such

can be applicable on a non-City-wide basis in the event of natural disasters as found by the

Mayor or City Council, such as floods, earthquakes, and similar acts of God); (3) are necessary

to comply with state and federal laws and regulations (whether enacted prior or subsequent to

the Effective Date of this Agreement); or (4) constitute Processing Fees imposed or required by

the City to cover its actual costs in processing applications, permit requests and approvals of

the Project, or in monitoring compliance with permits issued or approvals granted for the

performance of any conditions imposed on the Project.


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1.25 "Studio B/C" means the approximately 36,000 square foot existing

structure located on the Project Site.

1.26 "Term" means the term of this Agreement as described in Section 6.2 of

this Agreement.

1.27 "Transferee" means individually or collectively, Developer's successors in

interest, assigns or transferees of all or any portion of the Property.

2. RECITALS OF PREMISES, PURPOSE AND INTENT.

2.1 State Enabling Statute. To strengthen the public planning process,

encourage private participation in comprehensive planning and reduce the economic risk of

development, the Legislature of the State of California adopted the Development Agreement

Act, which authorizes any city to enter into binding development agreements establishing

certain development rights in real property with persons having legal or equitable interest in

such property. Section 65864 of the Development Agreement Act expressly provides as

follows:

"The Legislature finds and declares that:

(a) The lack of certainty in the approval of development

projects can result in a waste of resources, escalate the cost of housing

and other development to the consumer, and discourage investment in

and a commitment to comprehensive planning which would make

maximum efficient utilization of resources at the least economic cost to

the public.

(b) Assurance to the applicant for a development

project that upon approval of the project, the applicant may proceed with


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the project in accordance with existing policies, rules and regulations, and

subject to conditions of approval, will strengthen the public planning

process, encourage private participation in comprehensive planning, and

reduce the economic costs of development.

(c) The lack of public facilities, including, but not limited

to, streets, sewage, transportation, drinking water, school and utility

facilities, is a serious impediment to the development of new housing.

Whenever possible, applicant and local governments may include

provisions in agreements whereby applicants are reimbursed overtime for

financing of public facilities."

Notwithstanding the foregoing, to ensure that it remains responsive and

accountable to its residents while pursuing the benefits of development agreements

contemplated by the Legislature, the City: (i) accepts restraints on its police powers contained

in development agreements only to the extent and for the duration required to achieve the

mutual objectives of the parties; and (ii) to offset such restraints, seeks public benefits which go

beyond those obtained by traditional City controls and conditions imposed on development

project applications.

2.2 City Procedures.

2.2.1 Planning Commission Action. The Planning Commission

conducted a duly-noticed public hearing on December 1 0, 2009 and recommended approval of

this Agreement on the same date.

2.2.2 City Council Action. The City Council conducted a duly-

noticed public hearing on ____ , and adopted Ordinance Nos. _____ to become

CPC-2007 -9911-GPA-ZC-HD-CUB-CUX-CU-SPR 1113012009

8

effective on the thirty-first day after publication, or on the forty-first day after posting, which

approved this Agreement and the Council found that the provisions of this Agreement are

consistent with the General Plan, the Community Plan and the Los Angeles Municipal Code and

authorized the execution of this Agreement.

2.3 Purpose of this Agreement.

2.3.1 Developer's Objectives. In accordance with the legislative

findings set forth in the Development Agreement Act, and with full recognition of the City's policy

of judicious restraints on its police powers, Developer wishes to obtain reasonable assurances

that the Project may be developed in accordance with the Applicable Rules and with the terms

of this Agreement and subject only to the City's Reserved Powers. To the extent of Project

development, and as provided by Section 3.3.1, Developer anticipates making capital

expenditures in reliance upon this Agreement. In the absence of this Agreement, Developer

would have no assurance that it can complete the Project for the uses and to the density,

intensity or height of development set forth in this Agreement from what is set forth in the

Project Approvals. This Agreement, therefore, is necessary to assure Developer that the

Project will not be (1) reduced or varied in density, intensity, or height, permitted demolition,

uses, operating hours or other development entitlements under this Agreement; (2) subjected to

new rules, regulations, ordinances or policies which are not related to compliance with State or

Federal mandates or health and safety conditions; or (3) subjected to delays for reasons other

than City-wide health and safety enactments related to critical situations such as, but not limited

to, the lack of water availability or sewer or landfill capacity.

2.3.2 Mutual Objectives. Development of the Project in accordance

with this Agreement will provide for the orderly development of the Property in accordance with

the objectives set forth in the General Plan and the Community Plan. Moreover, a development


9

agreement for the Project will eliminate uncertainty in planning for and securing orderly

development of the Project, assure installation of necessary improvements, assure attainment

of maximum efficient resource utilization within the City at the least economic cost to its citizens

and otherwise achieve the goals and purposes for which the Development Agreement Act was

enacted. The parties believe that such orderly development of the Project will provide many

public benefits to the City through the imposition of the development standards and

requirements under the provisions and conditions of this Agreement, including without limitation,

implementation of mitigation measures, increased tax revenues, installation of on-site and off-

site improvements, the revitalization of an area within the redevelopment project area,

development of much needed new housing and office space, the renovation and rehabilitation of

important historic buildings, the development of a major mixed use project that will support

public transportation investments, and the creation and retention of approximately 1,600 full

time desirable jobs within the City and thousands of construction jobs. Additionally, although

development of the Project in accordance with this Agreement will restrain the City's land use or

other relevant police powers, the Agreement will provide the City with sufficient Reserved

Powers during the Term hereof to remain responsible and accountable to its residents. In

exchange for these and other benefits to the City, Developer will receive assurance that the

Project may be developed during the Term of this Agreement in accordance with the Applicable

Rules and Reserved Powers, subject to the terms and conditions of this Agreement.

