SR-8-A (118)~-~
FEB 2 2 1994
CA:atty\muni\strpts\subtpkg
City Council Meeting 2-22-94 Santa Monica, California
STAFF REPORT
TO: Mayor and City Council
FROM: City Attorney
SUBJECT: Ordinance Approving Development Agreement
92-001 to Permit an 11,800 sq. ft., Mixed Use
Commercial Development with Two Levels of
Subterranean Parking Located at 1602 Ocean Avenue
At its meetinq on January 24, 1994, the City Council
introduced for first reading an ordinance approving development
agreement 92-001 with proposed modifications to permit an 11,800
square foot, mixed use commercial development with two levels of
subterranean parking located at 1602 Ocean Avenue. The ordinance
is now presented to the City Council for adoption.
RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be adopted.
PREPARED BY: Joseph Lawrence, Acting City Attorney
Barry A. Rosenbaum, Deputy City Attorney
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~- R
DEVELAPMENT AGREEMENT
TABL$ OF CONTENTB
PAGE
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 4
1.1 Agreement . . . . . . . . . . . . . . . . . . . . . 5
1.2 Development Fees . . . . . . . . . . . . . . . . . 5
1.3 Effective Date . . . . . . . . . . . . . . . . 5
1.4 Governing Regulations . . . . . . . . . . . . . . . 5
1.5 Incidental Food Use . . . . . . . . . . . . . . . . 6
1.6 Land Use Plan . . . . . . . . . . . . . . . . . . . 7
1.7 Owner . . . . . . . . . . . . . . . .
• . 7
1.8 Processing and
Permit Fees . . . . . . . . . . . . 8
1. 9 Proj ect . . . . . . . . . . . . . . . . . . . . 8
1.10 Project Site . . . . . . . . . . . . . . . . 8
1.11 Project Site and Architectural Plans ...... . 8
1.12 Snack Shop . . . . . . . . . . . . . . . . . . . 8
1.13 Tandem Parking . . . . . . . . . . . . . . . . . . 8
1.14 Zoning Administrator . . . . . . . . . . . . . . . 8
1.15 Zoning Ordinance . . . . . . . . . . . . . . . . . 9
2. DESCRIPTION OF PROPERTY . . . . . . . . . . . . . . . . 9
3. DESCRIPTION OF PROJECT . . . . . . . . . . . . . . . 9
3.1 Project Site and Architectural Plans ...... . 9
3.2 Maximum Floor Area Ratio (FAR) . . . . . . . . . . 11
3.3 Building Height . . . . . . . . . . . . . . . . . . il
3.4 Minimum Setbacks . . . . . . . . . . . . . . . . . 12
3.5 Landscaping . . . . . . . . . . . . . . . . . . . . 13
3.6 Parking . . . . . . . . . . . . . . . 14
3.7 Demolition of Fish Market Building ....... . 18
3.8 Lobster Building . . . . . . . . . . . . 18
3.9 Administrative and Technical Construction Codes . . 21
3.10 Signage . . . . . . . . . . . . . . . 21
3.11 Construction Mitigation Plan . . . . . . . . . . . 22
3.12 Recycling Plan . . . . . . . . . . . . . . . . . . 24
3.13 Security Plan . . . . . . . . . . . . . . . . . . . 25
4. USES . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.1 Permitted Uses . . . . . . . . . . . .
. . 25
4.2 Amount of Floor Area Devoted
to Categories of
Uses . . . . . . . . . . . . . . . .
. . 29
4.3 Sale and
Consumption of Alcoholic Beverages ... . 30
4.4 Owner's Support For Pier Activities ....... . 31
5. STANDARD AND SUPPLEMENTAL PROJECT MITIGATZON MEASURES . 32
5.1 Water Demand Mitigation Fee . . . . . . . . . . . . 33
5.2 Sewer Connection Fee . . . . . . . . . . . . . . . 33
5.3 Transportation Impact Fee . . . . . . . . . . . . . 33
5.4 Water Meter Fee . . . . . . . . . . . . . . . 33
5.5 Housing and Parks Impact Mitigation Fee ..... . 33
5.6 Pier Promotional Fund . . . . . . . . . . . . . . . 34
5.7 Street Dedication . . . . . . . . . . . . . . 34
5.8 Pedestrian Connection Bridge . . . . . . . . . . . 35
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5.9 Potential Modification of Colorado Avenue ... .. 36
5.10 Public Access To Designated Areas In Project . .. 37
5.11 Off-Site Improvements . . . . . . . . . . . . 38
5.12 No Additional Mitigations . . . . . . . . . . 38
6. COMMENCEMENT OF CONSTRUCTION . . . . . . . . . . . . . . 38
6.1 Pursuit of Construction . . . . . . . . . . . . . . 38
6.2 Extension For Excusable Delays . . . . . . . . . . 39
6.3 Lack of Financing . . . . . . . . . . . . . . . . . 40
7. MINOR CHANGES TO PROJECT AND PROJECT SITE PLAN ... .. 40
8. ASSIGNMENT; BINDING EFFECT . . . . . . . . . . . . . . . 41
9. RELEASE UPON TRANSFER . . . . . . . . . . . . . . . . . 42
10. EFFECT OF AGREEMENT ON LAND USE REGULATIONS .... .. 43
10.1 Application of Governing Regulations ..... .. 43
10.2 Processing and Permit Fees . . . . . . . . . . . . 44
10.3 Inconsistent Code Provisions . . . . . . . . . . . 44
11. ARCHITECTURAL REVIEW . . . . . . . . . . . . . . . . . . 45
11.1 Purpose . . . . . . . . . . . . . . . . . . . . . . 45
11.2 Authority . . . . . . . . . . . . . . . . . . . . . 45
11.3 Special Concerns . . . . . . . . . . . . . . . . . 46
11.4 Finishing Materials . . . . . . . . . . . . . . . . 47
11.5 Limitations . . . . . . . . . . . . . . . . . . . . 47
12. SPECIAL ASSESSMENTS . . . . . . . . . . . . . . . . . . 47
13. CERTIFICATES OF OCCUPANCY . . . . . . . . . . . . . . . 48
14. PROMPT REVIEW AND ISSUANCE OF NECESSARY PERMITS AND
APPROVALS . . . . . . . . . . . . . . . . . . . . . . . 48
15. PERIODIC REVIEW OF COMPLIANCE WITH AGREEMENT ... ... 48
15.1 City Review . . . . . . . . . . . . . . . . . . 48
15.2 Required Findings . . . . . . . . . . . . . . . . . 48
15.3 Public Hearing . . . . . . . . . . . . . . . . . . 49
16. ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . 51
17. VALIDITY OF AGREEMENT . . . . . . . . . . . . . . . . . 51
18. DEFAULT . . . . . . . . . . . . . . . . . . . . . . 51
18.1 Owner Defaults . . . . . . . . . . . . . . . . . . 51
18.2 City Defaults . . . . . . . . . . . . . . . . . . . 52
19. PROCEDURE UPON DEFAULT . . . . . . . . . . . . . . . . . 53
19.1 Termination by City . . . . . . . . . . . . . . . . 53
19.2 Termination by Owner . . . . . . . . . . . . . . . 53
19.3 Remedies Cumulative . . . . . . . . . . 54
19.4 Cessation of Rights and Obligations ..... ... 54
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20. NOTICE OF TERMINATION . . . . . . . . . . . . . . . . . 55
21. MORTGAGEES . . . . . . . . . . . . . . . . . . . . . . . 55
21.1 Notice to Mortgagee . . . . . . . . . . . . . . . 55
21.2 Cure of Default by Mortgagee . . . . . . . . . . . 56
21.3 Extension of Time to Cure . . . . . . . . . . . . . 57
21.4 Liability of Mortgagee . . . . . . . . . . . . . . 57
21.5 Mortgagee . . . . . . . . . . . . . . . . . . . . . 58
22. DURATION OF AGREEMENT . . . . . . . . . . . . . . . . . 58
23. IMPAIRMENT BY SUBSEQUENT LAWS . . . . . . . . . . . . . 58
24. ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . 59
25. RECORDING OF AGREEMENT . . . . . . . . . . . . . . . . . 59
26. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 60
27. HOLD HARMLESS . . . . . . . . . . . . . . . . . . . . . 61
28. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . 62
29. NO ORAL MODIFICATION . . . . . . . . . . . . . . . . . . 62
30. TABLE OF CONTENTS AND SECTION HEADINGS ..... .... 62
31. NO PARTNERSHIP OR JOINT VENTURE . . . . . . . . . . . . 62
32. ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . 63
33. EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . 63
34. CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . 63
35. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 63
36. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . 63
37. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . 64
38. AGREEMENT TO COOPERATE . . . . . . . . . . . . . . . . . 64
39. NO THIRD PARTY BENEFICIARY . . . . . . . . . . . . . . . 64
40. COOPERATION IN PROVIDING ASSURANCES . . . . . . . . . . 64
41. CONTINGENCY . . . . . . . . . . . . . . . . . . . . . . 64
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42. PURCHASE AND SALE OF TARGET PROPERTY . . . . . . . . . . 65
42.1 Description of Target Property . . . . . . . . . . 65
42.2 Necessary City Findings . . . . . . . . . . . . . . 65
42.3 Purchase Price . . . . . . . . . . . . . . . . . . 66
42.4 Title Insurance . . . . . . . . . . . . . . . . . . 66
43. CITY VACATION OF UNUSED UTILITY EASEMENTS BENEATH
PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 67
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DEVEIAPMENT AGREEMENT
THIS DEVEIAPMENT AGREEMENT ("Agreement"), dated for
reference purposes , 1994, between JOHN B. KILBANE &
ASSOCIATES, INC., a California Corporation, and MYRON L. NATHAN and
IARRAINE NATHAN, (collectively "Owner") on the one hand, 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, ("City") on the other hand, is
made with reference to the following facts:
R E C I T A L 5:
A. Pursuant to California Government Code Sections 65864, et
seq. and Santa Monica Municipal Code Sections 9.48.010, et seq.,
the City is authorized to enter into binding development agreements
with persons having legal or equitable interests in real property
for the development of such property.
B. Owner owns that certain real property (~~Property")
commonly known as 1602 Ocean Avenue and 48 Colorado Avenue, in
Santa Monica, California. The Property consists of approximately
14,553 square feet of land, as more particularly described in
Exhibit "A'~ attached hereto and incorporated herein by this
reference.
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C. Concurrent with the City~s review of this Agreement, City
has initiated, or will shortly initiate, procedures to vacate 800
square feet of an alley ("Alley Property") which dead-ends at the
Property, as more particularly described in Exhibit "B" attached
hereto and incorporated herein by this reference. As provided in
Section 41 below, this Agreement is contingent on the City's
vacation of the Alley Property, which action City shall have a good
faith obligation to initiate and pursue.
D. If and when such vacation is completed, title to the
northeasterly half of the Alley Property, which half consists of
400 square feet of land, will automatically revert to Owner because
Owner holds title to the Property, which is located immediately to
the northeast of the Alley Property. The southwesterly half of the
Alley Property will automatically revert to City because City owns
the small triangular portion of land immediately to the southwest
("Triangular Property") and more particularly described in
Exhibit "C" attached hereto and incorporated by this reference
herein. The Triangular Property consists of approximately 347
square feet of land. The City's interest in half of the Alley
Property, together with the Triangular Property, shall be sold to
Owner and Owner shall purchase the same as described in Section 42
of this Agreement. The Alley Property and the Triangular Property
shall collectively be referred to in this Agreement as "the
Additional Property" and consists of approximately 1,147 square
feet.
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E. On August 13, 1992, Owner filed with the City an
Application for Development Agreement ("Development Agreement
Application") pursuant to Santa Monica Municipal Code Sections
9.48.010, et seq. for the development of a one and two-story mixed-
use commercial project ("Project") having an approximate floor area
ratio of 0.75, and consisting generally of four buildings to be
used for restaurants, general retail, and general and specialty
office uses, over a subterranean parking garage. The Development
Agreement Application, designated as Application No. DA 92-001, was
deemed complete by operation of law on September 14, 1992.
F. The City Council has determined that a development
agreement is appropriate for the proposed development of the
Property and Additional Property ("Project Site"). A development
agreement is reasonably necessary to facilitate preservation of the
existing Lobster Restaurant building ("the Lobster"J, which the
City Council believes is of substantial historical value and
interest. The Lobster was constructed prior to 1930 and is
uniquely located immediately adjacent to the Santa Monica Pier sign
and in close proximity to the Santa Monica Pier. Both the Santa
Monica Pier sign and the Santa Monica Pier have been designated as
landmarks by the City in accordance with Santa Monica Municipal
Code Sections 9.36.010, et seq. A development agreement is also
reasonably necessary to facilitate certain modifications of the
development standards otherwise applicable to the Project Site to
insure that the Project Site is developed in a manner which is
compatible with its surroundings including the Santa Monica Pier
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sign, the Santa Monica Pier Bridge, and the Santa Monica Pier. The
Development Agreement further provides City and the general public
with certain public improvements at Owner's cost and expense, to
Colorado Avenue and the Santa Monica Pier Bridge as more
specifically described below.
G. Owner has paid all necessary costs and fees associated
with the City's processing of the Development Agreement Application
and this Agreement.
H. The City has complied with all procedures required by
Government Code Sections 65864, et seq. and Santa Monica Municipal
Code Sections 9.48.010, et seq., regarding the processing of the
Development Agreement Application and this Agreement.
I. By entering into this Agreement the City acknowledges
that it shall receive substantial benefits conferred as a result of
development of the Project Site in accordance with the terms,
conditions and obligations of this Agreement.
