sr-041409-8a~~~ ,
~;tyof City Council Report
Santa rlonica°
City Council Meeting: Api•i1 14, 2009
Agenda Item: 8A
To: Mayor and City Council
From: Andy Agle, Director, Housing and Economic Development
Subject: Approval of Bayside District Corporation Amended and Restated Services
Agreement and Amended By-Laws
Recommended Action
Staff recommends that the City Council authorize the City Manager to execute the
Amended and Restated Services Agreement with the Bayside District Corporation
(BDC) and approve the BDC's Third Amended and Restated By-Laws.
Executive Summary
Staff is presenting to Council an Amended and Restated Services Agreement for
approval, which reflects the new roles and responsibilities to be delegated to the BDC
following the establishment of the Downtown Santa Monica Property Based
Assessment District (PBAD). Modifications to the. Agreement include updated
indemnification provisions, description of the base-level of services to be provided by
the City, and standards relating to the functions and oversight of private contractors. In
addition, Council. is asked to approve $DC's Third Amended and Restated By-Laws
clarifying eligibility of members to serve on the BDC board. The Restated Services
Agreement and modified By-Laws were approved by the BDC Board of Directors on
March 26, 2009.
Background
On March 25; 2008, the. Council approved the Bayside Downtown Management
Framework which described the method for assessing property owners within the
Downtown area, for using the estimated $3.5 million to fund enhanced services,
including enhanced maintenance and ambassador service, and to reorganize BDC's
board. of directors. On July 24, 2008, Council established the Property-Based
Assessment District by Resolution No. 10336.
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On January 13, 2009, Council approved amended by-laws for the BDC, and appointed
six members to serve on the Board. In addition, Council provided direction to staff on
terms and conditions to include in an Amended and Restated Services Agreement with
the BDC.
The Amended and Restated Services Agreement enumerates additional BDC
responsibilities to be funded through the Property-Based Assessment District (PBAD),
In coordination with City staff, these additional responsibilities include BDC oversight of
vendor contracts to provide enhanced maintenance of public areas, Ambassador
services, and homeless outreach.
Upon execution of the Amended and Restated Services Agreement, the City will
transfer the PBAD funds and Mall Assessments to the BDC and .the BDC shall begin
implementation of its enhanced services and programs
Discussion
As with the previous Services Agreement last amended on October 26, 2004, the
Amended and Restated Services Agreement retains BDC responsibilities to provide
advice and recommendations to the City regarding long term planning and development
strategies; to assist new businesses by providing information; to advise the City on
operational issues related to the Downtown; to coordinate with the City on filming, photo
shoots and special events and collect Film and Special Event Charges, as approved by
the City; to manage the street performer program; and to serve as a liaison to the City
and other governmental entities.
The significant modifications in the proposed Amended and Restated Services
Agreement from the previous Agreement are summarized as follows:
TERM
The initial term of this Agreement shall be for a period of ten (10) years and may
be renewed for one additional ten (10) year period provided that a majority of
property owners. vote in favor of an extension of the PBAD.
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ROLES AND RESPONSIBILITIES
• BDC shall prepare annually a Work Plan and Budget for submittal to the City
Manager in coordination with the City's Community Maintenance Department.
The annual work plan shall describe in detail the services to be provided by the
City and the enhanced services for the upcoming year to be provided by BDC.
• BDC shall manage an ambassador program to provide information to visitors
about activities, sites and points of interest within the Downtown, and to monitor
public facilities within the Downtown: Ambassadors shall not be portrayed as
representatives of any law enforcement agency of the City, and shall not assume
any law enforcement responsibilities.
• BDC shall ensure that its Ambassador Program shall comply with the. City's
Living Wage Ordinance and maintenance/custodial contractors shall adhere to
the same standards of sustainable maintenance practices as are followed by City
maintenance.
• City shall be obligated to continue to provide maintenance-of-effort and base
level services as described in Exhibit C of the Agreement.
PAYMENT
• City shall pay to the BDC.aII funds received from the PBAD, Mall Maintenance
Charge, and Central Business District less an administrative charge to be
retained by the City to cover City's costs in administering and collecting the
assessments. The Administrative Charges Schedule shall be:
• PBAD
The City will retain an administrative charge of $65.02 per parcel, to be adjusted
annually by the Consumer Price Index. The annual adjustment will be no less
than 2%, and no greater than 5%. This rate was established based upon the cost.
of service/charge analysis of an independent consultant. This will generate $28,
349. .