2.3.3 Public Benefits. This Agreement provides assurances that

the public benefits identified in Sections 2.3.2 and 3.2 will be achieved and developed in

accordance with the Applicable Rules and Project Approvals and with the terms of this

Agreement and subject to the City's Reserved Powers. The Project will provide local and

regional public benefits to the City, including without limitation, those public benefits listed in

Section 2.3.2 and Section 3.2.


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2.3.4 Applicability of the Agreement. This Agreement does not:

(1) grant density, intensity or height, permitted demolition, use or other development

entitlements in excess of that otherwise established in the Applicable Rules; (2) eliminate future

Discretionary Actions relating to the Project if applications requiring such Discretionary Action

are initiated and submitted by the owner of the Property after the Effective Date of this

Agreement; (3) guarantee that Developer will receive any profits from the Project; (4) prohibit

the Project's participation in any benefit assessment district that is generally applicable to

surrounding properties; or (5) amend the City's General Plan. This Agreement has a fixed

Term, as provided in Section 6.1. Furthermore, in any subsequent actions applicable to the

Property after expiration of this Agreement, the City may apply such new rules, regulations and

policies as are contained in its Reserved Powers, as legally apply to the Property.

3. AGREEMENT AND ASSURANCES.

3.1 Agreement and Assurance on the Part of Developer. In consideration

for the City entering into this Agreement, and as an inducement for the City to obligate itself to

carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the

premises, purposes and intentions set forth in Article 2 of this Agreement, Developer hereby

agrees as follows:

3.1.1 Project Development. Developer agrees that it will use its

best efforts, in accordance with its own business judgment and taking into account its program

delivery needs, market conditions and economic considerations, to develop the Project in

accordance with the terms and conditions of this Agreement. However, nothing in this

Agreement shall be deemed to obligate Developer to initiate or complete development of the

Project or any portion thereof within any period of time or at all, or deemed to prohibit Developer


11

from seeking any necessary land use approvals for any different land use project on the

Property.

(a) Dedication of Land for Public Purposes.

Provisions for the dedication of land for public purposes are set forth in

Exhibit "A" attached hereto.

(b) Description of Transportation Improvements.

The transportation improvements to be included within the scope of the

Project are set forth in Exhibit "A" attached hereto.

(c) Intensity of the Project. The development

intensity of the Project is shown in Exhibit "C" attached hereto.

(d) Maximum Height of the Project. The maximum

height of each portion of the Project's proposed building is shown on

Exhibit "C" attached hereto.

3.1.2 Phasing of Development. The parties acknowledge that

Developer cannot at this time predict when or the rate at which the Property would be

developed. Such decisions depend upon numerous factors which are not all within the control

of Developer, such as its program delivery needs, financing and economic consideration.

Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo

(1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of

development permitted a later adopted initiative restricting the timing of development and

controlling the parties' agreement, it is the intent of Developer and the City to hereby

acknowledge and provide for the right of Developer to develop the Project in such order and at

such rate and time as Developer deems appropriate within the exercise of its sole and


12

subjective business judgment. The City acknowledges that such a right is consistent with the

intent, purpose and understanding of the parties to this Agreement. Developer will use its best

efforts, in accordance with its own business judgment and taking into consideration its program

delivery needs, financing and other economic considerations influencing its business decision,

to commence or to continue development, and to develop the Project in accordance with the

provisions and conditions of this Agreement and with the Applicable Rules.

The grants set forth in the Project Approvals and herein, including hours of

operation and permitted uses, shall be effective and operative as of the date the Project

Approvals are granted by the City and are not dependent upon Developer developing the

Project.

3.2 Additional Obligation of Developer as Consideration for this

Agreement. The development assurance provided by this Agreement, the implementation of

the Project and the resulting construction of the planned facilities will allow Developer to develop

a world-class mixed use project in the heart of Hollywood that will enhance the City's economic

base and help revitalize Hollywood. The Project will provide needed housing, as well as a mix

of hotel, commercial and office uses to an otherwise underutilized property located along a

major transit corridor and within a quarter mile radius of several high-capacity transit lines

including the Metro Rapid Bus and Metro Red Line. In conformance with the provisions and

goals of the Hollywood Redevelopment Plan, the Project will serve a public purpose objective by

providing significant common open space and rehabilitating an architecturally or historically

significant building. Accordingly, Developer hereby covenants to provide the public benefits as

set forth below:

3.2.1 Affordable Housing. Developer will make a one-time

payment equal to Seventy Five Thousand Dollars ($75,000) (the "Unit Amount") multiplied by


13

fifteen percent (15%) of the total number of market rate units in the Project. If the Applicant

does not make the payment within five years from the Effective Date of this Development

Agreement, the Unit Amount shall be adjusted annually commencing with the beginning of the

sixth year after the Effective Date by a percentage equal to the percentage change in the CPI

for the preceding year. In no event shall the Unit Amount ever exceed One Hundred Thousand