NOW THEREFORE, in consideration for the covenants and
conditions hereinafter set forth, the parties hereto do hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the
following terms and phrases in this Section 1 shall be interpreted
as hereinafter defined, unless the context clearly indicates a
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Revised: 2/17/94-4LDAB17.848
contrary intent of the parties. Except as defined in this
Section 1, or as otherwise defined in this Agreement, all terms
used herein shall be construed in accordance with the definition of
the term as set forth in the Zoning Ordinance.
1.1 Aqreement: This Development Agreement entered into
between the City and Owner as of the Effective Date.
1.2 Development Fees: Any fee required by the City
which is authorized by City ordinances, policies and standards in
effect at the time the City approves and enters into this Agreement
and which is intended to mitigate any impact the Project may have
upon any public facility. This includes the Water Meter Fee (if
applicable), the Water Demand Mitigation Fee, the Sewer Connection
Fee, and the Transportation Impact Fee.
1.3 Effective Date: Thirty (30) days after the date
this Development Agreement is adopted by ordinance on second
reading by the City Council.
1.4 Governinq Regulations: Unless otherwise specifically
stated in this Agreement, the City's current General Plan and any
and all other duly adopted codes, ordinances, rules, regulations
and official policies of the City governing or affecting
development, density, height, permitted uses, intensity of uses and
improvements which are in force and effect in the City of Santa
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Revised: 2/17/94-4LDA817.848
Monica as of the Effective Date of this Agreement, shall govern the
development and use of the Project Site.
1.5 Incidental Food Use: For purposes of this
Agreement, the tenn "Incidental Food Use" shall be a use which
satisfies all of the following criteria:
1.5(a) An Incidental Food Use shall mean any
building, room, space or portion thereof in the Project where food
is sold at retail and where less than 250 square feet (including
interior and exterior) of floor area is utilized for on-site
consumption of any food or beverage, including seating, counter
space or other eating arrangement.
1.5(b) The primary use of a premises used as an
incidental Food Use shall not be the on-site consumption of ineals.
A restaurant, or Snack Shop as defined in Section 4.1(c), shall not
be deemed to be an Incidental Food Use.
1.5(c) There must a primary use of the premises
to which the on-site food service and consumption are incidental.
For example, a bakery, candy store, ice cream or yoghurt shop, or
deli may have on-site consumption which is incidental to primary
retail sales.
1.5(d) The calculation of seating area for any
Incidental Food Use shall include not just the floor area occupied
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Revised: 2/17/94-4LDAB17.848
by seats and tables, but a reasonable circulation area around the
seats and tables, yielding a minimum presumed seating area of 10
square feet per seat.
1.5(e) The maximum permitted seating area shall
be physically defined with fences, counters, railing, or other
similar physical barriers. In the absence of such defining
physical elements, all of the customer area in the premises shall
be included when calculating the maximum 250 square feet seating
area.
1.5(f) To the extent any outdoor seating is
contemplated for the Incidental Food Use, one parking space shall
be required for each 300 square feet of outdoor seating area.
Fractions of required parking spaces shall be rounded up to the
nearest whole number if the fraction equals or exceeds one-half
(1/2) space.
1.6 Land Use Plan: The Land IIse Plan, to the extent it
has been approved by the California Coastal Commission and adopted
by the City in accordance with Public Resources Code Section 30512.
1.7 Owner: John B. Kilbane & Associates, Inc., a
California corporation, and Myron L. Nathan and Lorraine Nathan,
and any and all successors and assigns thereto.
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Revised: 2/77/94-4LDAB17.848
1.8 Processina and Permit Fees: Any fee required by the
City to reimburse the City for the cost of processing any
applications relating to the Project. Processing and Permit Fees
do not include Development Fees as defined above at Section 1.2.
1.9 Pro~ect: The proposed development of the Property
and Additional Property as set forth in the Project Site and
Architectural Plans attached hereto as Exhibit "D" and as more
particularly described in Section 3 below.
1.10 Project Site: The Project Site consists of the
Property and Additional Property as described in Exhibits A, B and
C attached hereto.
1.11 Pro~ect Site and Architectural Plans: The Project
Site and Architectural Plans, also referred to herein as the
Project Site Plan, are attached hereto as Exhibit "D".
1.12 Snack Shop: As defined below in Section 4.1(c).
1.13 Tandem Parkina: A group of two or more parking
spaces arranged one behind the other where one space blocks access
to the other space.
1.14 Zonina Administrator: The Director of Land Use and
Transportation Management of the City of Santa Monica.
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Revised: 2/17/94-4LDAB17.848
1.15 Zoninq Ordinance: Chapter 9.04, commencing at
Section 9.04.02.020, of the Santa Monica Municipal Code as of the
Effective Date of this Agreement.
2. DESCRIPTION OF PROPERTY. The Property and Additional
Property are legally described in Exhibits A, B and C to this
Agreement. The total land area of the Property and Additional
Property is approximately 15,700 square feet.
3. DESCRIPTION OF PROJECT.
3.1 Project Site and Architectural Plans. The Project
shall be developed in accordance with the Project Site and
Architectural Plans ("Project Site Plan") attached hereto as
Exhibit "D", except for any minor changes approved by the Zoning
Administrator in accordance with Section 7 below. In the event of
a conflict between (i) the Project as depicted on the Project Site
Plan attached hereto as Exhibit D and (ii) the Project as
explicitly authorized by the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall
control.
The Project shall include four (4) buildings, with second
floor linkages between certain buildings as set forth in E~thibit D.
These four buildings are:
3.1(a) Buildina A: The building located at the
northeast portion of the Project Site as set forth in Exhibit D,
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Revised: 2/17/94-4LDAB17.848
commonly known as the Lobster. This building consists of
approximately 877 square feet of floor area and will remain one-
story (17 feet above finished grade) in height. The Lobster shall
be preserved in accordance with Paragraph 3.8 below.
3.1(b) Buildina B: The building located at the
northwest portion of the Project Site as set forth in Exhibit D,
commonly known as the Restaurant Building. This building will
contain no more than 5,350 square feet of floor area and will be
two-stories, not exceeding 30 feet in height measured from Average
Natural Grade (as defined in Section 3.3(a) belowj except for the
spire. This building will include the floor area located on the
second floor below the spire, which links Buildings B and C.
3.1(c) Buildina C: The building located at the
southwest portion of the Project Site as set forth in Exhibit D.
This building will contain no more than 3,900 square feet of floor
area and will be two-stories, not exceeding 30 feet in height
measured from Average Natural Grade. This building will include
the floor area located on the second floor above the driveway,
linking Buildings C and D.
3.1(d) Buildina D: The building located at the
southeast portion of the Project Site as set forth in Exhibit D.
This building will contain no more than 1,800 square feet of floor
area and will be two-stories, not exceeding 30 feet in height
measured from Average Natural Grade.
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Rev~sed• 2/17/94-4LDAB77.848
3.2 Maximum Floor Area Ratio (FAR). The total floor
area of the Project shall not exceed 11,800 square feet, resulting
in a maximum FAR of 0.75, based on a Project Site of 15,700 square
feet,
3.3 Buildinq Heiqht.
3.3(a) Averave Natural Grade. The Average Natural
Grade of the Project Site is 51.14 feet above sea level ("AVerage
Natural Grade"). Average Natural Grade for the Project Site has
been calculated by averaging the elevation of the Property and
Additional Property at the four points shown on the Site Plan
(attached in Exhibit D), which were selected as an interpretation
of how the definition of "average natural grade" as set forth in
Zoning Ordinance Section 9.04.02.030 applies to an irregularly
shaped property. City agrees that the selection of the four points
shown on the Site Plan is reasonable, and City hereby accepts 51.14
feet above sea level as Average Natural Grade for the Project Site.
3.3(b) Maximum Heiqht. The maximum allowable
building height of the Project shall be 30 feet above the Average
Natural Grade, except for the spire extending above the second
floor linkage between Buildings B and C, which spire may extend to
a maximum height of 47 feet above the Average Natural Grade subject
to Owner's obtaining an amendment to the Land Use Plan from the
California Coastal Commission concerning the permitted building
height on the Property as described in Section 3.3(d) below. If
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Owner's application to the California Coastal Commission amending
the Land Use Plan is denied with respect to height, then the spire
on the Project shall be eliminated.
3.3(c) Stories. The Project shall not contain more
than two (2) stories above the parking garage, as shown on the
plans in Exhibit D. Pursuant to Zoning Ordinance Section
9.04.10.08.210, the finished floor of the first level of the
building or structure above the parking garage may be located up to
three feet above the Average Natural Grade.
3.3(d) Amendment of Land Use Plan. City shall
authorize Owner to file and pursue with the California Coastal
Commission an amendment to City's Land Use Plan to the extent
necessary to authorize the Project as contemplated in Sections 3
and 4 of this Agreement. Within thirty (30) days after the
Effective Date of this Aqreement, City shall adopt a formal
resolution authorizing Owner to file such an application and
expressing support for the required amendments. However, Owner may
not file that application until Owner has first obtained City
approval or conditional approval of the architectural design of the
Project pursuant to Section 11 of this Agreement. City shall fully
cooperate and reasonably assist at all times with Owner's efforts
to obtain Coastal Commission approval for such an amendment.
3.4 Minimum Setbacks. The Project shall comply with the
applicable front yard, side yard, and rear yard setbacks as
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required by the Zoning Ordinance, except that, as shown in
Exhibit D, the Project shall be permitted to intrude into the
required setbacks as follows:
3.4(a) Buildina A. The finished location of
Building A(i.e., the Lobster) will be at the same location on the
Property as it presently stands. At that location, certain corners
of the building are and will be approximately four (4) feet from
the Property lines along Ocean and Colorado Avenues as shown on the
Project Site Plan, notwithstanding Section 9.04.08.12.060(d) and
(f) of the Zoning Ordinance, which otherwise requires a minimum
35-foot front yard setback along the west side of Ocean Avenue at
this location and a minimum side yard setback of approximately 9.6
feet.
3.4(b) Buildinq D. As shown on the Project Site
Plan, portions of Building D will be located up to a point no less
than five (5) feet from the Property line along Ocean Avenue,
notwithstanding Section 9.04.08.12.060(d) of the Zoning Ordinance,
which otherwise requires a minimum 35-foot front yard setback along
the west side of Ocean Avenue at this location.
3.5 Landscaping. An unexcavated side yard setback equal
to at least four (4) feet in width shall be provided along the
entire length of the side property line of the Project Site on the
opposite side from Colorado Avenue. The Project shall be fully
landscaped in a manner subject to approval of the City~s
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Architectural Review Board ("ARB"), provided, however, that the
Project shall not be required to provide an unexcavated front yard,
nor shall the Project be required to provide an unexcavated side
yard along Colorado Avenue, notwithstanding Zoning ordinance
Section 9.04.10.02.170 or the interim standards set forth in City
Ordinance No. 1675(CCS) or any later City ordinance permanently
implementing those standards.
3.6 Parkinq. Parking for the Project shall meet the
following conditions:
3.6(a) Quantity. Prior to issuance of a building
permit for the Project, the Zoning Administrator shall determine
the required minimum number of total parking spaces in the Project
in accordance with the following formula:
3.6(a)(i) One parking space for each 300
square feet of office space floor area.
3.6(a)(ii) One parking space for each 300
square feet of retail space floor area.
3.6(a)(iii) One parking space for each 75
square feet of floor area for food service and seating in the
restaurants, including both exterior and interior seating areas;
one parking space for each 50 square feet of floor area in any
portion of the restaurants used as a bar for service of alcohol;
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Revised: 2/17/94-4LDAB77.848
and one parking space for each 300 square feet of the remaining
floor area in the restaurants used to support the service and
seating area.
3.6(a)(iv) Bicycle storage racks for at
least four (4) bicycles shall be installed where indicated on the
Project Site Plans.
3.6(b) Comoact. Notwithstanding Zoning Ordinance
Section 9.04.10.08.040, up to fifty-one percent (51$) (with
fractions of less than one-half percent rounded down to the nearest
whole number) of the minimum number of parking spaces required by
Paragraph 3.6(a) may have reduced minimum dimensions of 15 feet in
length by 7~ feet in width. All other required parking spaces,
except for the handicapped parking spaces required by Section
3.6(f) of this Agreement, shall have minimum dimensions of 18 feet
in length by 8; feet in width.
3.6(cj Tandem. Notwithstanding Zoning Ordinance
Section 9.04.10.08.050(c), tandem parking shall be permitted as
described in this Paragraph 3.6(c). No more than twenty percent
(20g) (with fractions of a space less than 0.5 rounded down to the
nearest whole number) of the required parking spaces for the
Project will be tandem parking. In determining this percentage,
the Zoning Administrator will compare (i) the number of required
spaces blocked by another space, with (ii) the total number of
required spaces for the Project. At least one valet parking
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attendant shall be on duty at the Project during the hours the
premises are open for business.
3.6(d) Parkinv Onerations. Prior to issuance of
the Certificate of Occupancy for the Project, Owner shall submit a
written parking plan to the City Parking and Traffic Engineer for
review and approval, which approval shall not be unreasonably
withheld. Among its other contents, that parking plan shall
provide the following: (1) all valet parking services (including
customer embarking and disembarking and valet driven parking
routes) shall occur only on the Project Site; and (2) to the extent
that surrounding publicly owned and operated parking lots located
on the Santa Monica Pier are open after the normal business hours
of the permitted commercial offices in the Project, which may
include weekends, major holidays and evenings, then: (i) parking
spaces in the Project's parking garage shall be available for
public use, (ii) the quantity of spaces available for public
parking shall be no less than the number of parking spaces required
by the office space in the Project according to the formula
contained in Section 3.6(a)(i), (iii) during such hours the
availability of such public parking shall be conspicuously
advertised in appropriate signage on the Property, and (iv) parking
fees may be charged to the public for such parking so long as the
rates charged do not exceed the rates in effect at the surrounding
State beach parking lots.