• Mall Maintenance Charge
The City will retain an annual administrative charge of 1.27% of assessments
collected. This rate was established based upon the cost of service/charge
analysis of an independent consultant.The Administration fee is estimated to
generate $14,344.
• Central Business District Business Improvement Area (CBD)
The City will: retain an administrative charge in an amount equal to five (5%)
percent, or approximately $10,000, until the CBD is terminated.
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INSURANCE AND INDEMNIFICATION
• BDC's commercial liability insurance limits have been raised to reflect its
expanded roles and responsibilities under the Agreement.
• BDC shall indemnify and defend the City and its insurance will be primary in
connection with indemnified claims.
TERMINATION
• Either party may terminate this Agreement immediately if the Santa Monica
PBAD is disestablished pursuant to applicable state law, or may terminate with
cause after proper notice and cure periods. BDC may terminate with or without
cause with six months written notice.
BY-LAWS
• BDC shall amend its By-laws to provide that Directors be current in their payment
of special or general assessments, fees or licenses imposed within the Bayside
District.
Council is also asked to approve the addition of this provision to the BDC's Third
Amended and Restated By-Laws.
Financial Impacts & Budget Actions
Approval of BDC's Amended and Restated Services Agreement and Amended By-Laws
has no financial impact on the City, as the City will recover administration charges for
the collection and distribution of the property .and business based assessments,
estimated to total $52,693.
Prepared by:
Elana Buegoff, Senior Development Analyst
A~Agle, Director/
Housing and Econ evelopment
Forwarded to Council:
~~r
P. nt Ewell
Cit ahager
Attachments:
Attachment A: Amended and Restated Services Agreement
Attachment B: Third Amended and Restated By-Laws
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City Council Meeting: April 14, 2009
Agenda Item: ,8-A
To: Mayor and City Council
From: Andy Agle, Director of Housing and Economic Development
Subject: Revised Language to Section 14 of the Bayside District Corporation
Amended and Restated Services Agreement, and Revised Language to
Article 3, Section 2 of the Third Amended and Restated By-Laws
Recommended Action
Staff recommends that the City Council include the attached revised Section 14.1 (b) in
its approval of the Bayside District Corporation (BDC) Amended and Restated Services
Agreement as well as revised Section 2 of Article 3 language in its approval of the
BDC's Third Amended and Restated By-Laws.
Discussion
The intent of the revisions to the Amended and Restated Services Agreement and
Bylaws is that all Directors be current in their payment of special and general
assessments. The Amended and Restated Services Agreement and By-Laws in the
original Council packet .inadvertently referred to only property owners. This version of
the Amended and Restated Services Agreement and Third Amended and Restated By-
laws addresses the eligibility of representatives of both businesses and property
owners to serve as Directors.
Financial Impacts & Budget Actions
The proposed revision has no financial impact on the City.
Prepared by:
Elana Buegoff, Senior Development Analyst
Forwarded to Council:
Andy Agle, Director P.
Housing and Economic lopment Ci
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Attachment:
Attachment A: Revised Section 14.1 (b) of the Amended and Restated Services
Agreement and revised Section 2 of the Third Amended and Restated
By-Laws
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Attachment A
CHANGE TO AMENDED AND RESTATED BY-LAWS
Section 2. Number and Qualification of Directors
(a) The authorized number of Directors shall be thirteen (13) until
changed by amendment of the Articles or by a Bylaw..
(b) A person shall not qualify nor remain as a Director, if that person is
the owner of nrooertv or the owner of a business or an agent, representative, employee
or volunteer of+"e c....,,, ^' ^~^^°~+~• ^:- t"° ^ .,,., ' •+~ anv such owner.
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resoonsible for~and not current in payment of special or general benefit assessments;
fees or licenses imposed on such owner's property or business, including assessments,
fees or licenses imposed on property within any of (i) the Downtown Santa Monica
Property Based Assessment District established by the City of Santa Monica pursuant
to Resolution No. 10336 (CCS) on July 24, 2008, as the same may be amended, (ii) the
Third Street Promenade and Downtown District Operation and Maintenance Area
located within asub-area of the "Bayside District" established by the City of Santa
Monica pursuant to Ordinance No. 1382 (CCS) on August 26, 1986, as now and as the
same may be amended, andJor (iii) the Central Business District Business Improvement
Area established by the City of Santa Monica pursuant to Ordinance No. 725 (CCS), as
now and as the same may be amended.