Dollars ($1 00,000). The payment will be made to (i) an affordable housing non-profit

corporation to cause to be constructed affordable housing units to be located within the

boundaries of the Hollywood Redevelopment Project Area and City Council District 13, or if

such payment to an affordable housing non-profit is not feasible, then (ii) the affordable housing

trust fund of the Community Redevelopment Agency ("CRA") to be used by the CRA to finance

the construction of affordable housing in the Hollywood Redevelopment Project Area. The

payment will be made by the Developer in-lieu of building affordable housing on the Project Site

or elsewhere. The payment may be made to an affordable housing non-profit corporation if,

prior to issuance of any certificate of occupancy for the Projecfs residential units, the non-profit

has secured a building permit for an affordable housing project within the boundaries of the

Hollywood Redevelopment Project Area and Council District 13, or has made reasonable efforts

to obtain such building permit to the satisfaction of the Director of Planning in consultation with

City Council District 13. After the time the payment is made to the non-profit housing

corporation, the non-profit housing corporation shall submit annual construction reports detailing

progress on the construction of the affordable housing project until a Certificate of Occupancy is

issued for the affordable housing project. If the non-profit corporation has not secured a

building permit, and has not made reasonable efforts to obtain such building permit to the

satisfaction of the Director of Planning in consultation with City Council District 13 for an

affordable housing project or projects within the boundaries of the Hollywood Redevelopment

Project Area and Council District 13 by the time such certificate of occupancy is ready to be

issued, then the payment will be made to the affordable housing trust fund of the CRA for use in


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the Hollywood Redevelopment Project Area. The City will work with the CRA to ensure that the

CRA uses its best efforts to ensure those funds are utilized within the boundaries of the

Hollywood Redevelopment Project Area and Council District 13. Developer shall submit a

progress report detailing compliance with this provision to the Director of Planning and Council

District 13 at the time of the issuance of the first building permit for the Project. Upon

satisfaction of the affordable housing requirements, the Director of Planning, in consultation with

the City Council District 13, shall issue to the Developer a written certification that Developer

has satisfied the affordable housing requirements of this Agreement that must be met prior to

the issuance of any certificate of occupancy for the Project.

3.2.2 Contribution for Off-Site Streetscape Improvements.

Developer will make a one-time payment of $400,000 to the City's Council District 13 Street

Improvement Fund or similar fund, which payment will be used to construct certain off-site

streetscape improvements planned for Hollywood as part of the Community Redevelopment

Agency's Hollywood Streetscape Plan, not including the improvements surrounding the Project

Site. The priority for such off-site improvements would generally be along (i) on Sunset

Boulevard between Gower Street and Argyle Avenue, (ii) on Selma Avenue between Gower

Street and Argyle Avenue and (iii) on Gower Street between Selma Avenue and Hollywood

Boulevard. The Developer will submit this payment to the City prior to the issuance of a building

permit for the Project.

3.2.3 Transportation Demand Management Plan. Prior to the

issuance of any certificate of occupancy for the proposed office building, the Developer will

cause to be developed and will implement a Transportation Demand Management Plan ("TDM

Plan") that will provide and coordinate programs at the Project Site and in the Hollywood area in

order to limit Project traffic impacts and encourage the use of alternative transportation. The I

CPC-2007-9911-GPA-ZC-HD-CUB-CUX-CU..SPR 11/30/2009

15

TOM Plan will be approved by the LADOT prior to the issuance of the first certificate of

occupancy for the Project. The Developer will provide the Director of Planning a copy of the

approved TOM Plan. The Developer's one-time first year cost to implement the TOM Plan shall

not exceed $475,000 and the annual cost for the transportation coordinator and maintenance

shall not exceed $100,000. Additional details regarding the TOM Plan are set forth in Exhibit

"D." As part of the Annual Review process required by Section 4.1 of this Agreement, the

Developer shall demonstrate to the Director of Planning how it has implemented the TOM Plan.

3.2.4 Neighborhood Traffic Improvement Plan. After the issuance

of a Certificate of Occupancy, Developer will work with the Los Angeles Department of

Transportation, Council District 13, the Director of Planning, and the local Selma-Harold Way-

LaBaig neighborhood to assist in the development of a Neighborhood Traffic Management Plan

to address ancillary traffic issues. This Plan may consider one-way vehicular traffic where

feasible, and shall maintain all existing public vehicular and public pedestrian access. Upon the

issuance of any Certificate of Occupancy for the Project, Developer shall pay up to $50,000 for

any necessary traffic studies and consultants costs. Upon the issuance of any Certificate of

Occupancy for the Project, Developer shall pay up to $100,000 for any necessary traffic

measures to reduce the Projecfs secondary traffic impacts on the neighborhood as needed.

3.2.5 Construction Trade Prevailing Wage. Construction workers

employed in connection with the development of the Project, including core and shell

construction, will be paid no less than the prevailing rate of wages. The Developer will submit

proof of compliance with this obligation prior to the issuance of any certificate of occupancy for

the Project.

3.2.6 Local Hiring and Job Training. Developer will work with the

Hollywood Work Source Center or similar organization working in the Hollywood area to


16

implement a First Source Hiring Policy for exempt employees. The purpose of the First Source

Hiring Policy is to facilitate the employment of local job applicants by employers in the Project.