Prior to issuance of the Certificate of Occupancy for the
Project, Owner shall also install signage and physical implements
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(such as a tire spike directional control unit) prohibiting
vehicular traffic, including delivery vehicles, from exiting via
the Project's delivery driveway onto the Highway Access Road. Said
traffic signs and physical impediments shall be subject to approval
by the City's Parking and Traffic Engineer prior to installation by
Owner, which approval shall not be unreasonably withheld.
3.6(e) Loadinq Zone. City and Owner agree that the
loading space for the Project shall be located where it is depicted
on the Project Site Plan attached as Exhibit D which complies with
Part 9.04.10.10 of the Zoning Ordinance.
3.6(f) Handicapped. One out of every forty parking
spaces required under Section 3.6(a) shall be dimensioned and
marked for handicapped parking.
3.6(g) Parkinq Siqnaqe. Prior to issuance of the
Certificate of Occupancy for the Project, Owner shall install
signage on the Property, directing Project visitors and employees
to and from the parking garage in the Project. Those Project
traffic signs shall be subject to approval by the City's Parking
and Traffic Engineer prior to their installation by Owner, which
approval shall not be unreasonably withheld.
3.6(h) CalTrans. Prior to issuance of a building
permit for the Project, Owner shall seek and obtain all necessary
permits or approvals from the California Department of
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Transportation ("CalTrans") for any new curb cuts which the Owner
proposes to make along the Highway Access Road in order to align
the driveway for deliveries into the Project.
3.7 Demolition of Fish Market Buildina. The structure
currently on the Property commonly referred to as the Fish Market
has not been the subject of any historical or landmark
applications, is not listed among the sites identified in the Santa
Monica Historical Resources Inventory Final Report (1985-86), and
may be demolished without further City permits or approvals, except
for a demolition permit to be issued by the City without review by
the City's Landmarks Commission, notwithstanding the City's
Landmark Ordinance (Santa Monica Municipal Code Sections 9.36.010,
et seq).
Until such time as demolition of the Fish Market is
undertaken, Owner shall keep the structure secure by boarding up
all openings, maintaining fencing around the perimeter of the
Property, and keeping the Property free of accumulated debris and
brush that might otherwise inhibit easy surveillance of the
Property to the satisfaction of the City Building and Safety
Officer and the City Fire Department.
3.8 Lobster Buildina. Owner shall preserve and restore
the existing front facade facing Ocean Avenue and the majority of
the side facades of the Lobster Building. Those portions of the
facades to be preserved are more particularly described in
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Exhibit D. This building shall constitute Building A as described
in Section 3.1(a).
Prior to construction of the Project, Owner will need to
move the Lobster Building from the Property so that, among other
things, the parking garage can be excavated beneath its location.
Until that time, Owner shall keep the Lobster Building secure by
boarding up all openings. Before moving those portions of the
Lobster Building to be preserved, Owner shall hire a certified
architectural historian with experience in building preservation
methods to prepare a Relocation Preservation Plan describing the
process for their temporary removal, storage and return. The plan
shall fully document the existing Lobster Building prior to
relocation with exterior and interior photography and measured
drawings completed to Historic American Building Survey (HABS)
specifications. The restoration of the Lobster Building shall use
the Secretary of Interior's Standards for Rehabilitation of
Historic Buildings as a guide. Owner shall submit a written copy
of that plan to the Director of Land Use and Transportation
Management for prior review and approval before its implementation.
Such approval shall not be unreasonably withheld. When the facades
are returned to the Property, the Lobster Building shall be
reconstructed as shown on Exhibit D in approximately its same
Zocation.
No temporary or permanent Certificate of Occupancy shall
be issued for any portion of the Project until the facades of the
Lobster Building have been returned to the Property and the
reconstruction of the exterior of the Lobster Building has been
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completed in accordance with the requirements of this Section 3.8.
Before a permanent Certificate of Occupancy is issued for the
Project, Owner shall provide the Director of Land Use and
Transportation Management with evidence that Owner has made best
efforts to obtain an operator to occupy the Lobster Building. Such
best efforts shall include, without limitation, listing the
premises for rent with a licensed real estate broker or agent,
showing the Lobster Building to potential commercial tenants, and
posting appropriate signage indicating that the space in the
Lobster Building is available for rent or lease. Owner is not
required to perform any tenant improvements to the interior of the
Lobster Building prior to the issuance of temporary or permanent
Certificates of Occupancy for all or any portion of the Project.
In the event that, notwithstanding Owner's best efforts,
the facades of the Lobster Building are partially or completely
damaged or destroyed during their removal, storage or reassembly,
then Owner shall be obligated to reconstruct the damaged or
destroyed facades of the Lobster Building in a manner replicating
the original facades.
The Owner shall be entitled to replace the rear facade of
the Lobster Building with a new facade which is architecturally
compatible with the front and side facades. The Owner shall be
entitled to replace the roof of the Lobster Building. The Owner
shall be entitled to remodel the interior of the Lobster Building
so long as such interior alterations do not materially affect the
external appearance of the structure. The Owner shall be entitled
to replace the exterior awnings which presently exist on the
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Lobster Building with new awnings of similar size and shape and of
one or more colors in shades of red or blue subject to approval by
the Architectural Review Board. Any new awnings which replace the
existing metal awnings may consist of a fabric material, in the
Owner's discretion but subject to approval by the Architectural
Review Board.
From time to time Owner may wish to make changes to the
images painted on the exterior facades of the Lobster Building to
identify the then-current user of Building A; in such event, Owner
shall reflect the character and imagery of the existing graphics on
the exterior facades, subject to approval by the Architectural
Review Board, with rights of appeal to the Planning Commission and
subject to the provisions of Section 3.10 of this Agreement,
including the limits on total sign area for the Project.
3.9 Administrative and Technical Construction Codes.
Except as otherwise specifically provided herein, the Project shall
be designed and constructed in compliance with the Administrative
and Technical Construction Codes of the City (Chapter 8.04 of the
Santa Monica Municipal Code) in effect in the City at the time of
any application by Developer for issuance by the City of a building
permit for construction of any building, structure or other
improvement in the Project.
3.10 Signage. Signage at the Project shall comply with
Chapter 9.52 of the Zoning Ordinance, except that the existing
imagery and graphics on the exterior facades of the Lobster
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Building may be maintained and repainted, notwithstanding Zoning
Ordinance Section 9.52.210, after those facades are removed, stored
offsite and returned to the Project Site. Furthermore, the
limitations on total sign area for the Project as set forth in
Zoning Ordinance Section 9.52.210 shall not include the Lobster
imagery and graphics so long as the same are not modified to depict
a new use of the Property. If the graphics of the Lobster Building
are modified to depict a new use of the Property, then to the
extent they are modified they will be counted towards the
limitations on total sign area for the Project.
3.11 Construction Mitiqation Plan. A construction period
mitigation plan shall be prepared by Owner for approval by City's
Department of General Services prior to issuance of a building
permit for the Project. The approved construction mitigation plan
shall be posted on the Property for the duration of the period of
Project construction, and copies of the plan shall be made
available by Owner to the members of the general public, on request
and without charge. This construction mitigation plan shall:
(a) specify the names, addresses, telephone numbers and business
license numbers of all contractors and subcontractors, as well as
the Owner of the Property and architect for the Project;
(b) describe how demolition of the Fish Market Building and the
unpreserved portion of the Lobster Building is to be accomplished;
(c) indicate where any cranes are to be located for
erection/construction of the Project; (d) describe how much of the
public streets, alleyways, or sidewalks is proposed to be used in
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conjunction with construction; (e) set forth the extent and nature
of any pile-drive operations; (f) describe the length and number of
any tie-backs which must extend under the property of other
persons; (g) specify the nature and extent of any dewatering and
its effect on any adjacent buildings; (h) describe anticipated
construction-related truck routes, number of truck trips, hours of
hauling and their parking location; (i) specify the nature and
extent of any helicopter hauling; (j) state whether any
construction activity before 8:00 a.m. or after 6:00 p.m. on Monday
through Friday, or before 9:00 a.m. or after 5:00 p.m. on
Saturdays, or at any time on Sunday, is proposed; (k) describe any
proposed construction noise mitigation measures; (1) describe
construction period security measures, including any fencing,
lighting and any security personnel; (m) provide a Project Site
drainage plan to apply during construction; (n) provide a
construction-period parking plan which shall minimize use of public
streets for parking; (o) list a designated on-site construction
manager; (p) describe how all public street trees located near
Project Site shall be protected from damage, death or removal
during construction; (q) describe pest control eradication program
for implementation during construction, including protection
against pest control impacts on neighboring properties;
(r) describe limits on the scope and duration of the use of public
streets, alleyways and sidewalks for construction activities to
ensure that they are kept passable for the general public during
construction; (s) describe a program for covering the trailers of
all vehicles when they are hauling soil or other construction
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debris from the Project Site to minimize dust emissions;
(t) periodically water the Project Site during excavation to
control fugitive dust emissions; and (u) contain an agreement to
post a sign on the Project Site in a manner consistent with the
City's standard public hearing sign requirements and which shall
describe the permitted hours of construction and identify the
address and telephone number of the Owner for the purpose of
responding to questions or complaints during the construction
period. Any signage installed to advertise the Project during
construction shall be subject to prior review and approval by the
City's Architectural Review Board. During all periods of
construction after demolition of the Fish Market Building, security
fencing of not less than six (6) feet in height shall be erected by
Owner around the perimeter of the Project Site. Owner shall keep
the Project Site free of accumulated trash and brush. No street
trees shall be removed by Owner as a result of the Project without
the approval of the Director of the Department of Cultural and
Recreational Services, in their sole and absolute discretion.
Approval of a construction mitigation plan for the Project shall
not relieve the Owner of the duty to obtain any desired
construction-related permits or approvals, such as an after-hours
construction permit or an encroachment permit if such work is
contemplated.
3.12 Recyclinq Plan. To mitigate solid waste impacts,
prior to issuance of the Certificate of Occupancy for the Project,
Owner shall submit a recycling plan to the Director of the
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Department of General Services for approval, which approval shall
not be unreasonably withheld. This recycling plan shall: (1) list
all materials such as white paper, computer paper, metal cans, and
glass to be recycled at the Project; (2) identify the location of
recycling bins in the Project; (3) designate a recycling
coordinator for the Project; (4) describe the nature and extent of
internal and external collection of recycled materials;
(5) establish a recycling collection schedule; and (6) propose a
plan for informing Project tenants/occupants of the Project's
recycling program.
3.13 Security Plan. Prior to issuance of a temporary or
permanent Certificate of Occupancy for any portion of the Project,
a security plan shall be submitted to the Chief of Police and the
Director of Land Use and Transportation Management for review and
approval, which approval shall not be unreasonably withheld. The
plan shall address both physical and operational security issues of
the Project.
4. USES.
4.1 Permitted Uses. By execution of this Agreement, the
City specifically approves, as permitted uses and subject to the
maximum floor area limits for each use established in Section 4.2,
the following uses of the Project and Project Site:
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4.1(a) Subject to California Coastal Commission
approval of a Land Use Plan Amendment authorizing such uses,
general and specialty offices located in all or any portion of
Building C, including the ground floor, notwithstanding the fact
that Building C might be deemed to have street frontage for
purposes of applying Zoning Ordinance Section 9.04.08.12.040(d), or
in all or any portion of Building D above the ground floor, or in
both locations. No medical office use shall be allowed in the
Project.
4.1(b) Restaurant uses, including the right to sell
and dispense alcoholic beverages for on-site consumption in
Buildings A and B in accordance with the terms and conditions set
forth in Section 4.3 herein. There shall be no more than three (3)
separate restaurant establishments, including any snack shop in the
Lobster Building, operating within the Project at any one time;
provided, however, that the sewer lines for all restaurants on the
Project shall be connected to a grease intercepter housing a
minimum static holding capacity of 1,000 gallons for all the
restaurants cumulatively, in order to pretreat sewered grease.
4.1(c) The Lobster Building shall be used as a
"snack shop.~' That term shall be defined for purposes of this
Agreement to mean the following: A restaurant intended for casual
dining primarily on-site, with no more than fifty (50) indoor and
outdoor seats. The service and sale of beer and wine shall be
allowed in this snack shop in accordance with Section 4.3, but not
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Revised: 2/17/94-4LDAB17.848
the service or sale of any distilled spirits. This snack shop may
have take-out service, which shall not exceed fifty percent (50~)
of its customer sales. There shall be no drive-thru operations,
and no delivery service shall be permitted from the snack shop.
Any such snack shop located in the Lobster Building shall be deemed
to be a restaurant for purposes of calculating the square footage
of restaurant uses in the Project under Section 4.2 and for
purposes of calculating parking requirements under Section 3.6.
Notwithstanding the provisions of this Subsection 4.1(c), the
Lobster Building may alternatively be used as a bona fide
restaurant not deemed to be a snack shop, or for any other visitor-
serving retail use approved by the Zoning Administrator and not
prohibited by Zoning Ordinance Section 9.04.08.12.020 or the Land
Use Plan.
4.1(d) General retail and specialized retail uses,
including any "Incidental Food Use" as defined in Section 1.5. An
Incidental Food Use in the Project shall not be authorized by this
Agreement to sell or dispense alcoholic beverages.
4.1(e) Any other uses permitted as a matter of
right by Zoning Ordinance Section 9.04.08.12.020 and the Land Use
Plan.
4.1(f) Accessory uses which are determined by the
Zoning Administrator to be necessary and customarily associated
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with, and are appropriate, incidental, and subordinate to, the uses
permitted above.
Except as otherwise provided in this Agreement, only
Administrative Approvals from the Zoning Administrator are required
to use the Property or Project for the uses permitted by this
Section 4.1, and none of the following additional permits or
approvals are required for those uses: a Use Permit, Conditional
Use Permit, Performance Standards Permit, 2one Change, Variance
Application, or any other permit or approval, whether ministerial
or discretionary.
The Zoning Administrator shall issue an Administrative
Approval for any use of the Property or Project, if such use is
authorized by this Agreement, including the requirement that
parking for the Project must continue to satisfy the parking
requirement of Section 3.6(a). Nothing in this Section 4.1 is
intended, nor should be construed, to obviate any requirements
under codes, ordinances, rules, regulations or official policies of
the City to obtain licenses and permits in conjunction with, and as
a condition of, the operation of businesses within the City.
If the California Coastal Commission does not approve the
City's application to amend the Land Use Plan as necessary to
authorize commercial office use in the Project in accordance with
Section 3.3(d) of this Agreement, then City and Owner shall meet
and confer regarding whether to amend this Agreement. If City and
Owner are unable to agree on amending this Agreement under those
circumstances, or if the City Council denies such an amendment,
then Owner may elect whether to proceed with this Project by using
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Revised: 2/17/94-4LDA817.848
Buildings C and D only for the uses described in Sections 4.1(d),
4.1(e) and 4.1(f). As provided in Section 6, if Owner does not
obtain a building permit for the Project within two (2) years after
the Effective Date of this Agreement, then this Agreement shall
automatically terminate.
4.2 Amount of Floor Area Devoted to Cateaories of Uses.
The floor area for the following uses shall satisfy the limits set
forth below:
4.2(a) Restaurants -- No more than 6,200 square
feet of floor area, including all outdoor patios, decks, balconies,
terraces or other outdoor areas, to the extent they are used for
restaurant activity, including outdoor dining; provided that the
total floor area in the Project must not exceed 11,800 square feet
in accordance with Section 3.2 of this Agreement, and provided
further that at least 2,000 square feet of floor area in the
Project must be for retail use.
4.2(b) Office uses -- No more than 4,500 square
feet of floor area, subject to California Coastal Commission
approval of an amendment to the Land Use Plan authorizing such
uses; provided that the total f2oor area in the Project must not
exceed 11,800 square feet in accordance with Section 3.2 of this
Agreement, and provided further that at least 2,000 square feet of
floor area in the Project must be for retail use.
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4.2(c) Retail -- At least 2,000 square feet of
floor area. There shall be no more than 25 seats for Incidental
Food Use in the entire Project.
4.2(d) This Section 4.2 does not authorize the
Project to exceed 11,800 square feet of total floor area, and the
Project must contain at least 2,000 square feet of retail uses;
therefore, the Project cannot simultaneously contain the maximum
floor area of both the office and restaurant uses.
4.3 Sale and Consumntion of Alcoholic BeveraQes.
4.3(a) The City hereby agrees that on-site sale and
consumption of alcoholic beverages, including distilled spirits,
shall be a conditionally permitted use in all restaurants located
in Building B in the Project. Additionally, the service of only
beer and wine (and no distilled spirits) shall be a conditionally
permitted use in any restaurants located in the Lobster Building
(Building A), including any snack shop meeting the definition
contained in Section 4.1(c) of this Agreement. The City hereby
agrees to expeditiously review applications for any conditional use
permit(s) authorizing such uses in the Project upon the filing by
the Owner, or the operator or proposed operator of a restaurant in
the Project, of an application for such permit(s). Such review by
the City shall be based upon the rules and procedures for
processing conditional use permit applications for alcohol outlets
then uniformly in effect in the City. The parties agree that the
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Revised: 2/17/94-4LD11877 848
sale and consumption of alcoholic beverages, including distilled
spirits, for on-site consumption is an appropriate use for
restaurants in Building B and that the sale and consumption of beer
and wine in a restaurant or snack shop in the Lobster Building is
an appropriate use. The sole purpose in requiring a conditional
use permit for the specified alcohol outlets in this Project is to
determine reasonable conditions as to operations which should be
followed in connection with such uses. However, if after the
development of the Project, a conditional use permit for on-site
sale and consumption of alcohol is lawfully revoked for violations
of any condition(s) in the conditional use permit(s) or standards
or regulations of the State Alcoholic Beverage Control Board, then
Owner and the restaurant operator shall thereafter be subject to
all applicable rules, standards, and regulations relating to the
renewal of said conditional use permit(s) and the foregoing
statement by City in this Section 4.3(a) that on-site sale and
consumption of alcohol is an appropriate use at the Project shall
not impact the applicable rules, standards and regulations for the
renewal application(s).
4.3(b) Except as expressly provided in Section 4.3(a)
above, any other sale of alcoholic beverages in the Project is
prohibited. The sale of distilled spirits sha1Z not be allowed in
the Lobster Building.
4.4 Owner's Sunnort For Pier Activities. Owner hereby
acknowledges his support for the current and on-going efforts to
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redevelop the Santa Monica Pier. Owner is aware that these efforts
include development of a"Fun Zone" on the Pier. Owner further
understands that a roller coaster ride, as well as other amusement
rides and carnival games, have been approved for this Fun Zone.
Prior to execution of lease agreements with prospective
tenants in the Project, or, in the absence of such a written lease,
before a prospective tenant occupies a premise in the Project,
Owner agrees to notify his prospective tenants in writing of the
current and on-going efforts to redevelop the Santa Monica Pier.
Owner's written notice to prospective tenants about the Santa
Monica Pier shall be in the form of a written disclosure statement.
The disclosure statement shall explain the nature of the current
and planned activities and operations on the Santa Monica Pier.
Prior to Owner's dissemination of the disclosure statement, Owner
shall submit the contents of that document for review and approval
in advance by the City, who shall act in consultation with the Pier
Restoration Corporation when reviewing the contents of the
disclosure.
5. STANDARD AND SUPPLEMENTAL PROJECT MITIGATION MEASURES.
To comply with applicable provisions of the General Plan and the
Santa Monica Municipal Code for mitigation of commercial projects
of this size and type, Owner agrees to provide the project
mitigation measures and Development Fees set forth below in this
Section 5.
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5.1 Water Demand Mitiaation Fee: As reqtlired by City
ordinances and policies in effect at the time Owner obtains a
building permit for the Project.
5.2 Sewer Connection Fee: As required by City
ordinances and policies in effect at the time Owner obtains a
building permit for the Project.
5.3 Transnortation Impact Fee: As required by City
ordinances and resolutions in effect at the time Owner obtains a
building permit for the Project. If this fee is not required to be
paid at that time because a resolution setting the amount of the
fee has not been adopted by the City Council by that time, then
this fee shall be paid by Owner in accordance with any such
resolution adopted prior to issuance of a certificate of occupancy
for the Project.
5.4 Water Meter Fee: As required by City oYdinances and
policies in effect at the time Owner obtains a building permit for
the Project, if applicable.
5.5 Housinq and Parks Impact Mitiaation Fee. City and
Owner agree that the Project is exempt from the Housing and Parks
impact Mitigation Fee set forth in the LUCE and Santa Monica
Ordinance No. 1367 (CCS) because the Project consists of less than
15,000 square feet of commercial office space.
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5.6 Pier Promotional Fund. Commencing upon the issuance
of a Certificate of Occupancy for the Project, Owner shall pay an
annual contribution to a fund for promotional activities on the
Santa Monica Pier if and when such a fund is established by the
Pier Restoration Corporation, or its successor, for all commercial
tenants located on the Santa Monica Pier. Owner's obligation for
this annual contribution shall be calculated at one-half of the
assessment rate applicable to commercial tenants located on the
Santa Monica Pier. In no event shall Owner's obligations under
this Section 5.7 be assessed at a rate above $1.00 per square foot
of leasable space in the Project, which maximum rate shall be
adjusted annually by the percentage increase, if any, from the
effective date of this Agreement, in the Consumer Price Index of
the Bureau of Labor Statistics of the United States Department of
Labor for Urban Wage Earners and Clerical Workers, Los Angeles-
Long-Beach-Anaheim, California (1982/84 base) "All Items." The
initial contribution due under Section 5.7 shall be prorated for
the number of days remaining in the calendar year from the date of
issuance of a Certificate of Occupancy for any leasable space in
the Project and shall only be charged for the leasable space in the
Project for which a Certificate of Occupancy has been issued.
5.7 Street Dedication. Prior to obtaining a building
permit for the Project, Owner shall execute such documents as
ordinarily required by City to obtain an easement for street
purposes ("Street Dedication"). That Street Dedication shall be
granted over the surface of approximately sixteen (16) square feet
34
Revised: 2/17/94-4LDAB17.848
of area located on the Property where it is adjacent to the
intersection of Ocean and Colorado Avenues. The location of the
Street Dedication is more particularly described in Exhibit "E"
attached hereto and incorporated by reference herein.
5.8 Pedestrian Connection Bridve. Owner supports in
concept construction of a pedestrian connection bridge ("Pedestrian
Connection Bridge") over Colorado Avenue linking the sidewalk on
the Santa Monica Pier Bridge to either the first floor of
Building B or some portion of the deck around the second floor of
Building B. Owner, working in consultation with the City's
Director of General Services, shall provide reasonable structural
support in Building B for the Pedestrian Connection Bridge.
In the event the City determines it is in the public
interest to construct the Pedestrian Connection Bridge, then the
City shall prepare plans depicting the proposed location and design
of the Pedestrian Connection Bridge. The City shall submit those
proposed plans to Owner for review and approval. Owner may not
unreasonably withhold approval of those plans.
If the Pedestrian Connection Bridge is pursued by the
City in accordance with this Section 5.8, then the City shall be
entitled to construct the Pedestrian Connection Bridge and connect
it to the first floor of Building B or the deck which encircles the
second floor of Building B, in accordance with plans reasonably
approved by Owner. If built, the Pedestrian Connection Bridge
shall be constructed in a manner which does not unreasonably
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interfere with Owner's construction or authorized use of the
Project.
Prior to construction of the Pedestrian Connection
Bridge, City and Owner shall execute an easement agreement in
recordable form creating an easement incorporating the following
terms and conditions: (a) Owner shall remain the fee owner of the
Property and Project and will be responsible for its maintenance at
Owner's sole cost; (b) the City shall be entitled to construct,
repair, replace and maintain the Pedestrian Connection Bridge and
join it to the Project; (c) the general public shall have the right
to traverse the Pedestrian Connection Bridge and cross the Property
to and from Ocean Avenue on foot at all times.
5.9 Potential Modification of Colorado Avenue. In the
event the City vacates, condemns or otherwise modifies the current
use of Colorado Avenue between the Property and the Santa Monica
Pier Bridge in a fashion which eliminates vehicular access from the
Highway Access Road to Ocean Avenue, then Owner shall be obligated
to negotiate in good faith with City for the purpose of providing
an easement through the Project for vehicles driven by tenants or
guests of the existing City-owned apartment building located at
1616 Ocean Avenue. Such an easement shall provide those tenants
and their guests with reasonable vehicular access from the delivery
entrance off of the Highway Access Road through the parking garage
to the exit onto Ocean Avenue from the Project driveway. Such an
easement shall be limited in scope to ensure that its use is
consistent with the reasonable security and safety needs of the
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Revised: 2/77/94-4LDAB77.848
Project. The terms of any such easement shall be specified in a
mutually executed document recorded as a deed restriction against
the Property at the time the City vacates, condemns or otherwise
modifies the use of Colorado Avenue at this location. This
easement would immediately and automatically terminate upon
demolition of the existing apartment building located at 1616 Ocean
Avenue, Santa Monica.
In consideration for any such easement, the City shall agree
to improve a portion of Colorado Avenue at this location in a
manner which enhances its pedestrian features and character. The
minimum portion of Colorado Avenue to be improved in this manner
shall be located immediately west of Ocean Avenue and shall have
dimensions of at least 25 feet in width and the length shall extend
between the southeastern corner of the Pier Bridge and the
northeastern corner of the Project Site. In no event shall the use
or physical characteristics of Colorado Avenue be improved or
modified in a manner incompatible with the Project.
5.10 Public Access To Desianated Areas In Pro~ect. Owner
hereby covenants and agrees to make those areas designated on the
Project Site Plan as "Public Areas" open and available to the
general public beginning at 9:00 a.m. and concluding at 9:00 p.m.
seven days a week £or the limited purposes of walking, strolling,
reading, eating, sitting, conversing in small groups and for no
other purpose.
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5.11 Off-Site Imnrovements. Items 1 through 12 as listed
on Exhibit "F" attached hereto and incorporated herein by this
reference shall be completed by Owner prior to issuance of a
certificate of occupancy for the Project. If the Project Site
Plans are refined or modified by Owner in a manner consistent with
this Agreement but which, under standard practice by City's
Department of General Services would give rise to additional off-
site improvements, then City shall have the right under this
Agreement to require such additional off-site improvements to be
completed by Owner prior to issuance of a certificate of occupancy
for the Project provided that they have a lawful nexus to the
Project.
5.12 No Additional Mitiqations. Except as set forth in
Section 5 or otherwise provided in this Agreement, the City shall
not impose any mitigation measures or fees in lieu thereof on the
Project for impacts caused by development of the Project, nor shall
the City increase the amount of any mitigation fees except as
specifically allowed by Section 5. This Section 5 shall not
preclude application of any fee or measure to Owner which complies
with the Subsequent Code Changes provision in Section 10.1 below.