The Developer, contractors· and tenants will participate in the First Source Hiring Policy under

which the First Source Referral Systems will promptly refer qualified, trained applicants to

employers for available jobs. The Developer, contractor and tenants will have no responsibility

to provide notice of job openings in the First Source Reference System if the First Source

Referral System is not fulfilling its obligations under the First Source Hiring Policy to timely refer

qualified, trained applicants. The First Source Referral System will also coordinate job-training

programs with appropriate community based job training organizations. The Developer will

submit proof of compliance with this obligation prior to the issuance of any certificate of

occupancy for the office building.

3.2.7 Contribution to Los Angeles Community College

Workforce Development Program. Developer will contribute $100,000 to the Los Angeles

Community College Workforce Development Program, which will earmark the contribution for its

hospitality program that helps prepare students for careers in hotel management and other

hospitality focused jobs. The Developer will submit proof of compliance with this obligation prior

to the issuance of a building permit for the proposed hotel building.

3.2.8 Community Room. Developer will provide an approximately

650 square foot community room at the street level on Selma Avenue at the Project Site for use

at no cost by various community groups including, but not limited to, the local Neighborhood

Council. The Developer will submit proof of compliance with this obligation prior to the issuance

of any certificate of occupancy for the building within which the community room will be located

within the Project Site.


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3.2.9 Live Work Incentives I Local Priority Housing. Developer

will grant priority for purchasing condominium units at full market price to employees that work

on-site in an effort to encourage residents to live where they work. This will serve to increase

commercial revenue in the Hollywood area and reduce traffic congestion. The Developer will

submit proof of compliance which shall include a marketing plan and materials with this

obligation prior to the issuance of any certificate of occupancy.

3.2.10 Rehabilitation to Secretary of Interior Standards.

Developer will rehabilitate to the Secretary of Interior Standards the exterior of the three historic

buildings and the interior portions of the three historic buildings designed by William Lescaze

that contain character-defining features, which buildings total approximately 105,510 square

feet. In addition, Developer will not to demolish Studio B/C until it is prepared to commence

construction of the proposed office tower. The Developer will submit proof of compliance with

this obligation prior to the issuance of any certificate of occupancy for such historic buildings.

3.2.11 Historic Interpretative Exhibit. Developer will provide a

publicly accessible space within the Project Site for an exhibit displaying photographs,

memorabilia, video and audio clips and other artistic elements that celebrate the history of radio

and television broadcasting at the Project Site and help inform the public of Columbia Square's

role in both broadcasting and Hollywood's history. This Exhibit shall generally follow the

documentation provided in the file for case CPC-2007-9911-GPA-ZC-HD-CUB-CUX-CU-SPR.

The Developer will not be required to expend more than $50,000 for such interpretive exhibit,

including the cost of obtaining items, constructing the exhibit, retaining consultants and other

functions. The Developer will submit proof of compliance with this obligation, including the

location and program, prior to the issuance of a certificate of occupancy for the Project.


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3.2.12 LEED Silver Certification. Developer will cause the Project's

residential, hotel and office buildings to be eligible for LEED Silver certification. The Developer

will submit proof of compliance with this obligation prior to the issuance of any certificate of

occupancy.

3.2.13 Contribution to Hollywood Cap Park. Developer will

contribute $35,000 to the Friends of the Hollywood Cap Park to fund activities related to the

Hollywood Cap Park. The Developer will submit proof of compliance with this obligation prior to

the issuance of any building permit.

3.2.14 Open Space. Developer will develop and maintain an

approximately 3,000 square foot pocket park on the Project site and shall renovate and maintain

the approximately 18,400 square foot courtyard at the ground level of the Project site, both of

which shall be accessible to the public. The plans submitted to the City's Department of

Building and Safety to obtain a building permit will depict the approximately 3,000 square foot

pocket park and the approximately 18,400 square foot courtyard, both of which will be

constructed prior to the issuance of any certificate of occupancy.

3.2.15 Studio A. Developer will make commercially reasonable

efforts to reuse Studio A as a production, post production, broadcasting or performance space.

3.3 Agreement and Assurances on the Part of the City. To effectuate the

parties' respective objectives set forth in Article 2 above, and to induce Developer to agree to

the covenants and conditions set forth in the preceding Section 3.1, the City hereby agrees and

assures Developer that, subject to its Reserved Powers: (i) only the Applicable Rules and the

terms and conditions of this Agreement shall be applied to the Project during the Term hereof;

and (ii) the Applicable Rules and terms and conditions of this Agreement are vested contractual

rights of Developer to develop this Project during the Term of this Agreement in furtherance of


19

such agreement and assurances, and pursuant to the authority and provisions set forth in the

Development Agreement Act and the resolution adopted by the City Council on ____ ,

2009 under Council File No. _____ , City, in entering into this Agreement, hereby agrees

and acknowledges that:

3.3.1 Entitlement to Develop. Developer has the right to develop

the Project, subject to the terms and conditions of this Agreement, in accordance with the

Applicable Rules and subject only to the Reserved Powers.

3.3.2 Changes in Applicable Rules.

(a) Nonapplication of Changes in Applicable Rules.