6. COMMENCEMENT OF CONSTRUCTION.
6.1 Pursuit of Construction. This Agreement shall
automatically terminate (a) if Owner has not obtained a building
permit for the Project from the City within two (2) years after the
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Revised. 2/17/94-4LDAB77.848
Effective Date of this Agreement, or (b) if, at any time more than
two (2) years after the Effective Date of this Agreement, the
building permit for the Project lapses before Owner obtains a
certificate of occupancy for the Project. Beginning two (2) years
after the Effective Date of this Agreement, Owner shall have an
obligation to diligently pursue construction of this Project to
completion; provided, however, that in accordance with Section
303(d) of the Uniform Building Code, Owner shall have the right to
timely seek from City's Chief Building Officer a 180-day extension
of the building permit for the Project even if Owner has not
commenced construction of the Project within the first 180 days
after its issuance.
6.2 Extension For Excusable Delays. On written
application from Owner, the Zoning Administrator shall grant a six
(6) month extension of the time for Owner to obtain a building
permit for the Project, or to pursue the Project diligently during
construction, if the Zoning Administrator finds that Owner has been
prevented from satisfying Owner's obligations under Section 6.1
because of any of the following:
6.2(a) War, insurrection, strikes, walk-outs,
riots, floods, earthquakes, fires, casualties, acts of God, or
similar grounds for excused performances which are not within the
reasonable control of the party to be excused.
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Revised: 2/17/94-4LDA817.848
6.2(b) Governmental restrictions or moratoria
imposed by the City against property development or building
construction, if applicable despite the vested rights conferred by
this Agreement.
6.2(c) Restrictions or moratoria imposed by
judicial decisions or by litigation contesting the validity, or
seeking the enforcement or clarification of, this Agreement whether
instituted by the Owner, the City or any other person or entity.
6.2(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.
6.2(e) The City's £ailure to satisfy Section 14 of
this Agreement.
6.3 Lack of Financinq. Under no circumstances shall the
inability of the Owner to secure financing be an excusable delay to
the obligations of the Owner, except as to the 180-day extension of
the time to commence exercising the Project building permit as
authorized by Uniform Building Code Section 303(d).
7. MINOR CHANGES TO PROJECT AND PROJECT SITE PLAN. Without
amending this Agreement, the Owner may make minor changes to the
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Revised. 2/17/94-4LDA877.848
Project or Project Site Plan upon approval of the Zoning
Administrator within the following limits: The maximum height of
the Project cannot be increased by the Zoning Administrator; the
list of permitted uses contained in Section 4.1 cannot be changed
by the Zoning Administrator, although the Zoning Administrator can
determine what are "accessory uses" pursuant to Section 4.1(f) of
this Agreement; the Zoning Administrator cannot decrease the
minimum setback requirements for the Project; the Zoning
Administrator cannot increase the maximum floor area or maximum FAR
of the Project; and the 2oning Administrator cannot increase the
maximum floor area limitations for restaurants and office uses
permitted in the Agreement. Minor modification as authorized by
this Section 7 shall be reviewed by the Zoning Administrator in
accordance with the Zoning Administrator's typical practice of
reviewing minor modification requests for projects, together with
specific findings by the Zoning Administrator that the proposed
changes are consistent with the provisions, purposes and goals of
this Agreement, are not detrimental to the public health, safety,
convenience or general welfare, and will not significantly and
adversely affect the architectural integrity of the Project or the
public benefits associated with the Project.
8. ASSIGNMENT: BINDING EFFECT. This Agreement shall not be
severable from Owner's interest in the Project Site and the
Project. Any transfer of any portion of the Project Site or
Project shall automatically operate to transfer the benefits and
burdens of this Agreement with respect to said portions. Owner may
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ReVised: 2/77/94-4LDAB17.848
freely sell, transfer, exchange, hypothecate, encumber or otherwise
dispose of its interest in the Project Site and Project, or any
portion thereof, without the consent of the City. Owner shall,
however, give notice to City of any transfer hereunder, disclosing
therein the identity of the transferee and such transferee's
address, in accordance with Section 26 herein.
9. RELEASE UPON TRANSFER. Upon the sale, transfer, exchange
or hypothecation of Owner's rights and interests to the Project
Site, or any portion thereof, Owner shall be released from its
obligations under this Agreement with respect to the Project Site
and Project, or any portion thereof so transferred if: Owner has
provided notice of such transfer to City, the transferee executes
and delivers to City a written agreement in which the transferee
e~cpressly and unconditionally assumes all of the obligations of
Owner under this Agreement with respect to the Project Site and
Project, or portion thereof so transferred, and City consents to
such release, which consent shall not be unreasonably withheld
based upon the status of completion of the Project and the ability
of the transferee to comply with this Agreement. Failure to
deliver a written Assumption Agreement hereunder shall not affect
the transfer of the benefits and burdens as provided in Section 8
above.
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10. EFFECT OF AGREEMENT ON LAND USE REGULATIONS.
10.1 Apnlication of Governina Reaulations, Except as
provided in Section 3.9 or otherwise in this Agreement, development
of the Project Site and the Project, including without limitation,
density, permitted uses, intensity of use, design and improvement
shall be governed by the Governing Regulations. Development of the
Project Site and the Project shall not be governed by any
amendments, revisions, additions or deletions to the Governing
Regulations or new laws or regulations of the City governing or
affecting development adopted subsequent to the Effective Date of
this Agreement unless any one of the following occurs:
10.1(a) The City and the Owner mutually agree in
writing.
10.1(b) The Subsequent Code Changes are required by
changes in state or federal laws or regulations as provided in
Government Code Section 65869.5.
10.1(c) The Subsequent Code Changes satisfy each of
the following conditions:
10.1(c)(i) The Subsequent Code Changes do
not impair the rights of the Owner to develop the Project Site as
contemplated in this Agreement.
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Rev~sed. 2/17/94-4LDAB77.848
10.1(c)(iij If Subsequent Code Changes
distinguish between "existing" development and "new" or "proposed"
development, the Project is considered as "existing" development.
10.1(c)(iii) The Subsequent Code Changes are
uniformly applicable to all businesses, uses, buildings and
structures which are similar to the businesses, uses, buildings and
structures permitted in the Project throughout a reasonably defined
geographical area of the City.
The term "Subsequent Code Changes" as used in this
Section 10.1 is intended to include, among other things, any
amendments, revisions or additions to the Governing Regulations
imposing or requiring payment of a fee, special assessment or tax.
10.2 Processinq and Permit Fees. Owner shall be subject
to all City-imposed Processing and Permit fees and charges,
including utility connection fees, with respect to applications for
development and construction within the Project Site which are in
effect on the date on which each application is filed.
10.3 Inconsistent Code Provisions. As applied to this
Agreement and the Project, any provisions of the Santa Monica
Municipal Code or appendices thereto inconsistent with the
provisions of this Agreement, to the extent of such inconsistencies
and not further, are hereby modified to that extent necessary to
effect the provisions of this Agreement.
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11. ARCHITECTURAL REVIEW.
il.i Purpose. Because this Project Site is in a very
sensitive location given its close proximity to the Santa Monica
Pier Bridge, the Santa Monica Pier Sign and the Santa Monica Pier,
the City's Planning Commission shall ensure that the Project is
constructed with high quality materials, that it is visually
interesting and expressive of good taste, and that its overall
design and attention to details are given careful attention. It is
Owner's and City's mutual goal to ensure that this Project shall be
a"First Class" or "Class A" multi-use retail/restaurant/office
building which shall complement and enhance the Santa Monica Pier
area.
11.2 Authority. The Planning Commission shall review all
building textures, colors and materials, the building design and
building ornamentation, the Project's contextual relationships to
the surrounding area and historical compatibility, the continuity
and integrity of its design, its architectural style and theme, the
roof forms, all fenestration and articulation, the surface
treatments of sidewalks and plazas, all new signage, all awnings,
canopies and other window treatments, the trash enclosures and
screening, and the landscaping, liqhting, irrigation and drainage
plans for the Project in accordance with design review procedures
in effect under the Governing Regulations. Decisions of the
Planning Commission under this Section 11 shall not be appealable.
The Planning Commission's review of the Project under this Section
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Revised: 2/77/94-4LDA817.848
11 shall be exercised in accordance with the standards, guidelines,
rules and practices of the Architectural Review Board pursuant to
Chapter 9.32 of the Zoning Ordinance. For purposes of this
Project, the Planning Commission shall have the same powers and
limitations as the Architectural Review Board would in reviewing
any development project pursuant to Chapter 9.32 of the Zoning
Ordinance. The Planning Commission shall conduct its hearing
within 60 days and render its decision within 90 days on the
architectural review of this Project after submittal of a completed
application for architectural review from Owner.
11.3 Soecial Concerns. In its review of this Project,
the Planning Commission shall take into consideration the Project's
unique location. The Planning Commission shall pay particular
attention to the following features of the Project: (a) the
proposed landscaping along the exposed garage levels on the west
side of the Project facing the Pacific Ocean, to reduce the
perceived massing of the Project; (b) the proposed landscaping on
the south side of the Project in the unexcavated side yard
described in Section 3.5; (c) the fenestration and articulation of
the northern facade of Building B as it relates to the Pier Bridge;
(d) the design of the northern facade of Building B to ensure that
it is designed to receive the Pedestrian Connection Bridge as
discussed in Section 5.8; (e) the compatibility of the Project with
the Lobster Building, the Santa Monica Pier, the Pier Sign and the
Pier Bridge in terms of textures, colors, materials and design
features; (f) the quality of materials and overall design to ensure
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Revised: 2/17/94-4LDR877 848
the Project shall be a"First Class" or "Class A" buildinq; and
(g) the roof lines, fenestration, awnings and paving materials for
their pedestrian orientation and compatibility with the Santa
Monica Pier, the Pier Sign, the Pier Bridge and the Lobster
Building.
11.4 Finishina Materials. Attached hereto as Exhibit "G"
and incorporated herein by this reference is a list of finishing
materials for the Project. Although Owner shall not be bound by
this Agreement to use the precise materials specified therein,
Owner shall be obligated to use materials of a comparable quality
as may be approved by the Planning Commission. The intent of
Exhibit G is not to restrict either the Planning Commission or the
Owner to the precise materials for the Project as specified in
Exhibit G, but rather to reflect the overall quality of finishing
materials to be used in the Project.
11.5 Limitations. The Planning Commission shall have no
authority to disapprove or conditionally approve any features or
matters which have been specifically approved by this Agreement or
in the Project Site Plan.
12. SPECIAL ASSESSMENTS. Notwithstanding anything to the
contrary in this Agreement, the Owner shall be subject to special
assessments of general application in the City or in the City's
beach region, including but not limited to, any special assessments
47
Revised: 2/17/94-4LDA817.848
for beach related improvements, which are lawfully imposed upon the
Owner.
13. CERTIFICATES OF OCCUPANCY. Upon completion of any
portion of the Project for which a separate building permit has
been issued in compliance with such building permit, the Governing
Regulations, this Agreement and other applicable agreements between
City and Owner, and subject to the restoration obligations
described in Section 3.8, the City shall promptly issue a Temporary
or Final Certificate of Occupancy therefor to Owner.
14. PROMPT REVIEW AND ISSUANCE OF NECESSARY PERMITS AND
APPROVAIS. City shall promptly commence and diligently proceed to
complete all applicable City procedures and processes then
uniformly in effect to grant or issue any approvals, consents, or
permits which are necessary or reasonably desired by the Owner for
the development by the Owner of the Project and the Project Site in
accordance with the Project Site Plan and this Agreement.
15. PERIODIC REVIEW OF COMPLIANCE WITH AGREEMENT.
15.1 City Review. The City shall review this Aqreement
at least once every twelve (12) month period from the Effective
Date.
15.2 Required Findinqs. During each periodic review by
the City, Owner shall be required to demonstrate good faith
48
Reviseci: 2/17/94-4LDAB77.848
compliance with the terms of this Agreement. In connection
therewith, on or before July ist of each calendar year during the
term of this Agreement, beginning with July 1, 1994, the Owner
shall provide a written report to the City in which an officer of
the Owner provides factual evidence of good faith compliance by the
Owner with the terms of this Agreement during the prior calendar
year, except for those areas of non-compliance which are
specifically set forth in the written report together with the
reasons advanced by the Owner for non-compliance. If, as a result
of such periodic review, the City Council finds and determines, on
the basis of substantial evidence, that the Owner has not complied
in good faith with the terms or conditions of this Agreement, the
City Council shall commence proceedings to enforce, modify or
terminate this Agreement.
15.3 Public Hearinq. If the City should determine on the
basis of substantial evidence that the Owner has not complied in
good faith with the terms and conditions of this Agreement, and
further determines to proceed with modification or termination of
this Agreement in accordance with Section 15.2, the City shall
provide written notice to the Owner of its intention to modify or
terminate this Agreement unless the Owner cures or corrects the
acts or omissions that constitute the basis of such determinations
by the City. The notice shall be delivered by the City to the
Owner in accordance with Section 26 and shall contain all of the
following:
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Rev~sed: 2/17/94'4LDAB17.848
15.3(a) The time and place of a public hearing to be
held by the City Council, no less than ten (10) days after delivery
of the notice to Owner, on the determination of the City to proceed
with modification or termination of this Agreement.
15.3(b) A statement as to whether the City proposes
to modify or terminate this Agreement.
15.3(c) Any proposed modifications to this
Agreement.
If, following the conclusion of the public hearing, the
City Council determines that the Owner has not been in good faith
compliance with this Agreement and further determines any one of
the following three items: (i) the acts or omissions constituting
the basis of that determination are permanently incapable of being
cured, or (ii) the Owner has not cured the acts or omissions that
constitute the basis of this determination, or (iii) if those acts
or omissions could not be reasonably remedied prior to the public
hearing, that Owner 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 the City Council may take such action as it deems necessary to
protect the interests of the City pursuant to this Agreement,
including the right to terminate this Agreement. Nothing herein
shall preclude Owner from exercising its right to seek a judicial
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determination, judgment or award, on the grounds that the City is
not proceeding lawfully or in accordance with this Agreement.