Any change in, or addition to, the Applicable Rules, including, without

limitation, any change in any applicable general, district or specific plans,

zoning or building regulations, adopted or becoming effective after the

Effective Date of this Agreement, including, without limitation, any such

change by means of ordinance, City Charter amendment, initiative,

referendum, resolution, motion, policy, order or moratorium, initiated or

instituted for any reason whatsoever and adopted by the Mayor, City

Council, Planning Commission or any other Board, Commission or

Department of the City, or any officer or employee thereof, or by the

electorate, as the case may be, which would, absent this Agreement,

otherwise be applicable to the Project and which would conflict in any way

with the Applicable Rules or this Agreement, shall not be applied to the

Project unless such change represents an exercise by the City of its

Reserved Powers.


20

(b) Changes in Building and Fire Codes.

Notwithstanding any provisions of this Agreement to the contrary,

development of the Project shall be subject to changes occurring from

time to time in the Uniform Building Code as such Code is adopted by the

City of Los Angeles. In addition, development of the Project shall be

subject to changes occurring from time to time in the Los Angeles Fire

and Building Codes, Chapter V, Article 7, Section 57.01.01, et seq. and

Chapter IX, Article 1, Section 91.0101, et seq. of the Los Angeles

Municipal Code, respectively, regarding the construction, engineering and

design standards for both public and private improvements provided that

such changes are (1) necessary to the health and safety of the residents

of the City; and (2) are generally applicable on a City-wide basis (such

can be applicable on a non-City-wide basis in the event of natural

disasters as found by the Mayor or City Council, such as floods,

earthquakes and similar acts of God).

(c) Changes Mandated by Federal or State Law.

This Agreement shall not preclude the application to the Project of

changes in, or additions to, the Applicable Rules, including rules,

regulations, ordinances, fees and official policies, to the extent that such

changes or additions are mandated to be applied to developments such

as this Project by state or federal regulations, pursuant to the Reserved

Powers. In the event state or federal laws or regulations prevent or

preclude compliance with one or more provisions of this Agreement, such

provisions shall be modified or suspended as may be necessary to

comply with such state or federal laws or regulations.


21

3.4 Subsequent Development Review. The City shall not require

Developer to obtain any subsequent Discretionary Approvals or permits for the development of

the Project in accordance with this Agreement other than those permits or Discretionary

Approvals which are required by the Applicable Rules or the Reserved Powers. To the extent

that any additional Discretionary Approvals are required for the development of the Project,

such Discretionary Approvals shall be determined in accordance with Section 3.5. However,

any subsequent Discretionary Action or Discretionary Approval initiated by Developer which

increases the intensity or height, density, permitted demolition, use or other development

entitlements permitted by the Project Approvals shall be subject to the rules, regulations,

ordinances and official policies of the City then in effect. The Parties agree that this Agreement

does not modify, alter or change the City's obligations pursuant to CEQA and acknowledge that

future Discretionary Actions may require additional environmental review pursuant to CEQA. In

the event that additional environmental review is required by CEQA, the City agrees to utilize

tiered environmental documents to the fullest extend permitted by law, as determined by the

City, and as provided in California Public Resources Code Sections 21093 and 21 094.

3.5 Effective Development Standards. The City agrees that it is bound to

permit the density, intensity and height, permitted demolitions, uses and other development

entitlements which are permitted by this Agreement and the Project Approvals, insofar as this

Agreement and the Project Approvals so provide or as otherwise set forth in the Applicable

Rules or the Reserved Powers. The City hereby agrees that it will not unreasonably withhold or

unreasonably condition any Discretionary Action or Discretionary Approval which must be

issued by the City in order for the Project to proceed, provided that Developer reasonably and

satisfactorily complies with all preliminary procedures, actions, payments of Processing Fees,


22

and criteria generally required of developers by the City for processing applications for

developments and consistent with this Agreement.

3.6 Consistency with Applicable Rules. Based upon all information made

available to the City up to or concurrent with the execution of this Agreement, City finds and

certifies that no Applicable Rules prohibit or prevent the full completion and occupancy of the

Project in accordance with the density, intensity and height, permitted demolition, uses and

other development entitlements incorporated in the Project Approvals and agreed to herein.

3.7 Moratoria or Interim Control Ordinances. In the event an ordinance,

resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise

after the Effective Date, which relates to the rate, timing, sequencing, or phasing of the

development or construction on all or any part of the Property, City agrees that such ordinance,

resolution or other measure shall not apply to the Property or this Agreement, unless such

changes: (1) are found by the City to be necessary to the health and safety of the residents of

the City, and (2) are generally applicable on a City-wide basis (except in the event of natural

disasters as found by the Mayor or the City Council such as floods, earthquakes and similar

acts of God).

3.8 Interim Uses. City agrees that Developer may use the Property during

the Term of this Agreement for any use which is otherwise permitted by the applicable zoning

regulations and the General Plan in effect at the time of the interim use, including, without

limitation, the uses and operating hours permitted by the Project Approvals. The Project Site

presently contains four existing buildings totaling approximately 136,000 square feet and a

courtyard fronting Sunset Boulevard. The Applicant may elect to improve (i.e., remodel,

renovate, rebuild, rehabilitate, etc.) the existing buildings and/or courtyard prior to commencing

construction of the Project. None of the conditions of approval, project design features,


23

mitigation measures, obligations under this Agreement or other requirements adopted for the

Project shall apply to any improvements to the existing buildings and/or courtyard (including

remodeling, renovation, rebuilding, and rehabilitation).