16. ENFORCEMENT. Except as provided in Government Code
Section 65869.5, this Agreement is enforceable by any party to it
notwithstanding a subsequent change in any applicable general or
specific plan, land use, zoning, subdivision or building
regulations adopted by the City which alters or amends the
Governing Regulations.
17. VALIDITY OF AGREEMENT. In any litigation concerning this
Agreement, neither party hereto shall assert as a claim or defense
the invalidity of this Agreement.
18. DEFAULT. The City or the Owner shall be in default under
this Agreement upon the happening of one or more of the following
events or conditions (nEvent of Defauit°j:
18.1 Owner Defaults. Owner shall be in default under
this Agreement ("Owner Defaults") if Owner fails to satisfy any of
its obligations under this Agreement, including, but not limited
to, the following:
18.1(a) The Owner fails to pay the City any amount
due under this Agreement as and when due, and such failure to pay
continues for a period of ten (10) days after written notice from
City.
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18.1(b) The Owner fails to perform or comply in good
faith with any of the other agreements, terms, covenants or condi-
tions of this Agreement on Owner's part to be performed or complied
with, and any of the following is true: (i) the act or omission of
nonperformance or noncompliance can no longer be performed or
corrected, or (ii) such nonperformance or noncompliance continues
without change for a period of thirty (30) days after written
notice from City, or (iii) if such performance cannot reasonably be
completed within such thirty (30) day period, Owner has not in good
faith commenced such performance within such thirty (30) day period
or has not diligently and continuously proceeded therewith to
completion; provided, however, that in no event shall such cure
period be extended beyond one hundred twenty (120) days from the
date of such notice.
18.1(c) A finding and determination by the City
Council is made upon the basis of substantial evidence following a
periodic review under Section 15 that Owner has not complied in
good faith with the terms or conditions of this Agreement and has
not cured or corrected the act(s) or omission(s) which were the
basis for such determination.
18.2 City Defaults. The City shall be in default under
this Agreement ("City Defaults") if the City fails to satisfy any
of its obligations under this Agreement, including the following:
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18.2(aj The City fails to comply in good faith with
the requirements of any of the agreements, terms, covenants or
conditions of this Agreement on the City's part to be performed or
with which the City must comply and any of the following is true:
(i) the act or omission of nonperformance or noncompliance can no
longer be performed or corrected by City, or (ii) such failure
continues without change for a period of thirty (30) days after
written notice from the Owner, or (iii) if such failure cannot
reasonably be remedied by City within such thirty (30) day period,
City has not in good faith commenced to cure such failure within
such thirty (30) day period or has not diligently and continuously
proceeded therewith to completion (provided, however, that in no
event shall such cure period be extended beyond one hundred twenty
[120] days from the date of such notice).
19. PROCEDURE UPON DEFAULT.
19.1 Termination by City. Subject to Section 19.3 below,
upon the occurrence of an Owner Default, the City may terminate
this Agreement upon written notice to Owner.
19.2 Termination by Owner. Upon the occurrence of a City
Default for failure by the City to comply in good faith with the
requirements of this Agreement regarding the permitted use and
development of the Project Site, including without limitation, the
obligations of the City under this Agreement to review and issue
permits and approvals applied for by Owner in connection with the
53
Revised: 2/17/94-4LDAB17.848
development of the Project or use of the Project Site, Owner may
terminate this Agreement upon written notice to the City.
19.3 Remedies Cumulative. Any right or remedy of the
parties under this Agreement and any other right or remedy that
either party may have at law or equity, including specific
performance, upon the breach of any covenant, agreement, term,
provision or condition in this Agreement by the defaulting party
shall be distinct, separate and cumulative rights or remedies and
no one of them, whether exercised by the non-defaulting party or
not, shall be deemed to be in exclusion of any other. The
non-defaulting party may, in its discretion, exercise any and all
of its rights and remedies, at once or in succession, at such time
or times as the non-defaulting party considers appropriate.
19.4 Cessation of Riqhts and Obliqations. If this
Agreement is terminated on account of an Event of Default, except
as otherwise provided in this Agreement, the rights, duties and
obligations of the parties hereunder shall cease as of the date of
such termination. If the City is the terminating party, then any
and all benefits, including money received by the City, shall be
retained by City. If this Agreement is duly terminated before a
certificate of occupancy has been issued for the Project, then all
buildings and uses in the Project must satisfy the City's
ordinances, standards and policies as they then exist. If this
Agreement is duly terminated after a certificate of occupancy has
been issued for the Project, then all uses in the Project must
54
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satisfy the City's ordinances, standards and policies as they then
exist, including any obligations to obtain conditional use permits
for operations of the restaurants and offices in the Project.
20. NOTICE OF TERMINATION. Upon termination of this
Agreement as to the Project Site and the Project, or any portion
thereof, the parties hereto shall execute an appropriate notice of
termination suitable for recording in the official records of Los
Angeles County.
21. MORTGAGEES.
21.1 Notice to Mortqaqee. A Mortgagee may give notice to
the City, specifying the name and address of such Mortgagee and
attaching thereto a true and complete copy of the Mortgage held by
such Mortgagee and specifically requesting City to notify them of
any future notices of Owner Default. If such notice has been
requested, the City shall thereafter send to such Mortgaqee a copy
of each notice of default by the Owner which relates to, affects,
or potentially may adversely affect, the interest of the Owner in
the Project Site or portion thereof which serves as security for
the Mortgage at the same time as and whenever any such notice of
default shall be given by the City to the ~wner, addressed to such
Mortgagee at its address last furnished to the City, and the period
within which a Mortgagee may cure a particular default hereunder,
as set out in Section 21.2 below, shall not begin to run until the
City has sent to the Mortgagee such copy of a notice of such
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Revised: 2/17/94-4LDAB77.848
default. City has no such obligation to notify the Mortgagee of
any Owner Defaults if that Mortgaqee has not exercised its right
under this Section to receive notification of Owner Defaults. Any
failure by City to provide notice of an Owner Default to a
Mortgagee entitled to such notice under this Section shall not
extend the time for Owner to cure under Section i8 so long as Owner
received proper notice of that Owner Default as specified in this
Agreement.
21.2 Cure of Default by Mortqaqee. Such Mortgagee, after
the period for the Owner to cure has passed, shall thereupon have
an additional period of ten (10) days in the case of any default in
the payment of money, and an additional thirty (30) days in the
case of any other default, for remedying the default or causing the
same to be remedied. If the Owner shall be in default hereunder,
such Mortgagee shall have the right to remedy such default, or
cause the same to be remedied within the period and otherwise as
herein provided. The City shall accept performance by any such
Mortgagee of any covenant, condition, or agreement on the Owner's
part to be performed hereunder with the same force and effect as
though performed by the Owner. City shall have no right to modify
or terminate this Agreement based on an Owner Default, so long as
such Mortgagee shall, in good faith, have commenced promptly to
rectify the same and shall thereafter prosecute the same to
completion with diligence and continuity; provided, however, that
in no event shall such period to cure extend beyond one hundred
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fifty (150) days after the date Mortgagee receives City's
notification of Owner's Default.
21.3 Extension of Time to Cure. The period of time given
to the Mortgagee to cure any default by the Owner which reasonably
requires that said Mortgagee be in possession of the Project Site
to do so, shall be deemed extended to include the period of time
reasonably required by said Mortgagee to obtain such possession (by
foreclosure, the appointment of a receiver or otherwise) promptly
and with due diligence; provided, however, that during such period
all other obligations of the Owner under this Agreement, including,
without limitation, payment of all amounts due, are being duly and
promptly performed.
21.4 Liabilitv of Mortaaaee. No Mortgagee shall become
liable under the provisions of this Agreement unless and until such
time as it takes possession or becomes the owner of the estate
covered by its Mortgage, and then only for obligations arising or
accruing during or with respect to the time it is in possession or
is the owner under such estate; but the preceding portion of this
sentence shall not limit or restrict in any way the City's
authority to terminate this Agreement, as against any Mortgagee as
well as against the Owner if any curable default hereunder
(including, without limitation, any default in the payment of any
amount due) is not completely cured within the time period allowed
hereunder for such cure.
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Rev~sed: 2/17/94-4LDAB17.848
21.5 Mortqaqee. For purposes of this Section 21, a
Mortgagee shall include any holder of a Deed of Trust, Mortgage, or
other security interest in or on all or any portion of the Project
Site including without limitation an individual, limited or general
partnership, corporation, institutional lender or pension trust.
22. DURATION OF AGREEMENT. This Agreement shall expire
fifty-five (55) years from the Execution Date, or earlier upon
mutual written agreement of Owner and City. After expiration or
full satisfaction of this Agreement, the parties shall execute an
appropriate certificate of termination which shall be recorded in
the official records of Los Angeles County.
23. IMPAIRMENT BY SUBSEQUENT LAWS. If any agency other than
the City passes any law or regulation after the date of this
Agreement or takes or refuses to take any action which prevents,
precludes or impairs compliance with one or more of the provisions
of this Agreement, then the parties shall meet and confer in good
faith to determine the feasibility of modifying or suspending one
or more provisions of this Agreement to comply with such new law or
regulation or to address the action or refusal to act based upon
the effect such modification or suspension would have on the
purposes and intent of this Agreement. In such event, the City
shall specifically and in good faith process any necessary
amendments to this Agreement in accordance with Government Code
Section 65868. In addition, the Owner shall have the right to
challenge the new law or regulation or the action or refusal to act
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which prevents compliance with the terms of this Agreement, and, in
the event such challenge is successful, this Agreement shall remain
unmodified and in full force and effect. During any pending
challenges, the City may enforce its right under this Agreement
unless there is an interim court order to the contrary.
24. ESTOPPEL CERTIFICATE. Either party may, at any time, and
from time to time, deliver written notice to the other party
requesting such party to certify in writing that this Agreement is
in full force and effect, that this Agreement has not been amended
or modified either orally or in writing, or if so amended,
identifying the amendments whether or not, to the knowledge of such
party, the requesting party is in default or claimed default in the
performance of its obligations under this Agreement, and, if so,
describing the nature and amount of any such default or claimed
default, and whether or not, to the knowledge of such party, any
event has occurred or failed to occur which, with the passage of
time or the giving of notice, or both, would constitute a default
and, if so, specifying each such event. A party receiving a request
hereunder shall execute and return such certificate within thirty
(30) days following the receipt thereof. The City Manager shall
have the right to execute any certificate requested by the Owner
hereunder. The City acknowledges that a certificate hereunder may
be relied upon by transferee, Mortgagees or other parties.
25. RECORDING OF AGREEMENT. The parties hereto shall cause
this Agreement to be recorded in the Official Records of the County
59
Revised: 2/17/94-4LDR817.848
of Los Angeles. The cost, if any, of recording this Agreement
shall be borne by the Owner.
26. NOTICES. Any notice, demand, request, consent, approval
or communication which either party is required to or may give to
the other hereunder shall be in writing and shall be delivered or
addressed to the other at the address below set forth or to such
other address as either party may from time to time direct by
written notice given in the manner herein prescribed, and such
notice or communication shall be deemed to have been given or made
when communicated by personal delivery or by independent courier
service or by facsimile or if by mail on the third business day
after the deposit thereof in the United States Mail in Los Anqeles
County, California, postage prepaid, registered or certified,
addressed as hereinafter provided. All notices, demands, requests,
consents, approvals or communications from the Owner to the City
shall be addressed to the City at:
City of Santa Monica
1685 Main Street
Santa Monica, California 90401
Attention: Director of Planning
With copies to: City Attorney
City of Santa Monica
1685 Main Street
Santa Monica, California 90401
60
Revised: 2/77/94-4LDAB17.848
All notices, demands, requests, consents, approvals or
communications from the City to the Owner shall be addressed to the
Owner at:
John B. Kilbane & Associates Inc.
2716 Ocean Park Blvd., Suite 3082
Santa Monica, California 90405
Attention: John B. Kilbane
With copies to: Lawrence & Harding, P.C.
1250 Sixth Street, Suite 300
Santa Monica, CA 90401
Attention: Christopher M. Harding, Esq.
27. AOLD HARMLESS. The Owner agrees to and shall hold the
City, its officers, agents, employees and other representatives
harmless from liability for damage or claims for damage for
personal injury including death and claims for property damage
which may arise from the direct or indirect operations of the Owner
or those of its contractor, subcontractor, agent, employee or other
person acting on its behalf which relate to the Project, including
the maintenance and operation of public invited activities. Owner
agrees to and shall defend the City and its officers, agents,
employees and representatives from actions for damages as described
above caused or alleged to have been caused by reason of the
Owner's activities in connection with the Project. This Section 27
applies to all damages and claims for damages suffered or alleged
to have been suffered by reason of the operations referred to
herein, regardless of whether or not the City prepared, supplied or
approved plans or specifications or both for the Project.
61
Revised: 2/77/94-4LDAB77.848
28. ENTIRE AGREEMENT. This Agreement sets forth all of the
agreements, conditions and understandings between the City and the
Owner relative to the Project Site and the Project and there are no
promises, agreements, conditions or understandings, oral or
written, expressed or implied, between them other than as set forth
or as referred to herein.
29. NO ORAL MODIFICATION. No statement, action or agreement
hereafter made shall be effective to change, amend, waive, modify,
discharge, terminate or effect an abandonment of this Agreement in
whole or in part unless such statement, action or agreement is in
writing, is adopted by mutual written agreement of the parties, and
is processed in accordance with Government Code Section 65868 to
the extent required.