4. ANNUAL REVIEW, DEFAULT PROVISIONS.

4.1 Annual Review.

4.1.1 Annual Review. During the Term of this Agreement, the City

shall review annually Developer's compliance with this Agreement. Such periodic review shall

be limited in scope to good faith compliance with the provisions of this Agreement as provided in

the Development Agreement Act and Developer shall have the burden of demonstrating such

good faith compliance. The Annual Review shall be in the form of an annual report prepared

and submitted by the Director and General Manager to the applicable Planning Commission,

unless the City determines to use a different method of conducting its annual reviews of

Citywide development agreements.

4.1.2 Pre-Determination Procedure. Developer's submission of

compliance with this Agreement, in a form which the Director of Planning may reasonably

establish, shall be made in writing and transmitted to the Director of Planning not later than sixty

(60) days prior to the yearly anniversary of the Effective Date. The public shall be afforded an

opportunity to submit written comments regarding compliance to the Director of Planning at

least sixty (60) days prior to the yearly anniversary of the Effective Date. All such public

comments and final staff reports shall, upon receipt by the City, be made available as soon as

possible to Developer.

4.1.3 Director's Determination. On or before the yearly

anniversary of the Effective Date of the Agreement, the Director of Planning shall make a

determination regarding whether or not Developer has complied in good faith with the provisions


24

and conditions of this Agreement. This determination shall be made in writing with reasonable

specificity, and a copy of the determination shall be provided to Developer in the manner

prescribed in Section 6. 14. Copies of the determination shall also be available to members of

the public. If the Director does not find evidence of non-compliance with the Agreement by

Developer, no further action by the Director, the Planning Commission or the City Council shall

be required and the annual review process for such year shall end.

4.1.4 Appeal by Developer. In the event the Director of Planning

makes a finding and determination of non-compliance, Developer shall be entitled to appeal that

determination to the Planning Commission. After a public hearing on the appeal, the Planning

Commission shall make written findings and determinations, on the basis of substantial

evidence, whether or not Developer has complied in good faith with the provisions and

conditions of this Agreement. Nothing in this Section or this Agreement shall be construed as

modifying or abrogating Los Angeles City Charter Section 32.3 (City Council review of

Commission and Board actions).

4.1.5 Period to Cure Non-Compliance. If, as a result ofthis Annual

Review procedure, it is found and determined by the Planning Director or the Planning

Commission, on appeal, that Developer has not complied in good faith with the provisions and

conditions of this Agreement, the City, after denial of any appeal or, where no appeal is taken,

after the expiration of the appeal period described in Section 6.3, shall submit to Developer, by

registered or certified mail, return receipt requested, a written notice of default in the manner

prescribed in Section 6. 14, stating with specificity those obligations of Developer which have not

been performed. Upon receipt of the notice of default, Developer shall promptly commence to

cure the identified default(s) at the earliest reasonable time after receipt of the notice of default

and shall complete the cure of such default(s) not later than sixty (60) days after receipt of the

notice of default, or such longer period as is reasonably necessary to remedy such default(s),


25

provided that Developer shall continuously and diligently pursue such remedy at all times until

such default(s) is cured.

4.1.6 Failure to Cure Non-Compliance Procedure. If the Director

of Planning finds and determines that Developer, or its successors, transferees, and/or

assignees, as the case may be, has not cured a default pursuant to this Section, and that the

City intends to terminate or modify this Agreement or those transferred or assigned rights and

obligations, as the case may be, the Director of Planning shall make a report to the Planning

Commission. The Director of Planning shall then set a date for a public hearing before the

Planning Commission in accordance with the notice and hearing requirements of Government

Code Sections 65867 and 65868. If after such public hearing, the Planning Commission finds

and determines, on the basis of substantial evidence, that Developer or its successors,

transferees, and/or assignees, as the case may be, has not cured a default pursuant to this

Section, and that the City shall terminate or modify this Agreement, or those transferred or

assigned rights and obligations, as the case may be, the finding and determination shall be

appeasable to the City Council in accordance with Section 6.3. In the event of a finding and

determination of compliance, there shall be no appeal by any person or entity. Nothing in this

Section or this Agreement shall be construed as modifying or abrogating Los Angeles City

Charter Section 32.3 (City Council review of Commission and Board actions).

4.1.7 Termination or Modification of Agreement. The City may

terminate or modify this Agreement if the City Council finds that Developer is not in compliance

with this Agreement and Developer does not cure such noncompliance as prescribed in

Section 4.1.5, or those transferred or assigned rights and obligations, as the case may be, after

such final determination of the City Council or, where no appeal is taken, after the expiration of

the appeal periods described in Section 6.3. There shall be no modifications of this Agreement


26

unless the City Council acts pursuant to Government Code Sections 65867.5 and 65868,

irrespective of whether an appeal is taken as provided in Section 6.3.

4.1.8 Satisfaction Letter. From time to time, Developer may,

separate from the Annual Review process, submit a written request for confirmation from the

Director that certain obligations of the Agreement have been satisfied. Subject to the time limits

and process requirements of Section 4.1, the Director shall issue a written confirmation stating

that either such obligations have been satisfied or setting forth the reasons why subject

obligations have not been satisfied.

4.1.9 Reimbursement of Costs. Developer shall reimburse the City

for its actual costs reasonably and necessarily incurred, to perform the required annual review.

4.1.10 City's Rights and Remedies Against a Transferee. The

City's rights in this Agreement relating to compliance with this Agreement by a Transferee shall

be limited to only those rights and obligations assumed by a Transferee under this Agreement

and expressly set forth in the applicable Assignment Agreement authorized by this Agreement.

4.1.11 Evidence of Compliance Applicable to a Particular

Development Agreement Property. Notwithstanding anything to the contrary in this Article 4

or any other provision of this Agreement, a Transferee of all or any portion of the Project Site

shall only be responsible for submitting evidence of compliance with this Agreement as it relates

solely to that portion of the Property transferred, assigned or conveyed to such Transferee in an

Assignment Agreement.


27

4.2 Default Provisions.

4.2.1 Default by Developer.

(a) Default. In the event Developer does not perform

its obligations under the Agreement in a timely manner, the City shall

have all rights and remedies provided herein or under applicable law,

which shall include, but not be limited to, compelling the specific

performance of the obligations of Developer under this Agreement, or

modification or termination of this Agreement, provided that the City has

first complied with the following procedure. In no event shall a default by

a Developer or Transferee of any portion of the Property constitute a

default by any non-defaulting Developer or Transferee with respect to

such non-defaulting parties' obligations hereunder nor affect such non-

defaulting parties' rights hereunder, or respective portion of the Property.

(b) Notice of Default. The City through the Director of

Planning shall submit to Developer by registered or certified mail, return

receipt requested, a written notice of default in the manner prescribed in

Section 6.14, identifying with specificity those obligations of Developer

which have not been performed. Upon receipt of the notice of default,

Developer shall promptly commence to cure the identified default(s) at the

earliest reasonable time after receipt of the notice of default and shall

complete the cure of such default(s) not later than sixty (60) days after

receipt of the notice of default, or such longer period as is reasonably

necessary to remedy such default(s), provided that Developer shall


28

continuously and diligently pursue such remedy at all times until such

default(s) is cured.

(c) Failure to Cure Default Procedure. If after the

cure period has elapsed, the Director of Planning finds and determines

that Developer, or its successors, transferees and/or assignees, as the

case may be, remains in default and that the City intends to terminate or

modify this Agreement, or those transferred or assigned rights and

obligations, as the case may be, the Director shall make a report to the

Planning Commission and then set a public hearing before the

Commission in accordance with the notice and hearing requirements of

Government Code Sections 65867 and 65868. If after a public hearing,

the Planning Commission finds and determines, on the basis of

substantial evidence, that Developer, or its successors, transferees

and/or assigns, as the case may be, has not cured the default pursuant to

this Section, and that the City may terminate or modify this Agreement, or

those transferred or assigned rights and obligations, as the case may be,

Developer and its successors, transferees and/or assigns, shall be

entitled to appeal that finding and determination to the City Council in

accordance with Section 6.3. In the event of a finding and determination

that all defaults are cured, there shall be no appeal by any person or

entity. Nothing in this Section or this Agreement shall be construed as

modifying or abrogating Los Angeles City Charter Section 245 (City

Council review of Commission and Board actions).

(d) Termination or Modification of Agreement. The

City may terminate or modify this Agreement, or those transferred or


29

assigned rights and obligations, as the case may be, after such final

determination of the City Council or, where no appeal is taken, after the

expiration of the appeal periods described in Section 6.3. There shall be

no modifications of this Agreement unless the City Council acts pursuant

to Government Code Sections 65867.5 and 65868, irrespective of

whether an appeal is taken as provided in Section 6.3.

4.2.2 Default by the City.

(a) Default and Notice of Default. In the event the

City does not accept, process, render a decision on or issue necessary

development permits, entitlements, or other land use or building

approvals for use as provided in this Agreement upon compliance with

the requirements thereof, or as otherwise agreed to by the parties, or the

City otherwise defaults under the provisions of this Agreement, Developer

shall have all rights and remedies provided herein or by applicable law,

which shall include, but not be limited to, compelling the specific

performance of the City's obligations under this Agreement. No part of

this Agreement shall be deemed to abrogate or limit any immunities or

defenses the City may otherwise have with respect to claims for monetary

damages. Developer shall first submit to the City a written notice of

default stating with specificity those obligations which have not been

performed. Upon receipt of the notice of default, the City shall promptly

commence to cure the identified default{s) at the earliest reasonable time

after receipt of the notice of default and shall complete the cure of such

default(s) not later than one hundred and twenty (120) days after receipt

of the notice of default, or such longer period as is reasonably necessary


30

to remedy such default(s), provided that the City shall continuously and

diligently pursue such remedy at all times until such default(s) is cured. In

the case of a dispute as to whether the City has cured the default, the

Developer shall submit the matter to arbitration pursuant to Section 5.2 of

this Agreement.

4.2.3 Damages and Specific Performance. In the event the City

defaults under the material provisions of this Agreement, Developer shall have all rights and

remedies provided herein or by applicable law, which shall include, but not be limited to,

compelling the specific performance of obligations under this Agreement.