30. TABLE OF CONTENTS AND SECTION HEADINGS. The table of
contents and section headings are inserted herein only for
convenience and are in no way to be construed as part of this
Agreement, or an indication of the meaning of the provisions of
this Agreement or the intention of the parties, or as a limitation
in the scope of the particular sections to which they refer.
31. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this
Agreement shall be deemed to create a partnership or joint venture
between the City and the Owner or to render either party liable in
any manner for the debts or obligations of the other.
62
Revtsed: 2/17/94-4LDA817 848
32. ATTORNEYS' FEES. In the event any of the parties to this
Agreement is required to bring any action at law or in equity to
collect the payment of any consideration due hereunder or to
enforce any of the terms or conditions of this Agreement, the
prevailing party shall be reimbursed by the non-prevailing party
for such costs as may be incurred in the bringing of such action,
including reasonable attorneys' fees.
33. EXHIBITS. All exhibits attached hereto or referred to in
this Agreement, or both, are incorporated herein as though set
forth in full.
34. CONSTRUCTION. The parties agree that each party and its
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.
35. GOVERNING LAW. This Agreement shall be governed
exclusively by the provisions hereof and by the laws of the State
of California.
36. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrumeht.
63
Revised: 2/17/94-4LDA817.848
37. BINDING EFFECT. It is intended and determined that the
provisions of this Agreement shall constitute covenants which shall
run with the land comprising the Project Site for the benefit
thereof and that the burdens and benefits thereof shall bind and
enure to the benefit of all successors-in-interest to the parties
hereto.
38. AGREEMENT TO COOPERATE. Zn the event of any legal action
instituted by a third party or other governmental entity or
official challenging the validity of any provision of this
Agreement, the parties hereby agree to cooperate in defending said
action.
39. NO THIRD PARTY BENEFICIARY. Nothing in this Agreement
shall create any rights, as a third party beneficiary or otherwise,
in any person or entity not a party to this Agreement.
40. COOPERATION IN PROVIDING ASSURANCES. Upon request by
Owner, City shall cooperate in good faith to provide reasonable
assurances to prospective financing sources or purchasers regarding
the effect of this Agreement.
41. CONTINGENCY. As noted in Recitals C and D, City is in
the process of vacating 800 square feet of alley adjacent to the
Property. City has a good faith obligation to Owner to process the
aforementioned vacation. If, notwithstanding City's good faith
efforts, this portion of the alley is not vacated within six (6)
64
Revised: 2/77/94•4LDpB77.848
months after the Effective Date, then this Agreement shall
automatically be terminated and shall have no further force or
effect. This Agreement shall not prejudice the City's power to
deny the alley vacation described in Recitals C and D if City
cannot make the necessary findings required by law to authorize
such an alley vacation.
42. PURCHASE AND SALE OF TARGET PROPERTY.
42.1 Description of Tarqet Property. So long as the
contingency specified in Section 41 is satisfied, City shall agree
to sell to Owner and Owner shall agree to purchase from City the
Triangular Property together with City's interest in the
southwesterly half of the Alley Property. This property to be
conveyed in accordance with this Section 42 ("Target Property")
consists of 747 square feet and is more particularly described in
Exhibit "H" attached hereto and incorporated by this reference
herein.
42.2 Necessary Citv Findinqs. The City hereby declares
that the Target Property is no longer needed for any public purpose
and that it may be sold pursuant to Santa Monica Municipal Code
Section 2.24.110. Concurrently with the adoption of this
Agreement, the City Council has duly resolved that it would be of
no avail and would cause unnecessary expense and delay to advertise
the Target Property for public sale due to its small size and
particular location and has further resolved that the sale of the
65
Revised: 2/77/94-4LDAB77.848
Target Property to Owner without a public bid is in the best
interests of the City.
42.3 Purchase Price. Owner shall be required to pay, and
City shall be required to accept, a purchase price ("PUrchase
Price") for the Target Property equal to $60,000.
42.4 Title insurance. Concurrently with the sale of the
Target Property to Owner, City shall provide Owner at City's cost
and expense with a CLTA Owner's Standard Policy of Title Insurance
issued by Chicago Title Company in the amount of the Purchase
Price, showing title vested in Owner free of any liens,
encumbrances, easements, restrictions, covenants or conditions.
42.5 Easement for Citv Maintenance Vehicle. In addition
to paying City the Purchase Price for the Target Property, Owner
shall grant City an easement onto the Property for purposes of
permitting reasonable access by City's employees or agents to
temporarily park a maintenance vehicle within the Project from time
to time while working on the City-owned apartment building located
at 1616 Ocean Avenue. This easement will immediately and
automatically terminate upon demolition of the existing apartment
building at that location. A written agreement granting this
easement will be recorded against the Property after approval and
execution by City and Owner. Owner shall not unreasonably withhold
approval of the form and content of the instrument granting this
easement.
66
Revtsed• 2/17/94'4LDAB17.848
43. C~TY VACATION OF UNUSED UTILITY EASEMENTS BENEATH
P~OPERTY. City agrees to execute all documents reasonably
necessary to vacate the unused easements located under a portion of
the Property for utility easements as recorded in Book 6779, Page
20 of Deeds and in Book 6786, Page 33 of Deeds in the Office of the
County Recorder of Los Angeles County. The parties agree that
these easements were originally executed in approximately 1918 and
are not now in use.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
CITY: CITY OF SANTA MONICA
By:
John Jalili, City Manager
ATTEST:
CLARICE E. DYKHOUSE, City Clerk
OWNER: JOHN B. KILBANE & ASSOCIATES, INC.
a California corporation
By:
John B. Kilbane, President
MYRON L. NATHAN
LORRAINE NATHAN
67
Revised: 2/17/94-4LDA677.848
APPROVED AS TO FORM:
JOSEPH LAWRENCE, Acting City Attorney
LAWRENCE & HARDING
a Professional Corporation
By:
Christopher M. Harding
Attorneys for Owner
Ju:4LDA617.848
68
Rev~sed: 2/17/94-4LDAB77.848
EXHIBIT A
EXHIBIT "A"
"Lots 1, A& B of the Moss Tract, in the City of Santa
Monica, County of Los Angeles, State of California, as
per map recorded in Book 36 Pages 64 and 65 of Mags, in
the Office of the County Recorder of said County; EXCEPT
THEREFROM that portion of said Lot B granted to the State
of California in the deed recorded as Document No. 740 on
December 21, 1940 in Book 18040 Page 249 of Official
Records."
EXHIBIT B
LEGAL DESCRIPTION
THAT PORTTON OF A 20 FOOT WIDS ALLEY OF THE MOSS TRACT, IN
THE CITY OF SANTA MONICA, IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 36 PAGES 64
AND 65 OF MAPS, IN THE OFFICE OF 2HE COUNTY RECORDER OF SAID=
COUNTY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST WESTERLY CORNER OF IAT B OF SAID MOSS
TRACT;
THENCE NORTfi 45 DEGREES 40 MINUTES 20 SECONDS EAST AIANG THE
NORTHWESTERLY LINE OF SAZD IAT 35.01 FEET~
THENCE SOUTHERLY ALONG A CURVE CONCAVE EASTERLY HAVING A _
RADIUS OF 31 FEET AND TANGENT TO SAID NORTHWESTERLY LINE~
THROUGH A CENTRAL ANGLE OF 100 DEGREES 37 MINUTES 43 SECONDS
AN ARC DISTANCE OF 54.45 FEET TO A POINT OF COMPOUND CURVE~
A RADIAL LINE TO SAID POINT BEARS SOUTH 35 DEGREES 02
MINUTES 37 SECONDS WEST~
THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE NORTHEASTERLY
HAVING A RADIUS OF 337 FEET, THROUGH A CENTRAL ANGLE OF 6
DEGREES 42 MItdUTES 41 SECOI~IDS AN ARC DISTANCE OF 39.47 FEET
TQ A POINT IN THE SOUTHEASTERLY LINE QF SATD LOT B, DISTANT
THEREON NORTA 45 DEGREES 40 MINUTES 20 SECOiIDS EAST 66.83
FEET FROM TFIE MOST SOUTHERLY CORNER OF SAID IAT~
TIiECICE NORTH 45 AEGREES 40 MI2iUTES 20 SECONDS EAST AIAISG THE
SOUTHEASTERLY LINE OF IAT S, 15.88 FEET TO THE MOST WESTERLY
CORNER OF SAIB 20 FOOT WIDE ALLEY BEING TAE TRUE POINT OF
BEGIi3N ING ~ •
THENCE NORTH 45 DEGREES 40 MINUTES 20 SECONDS EAST AND
CONTINUING ALOi3G THE SOUTHEASTERLY LINE OF IAT B, 20.00 FEET
TO TIiE MOST NORTHERLY CORNER OF THE 20 FOOT WIDE ALLEY;
THENCE SOUTH k4 DEGREES 16 MINUTES 40 SECONDS EAST ALONG THE
SOIITHWESTERLY LINE OF IAT 1 OF SAID MOSS TRACT, 40.00 FEET
TO THE MOST SOUTHERLY CORNER OF SAID LOT 1;
THENCE SDUTH 95 DEGREES 40 MINUTES 20 SECONDS WEST AIANG THE
SOUTHWESTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF LOT
1, 20.00 FEET TO THE NORTHEASTERLY LINE OF LOT 18 OF SAID __
MOSS TRACT;
THENCE NORTH 44 DEGREES 16 MINUTES 40 SECONDS WEST ALONG THE
NORTHEASTERLY LINE OF IATS 18 AND 19 OF SAIA MOSS TRACT,
40.00 FEET TO THE TRIIE POINT OF BEGINNING.
CONTAINS: 800 SQUARE FEET.
EXHIBIT "S"
~.~°~.y;•,
+T SF'Q IFN~ S~f'%~~ .
`V4.~ PQ,V D. P~.r~~l~
3 ~ ~y~~`,!_
~ i .{~
=Y~~~~o p+c
F
~l9 \\°,I:
.lF ~F~PC~<
EXHIBIT C
LEGAL -ESCRIPTION
~T PORTION OF LOTS 18 AND 19 OF THE MOSS TRliCT, IN THE
C2TY OF SANTA M~fIICA~ IN THE COUNTY OF LOS ANGEL~Sr STATE OF
CALIP'ORNTA~ AS PER MAP RECORDED IN BOOK 36 PAGES 64 AND 65
OF MAPS~ IN ~ OPFICE OF THE COUNTY RECORDSR OF SAID COL'NTX
DESCRIBEB AS FOT,LOWS:
COM~NCING AT TIifi MOST WESTERLY CORNER OR IAT B OF SAID M03S
R'R1~CT;
THENCB NORTH 45 DEGREES 40 MINUTES 20 SECONpS EAST ALONG THE
N~RTXWESTERLY Z~SNS OF SAID IAT 35.01 FEEP;
THENCE SOUTHERLY AT,ONG A CIIRVE CONCAVE EASTERLY fiAVING A
RADIVS OF 31 FEBT AND TANGENT TO SAID NORTHWESTERLY LINE,
THROUGH A CENTRAL ANGLE OF L00 DEGREES 37 MINUI'GB 43 SECONDS
AN ARC DTS~`ANCE OF 54.45 FEET TO A POINT OF COM~OUNA CIIRVE,
A RADIAL LINE TO SAID POIh'T BEARS SOUTH 35 DEGREES 02
I:INUTES 37 SECONDS WESTp ~
THENCS SOU•rttEASTERLY ALONC A CURVE CONCAVE N022THEA3T£RTJY
HA.VI27G A RADIUS OF 337 FEET, xHROUGH A CENTRAL ANGLE OF 6
DEGREES 42 Mltvu'1'ES 41 SECONDS A?i ARC DISTANCE OF ~9.47 FEET
TO A P~INT IIS THE SOUTHEAST£RLX LINE QF SAIQ LOT B~ DISTANT
THEREON NORTH 45 U$GREES AO MINUTES 20 5&CONDS EAST 66.83
FEET fi220M THE MOST SOUTHERLY CORNfiR OF SATb LOT, AI,SO BEING
k POINT ON TliE NORTHWESTELRY LZNE OF LOT i9, B$ING TFiE TRIIE
POII3T OF BEGINNING j
THENCE CONTINIIING ALONG 6AID CURVE THROUGH A CEN`xRAL ANGLE
OF 7 DEGRESS 17 MINIITES 19 SECONDS, AN ARC LENGTFI OF 42.87
FEET TO TIiFs $OU'1'ttWES'i'~icLY PROLANGATION OF THE $OUTHEA.STERLY
LINB OF LOT I OF 6AZD MOSS TRACT, A RADIAI, LINE TO $AID
POINT BEBRS SOUTH 21 DBGREES D2 N.~NUTES 37 SECONDS WSST;
THENCE N012TH 45 DEGREES 40 MINUTES 20 SECONDS EAST AYANG
SAiD PROLONGATiON Q.SO FEET To THE NORTHEASTERLY LSNS OF IAT
18;
THENCE NORTH 44 DEGREES 16 MINUTES 40 SECONDS WE6T NANG THE _
NORTHEASTERLY LZNE OF LOT6 18 AftD 19~ 40.00 FSET TO THE MQST
NORTHERLY CORNER OF IAT i9;
THENCE SOUTH 45 DEGREES 4D MINUTES 2Q SECUNDS WEST~ ALONG '
THE NORTFiWESTERLY LINE OF IAT 19, 15.88 FEET TO THE TRUE
POINT OF SEGIYSNING.