4.2.4 No Monetary Damages. It is acknowledged by the Parties

that the City would not have entered into this Agreement if it were liable in monetary damages

under or with respect to this Agreement or the application thereof. The Parties agree and

recognize that as a practical matter, it may not be possible to determine an amount of monetary

damage which would adequately compensate Developer for its investment of time and financial

resources in planning to arrive at the kind, location, intensity of use and improvements for the

Project, nor to calculate the consideration the City would require to enter into this Agreement to

justify the exposure. Therefore, the Parties agree that each of the Parties may pursue any

remedy at law or equity available for any breach of any provision of this Agreement, except that

the Parties shall not be liable in monetary damages and the Parties covenant not to sue for or

claim any monetary damages for the breach of any provision of this Agreement. The Parties in

this paragraph shall include any successor or assign of the Parties.

5. DISPUTE RESOLUTION.

5.1 Dispute Resolution Proceedings. The parties may agree to dispute

resolution proceedings to fairly and expeditiously resolve disputes or questions of interpretation

CPC-2007 -9911-GPA-ZC-HD-CUB-CUX-CU..SPR 11/30/2009

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under this Agreement. These dispute resolution proceedings may include: (a) procedures

developed by the City for expeditious interpretation of questions arising under development

agreements; (b) non-binding arbitration as provided below; or (c) any other manner of dispute

resolution that is agreed upon by the parties. Nothing in this Agreement shall require the parties

to arbitrate.

5.2 Arbitration. In the event the parties mutually agree to arbitrate a dispute

arising under this Agreement, the arbitration proceeding shall be conducted by an arbitrator who

must be a former (1) judge of the Los Angeles County Superior Court; (2) Appellate Justice of

the Second District Court of Appeals; or (3) Justice of the California Supreme Court. This

arbitrator shall be selected by mutual agreement of the parties.

5.3 Arbitration Procedures. In the event the parties mutually agree to

arbitrate a dispute arising under this agreement, upon appointment of the arbitrator, the matter

shall be set for arbitration at a time not less than thirty (30) nor more than ninety (90) days from

the effective date of the appointment of the arbitrator. The arbitration shall be conducted under

the procedures set forth in California Code of Civil Procedure Section 638, et seq., or under

such other procedures as are agreeable to both parties, except that provisions of the California

Code of Civil Procedure pertaining to discovery and the provisions of the California Evidence

Code shall be applicable to such proceeding.

5.4 Extension of Agreement Term. The Term of this Agreement as set

forth in Section 6.1 shall automatically be extended for the period of time in which the parties

are engaged in dispute resolution to the degree that such extension of the Term is reasonably

required because activities which would have or could have been completed prior to the

expiration of the Term are delayed beyond the scheduled expiration of the Term as the result of

such dispute resolution.


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6. GENERAL PROVISIONS.

6.1 Effective Date. rhis Agreement shall be effective upon the Effective

Date.

6.2 Term. The term of this Agreement ("Term') shall commence on the

Effective Date and shall extend until fifteen (15) years after the Effective Date, unless said Term

is otherwise terminated, modified or extended by circumstances set forth in this Agreement or

by mutual consent of the parties hereto. Following the expiration of this Term, this Agreement

shall terminate and be of no further force and effect; provided, however, that this termination

shall not affect any right or duty arising from entitlements or approvals, including the Project

Approvals on the Property approved concurrently with, or subsequent to, the Effective Date of

this Agreement. The Term of this Agreement shall automatically be extended for the period of

time of any actual delay resulting from any enactments pursuant to the City's Reserved Powers

or moratoria, and for any period during which the parties are engaged in dispute resolution.

6.2.1 Tentative Map Extensions. Pursuant to the Provisions of the

Subdivision Map Act (California Government Code Section 66452.6(a)) any vesting or tentative

maps heretofore or hereafter approved in connection with development of the Project or

Property, shall be extended for the Term of this Agreement, including any extensions thereof.

6.3 Impact Fees. Impact Fees imposed by the City with respect to the

Project shall only be those Impact Fees in force and effect as of the Effective Date, the amount

of which are subject to ongoing annual decreases and increases that shall be calculated at time

of payment. The installation of improvements identified in the Project's mitigation measures and

conditions of approval implemented in connection with the Project shall be accepted by the City

in lieu of otherwise applicable Impact Fees. This Agreement shall not limit any impact fees,

linkage fees, exactions, assessments or fair share charges or other similar fees or charges


33

imposed by other governmental entities and which the City is otherwise required to collect or

assess pursuant to applicable law (e.g., school district impact fees pursuant to California

Government Code § 65995).

6.4 Appeals to the City Council. Unless otherwise specified in this

Agreement, where an appeal by Developer to the City Council from a finding and/or

determination of the Planning Commission is created by this Agreement, such appeal shall be

taken, if at all, within twenty (20) days after the mailing of such finding and/or determination to

Developer, or its successors, transferees, and/or assignees, as the case may be. The City

Council shall act upon the finding and/or determination of the Planning Commission within

eighty (80) days after such mailing, or within such additional period as may be agreed upon by

Developer and the City Council. The failure of the City Council to act shall not be deemed to be

a denial or an approval of the appeal, which shall remain pending until final City Council action.

6.5 Enforced Delay; Extension of Time of Performance. In addition to

specific provisions of this Agreement, whenever a period of time, including a reasonable period

of time

Documents

ORDINANCE NO. 1 81o 2 S - LA City Clerk · TABLE OF CONTENTS Page 1. ... ("City") and PPD GOWER I, LLC, a Delaware ("PPD Gower'), pursuant to California Government Code Section 65864,