CONTAZNS: 347 SQVARE FEET. ~S~,o~PS~,~~~E
\v' ~$g'Y vR'~
~} ~,~' k
EXHIBIT "C" • ~~g r
~ t~?o~j 1 1~
s ~ .
ra~` ~F CIS+Oi.~.=
5'2 '~JIA3A2GY'1J05zld3d 60:91 Fb. 80 ~3Q
EXHIBIT D
' , '- ' '.-~3 ~-_v„}.; ' ' ".'+-e.e"f~h~.5~:'+±es-..y=:.c~T
` __ _ - -- ' ~-.~^-Y^.: :" ~~' '.~S">iwa.:vr'#+"~i ~~h'~ ~ " ." ar
._ _ " a -"j ' .~.M'.._ -^
i f'~ . _
EXHIBIT °D° .
[THIS EXHIBIT WILL CONSIST OF THE PROJECT SITE AND
ARCHITECTURAL PLANS]
EXHIBIT E
EXHIBIT °E"
LEGAL DESCRIPTION
FOR STREET DEDICATION
An easement for street purposes over a portion of the northerly
corner of Lot A of Moss Tract in the City of Santa Monica, County
of Los Angeles, State of California, as per maps recorded in
Book 36, Pages 64 and 65, of Maps, in the County Recorder of said
County; described as follows:
A trianqular parcel approximately sixteen (16) square feet in area
bounded by straight tangent lines as follows:
Beginning at a point in the northeasterly line of said Lot A
located 4.00 feet southeasterly of the most northerly corner of
said Lot A, continuing northwesterly along said northeasterly line
to the most northerly corner of said Lot A; thence southwesterly
along the northwesterly line of said Lot A for a distance of 8.00
feet; thence northeasterly in a straight line to the, point of
beginning.
EXAIBIT F
CITY OF SANTA MONICA
GENERAL SERVICES OFF-SITE IMPROVEMENT
REQUIREMENTS FOR 1602 OCEAN AVENUE
APPROX.
ITEM ~ QUANTI7Y UNIT ITEM DESCRIPTION
1 I 1200 S.F. Remove and repiace i00% of sidewaik
with 4" thick P.C.C, on Ocean Avenue
`
, ~ along entire front of Project Site.
,
2 ~ ' EA. Furnish and install 12' high pffim Vee in
~ pubhc planter in front of Project Site on
~ Ocean Avenue.
3 2A00 ~ S.F Grind and pave to 20' from existing P.C C. ~
pavement (double yellow line) on Ocean
Avenue 1-1 /2" thick and replace traffic
signal detector loops.
~ ~
4 ~ EA. i Remove and replace curb ramp and
, sidewalk at Ocean and Colorado, and
construct such other intersecGon
improvements on the southwest corner as
reasonably dtrected by the City Engineer
and City Parking & Traffic Engineer to
II i l enhance vehicle movements Vavelling
i , eastbound from the Highway Access Road '
and to enhance pedestrian movements
across the intersection.
5 120 LF. Remove and replace P.G.C. cura and
gutter on Ocean Avenue alongside Pro~ect ~,
Sde
6 70 ~ LF. Remove and replace 4' wide sidewalk and ~,
' curb with 4" thick P.C.C, sidewalkand
~ type "A" curb on Hwy. 187 alongside =
' Project Sde.
7 2 EA Des~gn and instali wall mounted walkway =
lights on Colorado Avenue walkway
alongside Project S~te.
8 2 EA I improve existing street lights on median of ~
~ Hwy, t87 adjacent to Project Site by
I ~nstalfing double mast arm street lights
Exhibit "F"
, -.-
APPROX
ITEM QUANTITY UNIT ITEM DESCRIPTION
9 450 LF. l.andscape the Hwy. 187 median and
install automatic irrigation system for same
adjacent to Project Site.
10 1 LS. Pay $10,000 contribution to widen Santa
Monica Pier Bridge sidewalk by 2 feet.
1 t 1 EA. Relocate bus stop on the westem side of
the 1600 block of Ocean Avenue further to
the south to a location approved by the
City's Parlang and TrafBc Engineer, which
approvaf sha!{ not be unreasonabfy
withheld, in order to accommodate the
dnveway entrance to the Project from
Qcean Avenue.
12 1 EA Shift the location of the existing Vaffic
signal and street light on the southwest
corner of the intersection of Colorado and
Ocean Avenues to a point which
accommodates the improvements to the
puBlic right-of-way at this interseetion.
City's Director of General Services and
Parkmg and Traffic Engineer shall direct
Owner where to install the traffic signaf
equipment and street light at this location.
~w:3LDAI20.848
Exhibit "F"
EXHIBIT G
. - --- --^' +o~ev tta~~ ~~ naux+~ t~ FlSS7G1R7tsi 7D = i ASg1959 P.61
• ' ~ ' PROPOSED FXRISNES
FOR '
iHE NEU L095iER OEVELOPHENi
It is the intent of the architectural desian ~nd the desire cf the
ArchitectlDeveloPer to~construct a PioSect of the l~,fqhest qualitY,
to be comnensurate aith i.ts very speciel locdtion, to become a -
sS,gnature bnilding, and a landmark in £ts oun right.,
The roof materials to be ut#lized consists of a rad c1aY tile in
combxnation with patinated coppar on Yhe main domed roof and
vaulted dormers.
7he exterior waxx sw'faees a[?~ con~ist of a smooth plaster to,be
painted ahite for compatS.bzlity ufth the Lobster. and aill include
ceramic ti].ed ornamental applications.
The handrax7,s. adSoinf~g the first and second level terraees. a~ll
consist of round painted al.uafnum to wtthstand the ocean's Near.
They wSli 6e painted fn accent calar for added aRpeal. ~
7he exierior afndows e~7.1, cansist ai arch-tapped a~ndoqs on the
second level and divSded light aindous on the first flaar. These
uindows will be a~t!~+;oun, painted in an accent color co~atible
with the handrails. Ca~vas awninss uill be fnstalled ebove fSrst
floor aindows to provade sun protection and an additS.on splash of
visual stimulation in an attractive accent color. This feature
will aJ.so create a relationship, between the ¢xisti.ng Labster
buildin9 and the neu building.
7he exterior terrace materials Will censist of a high qualitr
paver stYle, either xn stane, ti].e, or decorative concrete.' It Ss
intended that the~ walking surfaees wzl), greatly enhance the
central courtYard and terraces along wfth the proPOSed
landscaping, which ut11 be contafned in planters Wxf.h buf~lt-in
seat£ng features. 7he landscapzn9 wi,il consisL of eatare trees
and veyetation. and a].ong uith the spaces in the courtYard dt[d
terraces. and the dramatic views, will provide an exciting vutdoor
envT~ronment to be enjoYed by the eniire community.
All exterior J.f,ghting and signage uill be consfistent in sLyle ead
co2or. and be coQpatible a~th the architectural theme.
The Lobster Nill be comp~ete7.Y renovated. It will Mave a new raof.
new exterior stucco,~new aindows and aanings, and freshlr pd5~nted
^Lobster• graphics Without variation froa tha or~g£na~.
Ali a6ave grade parkin9 areas will be soreened uith louvers to
prgvent v~sita~ bccess_ -
7he imerior finishes uill be completed br future tenants, but they
will 6s reyui.red to be competible aith the exterior desisn.
EXHIBIT "G"
EXHIBIT H
LEGAL DSSCRIYTION
THAT P~RTION QF LOT& 18~ 19 Af1Q THE SOUTHWESTERLY ONE FiALE
~F A 20 ~002' F1ID~ ALI~EY OF THE MOSS TRACT~ IN THE CITY OF
SANT.A MOI~7zCA, IN ~IIE COtINTY oF LOS ANGELES ~ STATE OF
CA7+IFORIZIA, AS PER MAP RECORDED IN SQOK 36 PAGES 64 AND 65
OF bIAPS, IN THE OFFICB OF THE CpUNTY RECORDER OF SAID C~UNTY
DESCRIBED AS POL7AWS:
COMMENCING AR THE MOST iPESTERLY CORNxK OF IAT 8 OF SAIA MDSS
TRACT~
THENCE NORTH 45 DBGREES 40 MINU2'ES 20 SECONDS EABT AIANG THE
NORTHW85TELRY LINS QF SAID IAT 35.01 FEET;
THENCE SOU~I•n~xLY ALONG A CffRVE CONCAVE EASTERLY HAVING A
RADIUS OF 31 FEET AND TANGENT TO SAZD NORTFIWES't•txLY LINE
THROUGH A CENTRAL ANGLE OF 100 DEGI2EES 37 MIN[STES 43 6ECONDS
AN ARC DISTANCE OF 54.45 FEET TO A POSNT OF CdMPOUND CURVE,
A RADIAL LINE TO SAID POINT HEARS SOUTH 35 DEGREES 02
MI23UTE5 37 SECONDS WEST;
THENCE SOUTHEASTERLY AIANG A CU'RVE CONCAVE NORTHEASTERLX
FiAVING A RADIUS OF 337 FEET, 'Z`F?ROUGH A CENTRAL ANGLE OF b
DEGREES 42 MINUTES 41 SECONDS AN ARC DISTANCE OF 39.47 PEET
TO A POINT IN TAE SOUTHEASTERLY LINE OF SAID LOT B~ ~ISTANT
THEREON NORTH 45 DfiGREES 40 MINUSSS 20 SECONDS EAST 66.83
FEET k'FtOM THE MOST SOUTHERT,Y CORNER OF SAID iAT~ BEING THE
TRUE POINT OF BEGINNING;
TFtENCE COI3TINUING ALONG SAID CURVE TE~20UGH A CENTRP.L ANGLE
OF 7 DEGREES 17 MINUl'ES i9 SECONDS, AN ARC LENGTH OF 42.87
FEET Tp THE SOUTHSVESTERLY PROIANGATION 6F TFiB SOUTHSASTBRLY
LINE OF SAID TAT 1, A RADIAL LINE TO SAID POTNT SSAEtS SOIITH
21 DEGREES 02 MINu'tES 37 SECOIvDS WEST;
THENCE NORTB 45 DEGREES 40 N',INUTES 20 SECONDS EAST ALONG
SAID PROLONGATION 30.50 FEET TO THB CENTERLINE OF' SAID 20
FOOT WIDE ALLEY~
THENCE NORTH 44 DEGREES i6 MINUTES 40 SECONDS {9EST A7A1VG THE ~
CENTERLINE OF SAXD ALLEY, 40.00 fiEET TO THE SOUTHEASTERLY
LINE QF LOT 8;
THENCE SOUTH 45 DEGREES 40 MINUTES 20 SECOIIDS WEST AIANG THE -_
SOUTHEASTELY LINE OF SAID LOT B, 25.88 FEET TO THE TRUE
POINT OF BEGINNING.
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CONTAINS: 747 SQUARE FEET. ~r~~ y~~'Zrp`FpOP~
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EXAIBIT "H"
E d -9NI13h2C15-NOS~`'J3d Bd:9i E5, 80 ~3Q
CA:BAR:atty\muni\laws\kilbane.ord
City Council Meeting 2-22-94 Santa Monica, California
ORDINANCE NUMBER 1~z8
(City Council series)
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF SANTA MONICA
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN
JOHN B. RILBANE 6c ASSOCIATES~ INC. AND
MYRON L. NATHAN AND LORRAINE NATHAN
AND
THE CITY OF SANTA MONICA
TI-IE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES
ORDAIN AS FOLLOWS:
SECTION 1. The Development Agreement attached hereto
as Exhibit "A" and incorporated herein by reference between John
B. Kilbane & Associates, Inc. and Myron L. Nathan and Lorraine
Nathan, (collectively, "Owner") on the one hand, and the City of
Santa Monica, a municipal corporation, on the other hand, is
hereby approved.
SECTION 2. Each and every term and condition of the
Development Agreement approved in Section 1 of this ordinance
shall be and is made a part of the Santa Monica Municipal Code
and any appendices thereto. The City Council of the City of
Santa Monica finds that public necessity, public convenience, and
1
general welfare require that any provision of the Santa Monica
Municipal Code or appendices thereto inconsistent with the
provisions of this Development Agreement, to the extent of such
inconsistencies and no further, be repealed or modified to that
extent necessary to make fully effective trie provisions of this
Development Agreement.
SECTION 3. Any provision of the Santa Monica Municipal
Code or appendices thereto inconsistent with the provision of
this Ordinance, to the extent of such inconsistencies and no
further, is hereby repealed or modified to that extent necessary
to give full force and effect to the provision of this Ordinance.
SECTION 4. If any section, subsection, sentence,
clause, or phrase of this Ordinance is for any reason held to be
invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision shall not render invalid
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 this Ordinance would be subsequently declared
invalid or unconstitutional.
2
SECTION 5. The Mayor shall sign and the City Clerk
shall attest to the passage of this Ordinance. The City Clerk
shall cause the same to be published once in the official
newspaper within 15 days after its adoption. This Ordinance
shall become effective 30 days from its adoption.
APPROVED AS TO FORM:
~~~
J SEPH WRENCE
A tinq City Attorney
3
Adopted and approved tlus 22nd day of February. 1994
~l ,,~/~
M~
I hereby cerufy that the foregomg Ordmance No 1728 (CCS) was duly and regulazly
introduced and adopted at a meenng of the Ciry Council on the 22nd day of February, 1994
by the followmg Council vote
Ayes. Councilmembers: Abdo, Greenberg, Holbrook, Rosenstein, Vazquez
Noes: Councilmembers• Genser, Olsen
Abstam Councilmembers None
Absent Councilmembers: None
ATTEST.
'"~ i ' ~' /~%~
/~/~ %~i7/nv ~ ;~/8, ~i~-B;s-a^
v .~.i .i - ~ -
City Clerk
For Contract Review See
Contract # 7270 (CCS)
~~ 3~j ~ ~
~~~