(c) Any sitting Director who fails to remain qualified to serve as a
Director under the provisions of Subsection 2(b) immediately above (herein, an
"Unqualified Director") shall be removed from office by the Board if, within thirty (30)
days after receipt of notice from the Corporation of the. circumstance constituting failure
to qualify under Subsection 2(b), such failure is not cured. After expiration of said thirty
(30) day period without cure, the Unqualified Director shall be given fifteen (15) days
prior notice of his or her removal from the Board and the reasons therefor and an
opportunity for the Unqualified Directorto be heard by the Board, orally or in writing, not
less than five (5) days before the effective date of such removal.
CHANGE TO AMENDED AND RESTATED SERVICES AGREEMENT
Section 14.1 (b) of the services agreement that should read as follows:
(b) As a condition precedent to the effectiveness of this Agreement, BDC shall
amend its By-laws to provide thata person shall not qualify nor remain as a Director, if
that person is the owner of property or the owner of a business. or an agent,
representative, employee or volunteer of ##e anv such owner ^c ^~^^°.«,• ^~ +h° ^,••^°• ^f
y responsible for and not current in payment of special or general benefit
assessments, fees or licenses imposed within the Bayside or Downtown.
Attachment A
AMENDED AND RESTATED SERVICES AGREEMENT
by and between
CITY OF SANTA MONICA
a municipal corporation
and
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SI S'y
AMENDED AND RESTATED SERVICES AGREEMENT
This Amended and Restated Services Agreement ("Amended and Restated Agreement"
or "Agreement"), entered into this day of , 2009, by and between the CITY
OF SANTA MONICA, a municipal corporation ("City"), and the BAYSIDE DISTRICT
CORPORATION, anon-profit public benefit corporation ("BDC"), is made with reference to the
following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now being
conducted under the Statutes of the. State of California and the Charter of the City.
B. The Bayside District Corporation is anon-profit, public benefit corporation duly
organized and validly-existing under the laws of the State of California.
C. On December 3, 2004 the-City and BDC entered into a Services Agreement
approved by the City Council as Contract No. 8406 (CCS) (the "Prior Agreement") for the
purpose of setting forth the role and obligations of the BDC in the administration of certain
functions and programs in the City's downtown business area. This Agreement is intended to
supersede the Prior Agreement. Accordingly, upon the commencement of the term of this
Agreement, the Prior Agreement shall terminate and be of no further force or effect.
D. The purpose of this Agreement is to produce a strong and vibrant pedestrian-
oriented downtown for the benefit of the City's residents, customers and visitors with the goal to
contribute to the City's economic vitality and create a community resource to enhance the quality
of life for Santa Monica residents and visitors. Toward that end, the City has invested public
monies in streetscape and parking improvements, has established assessment districts to fund
such improvements and the maintenance thereof, and has adopted various revitalization plans
such as the Third Street Mall Specific Plan on August 12, 1986, as amended by the Bayside _
District Specific Plan on January 23, 1996 ("Bayside District Specific Plan"), and the Downtown
Urban Design Plan adopted by City Council on July 22, 1997.
E. Since its inception, BDC has identified ways to improve and expand the services
and programs it provides to the community. On March 25, 2008, the City Council of the City of
Santa Monica approved a Downtown Management Plan (the "Management Plan") prepared by
BDC following a-two year process, which included public input. The Plan was the basis for an
engineer's report ("Engineer's Report") setting forth the mechanism for assessing property
owners to raise funds to provide additional and enhanced services in Downtown Santa Monica as
defined in Section l.l.b of this Agreement. On July 24, 2008, a majority vote in favor of the
proposed assessment was confirmed. City Council Resolution No. 10336 (CCS) was adopted,
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approving the Plan and Engineer's Report ordering formation of a property and business
assessment district in Downtown Santa Monica, and authorizing the levy and placement of the
assessments on the property tax rolls each year.
F. The BDC has expertise in planning, implementing, sustaining and managing the
revitalization goals of the City and the City desires to use the expertise and services of the BDC
to develop, implement and maintain various programs for the continued revitalization of the
Bayside and Downtown Santa Monica. In furtherance of the goals recited above, the City
desires to use the expertise and services of the BDC to develop, implement, and maintain various
programs for the enhanced maintenance, marketing and promotion to support the economic
vitality, and provide for the public benefit of the Bayside District and Downtown Santa Monica,
as more specifically defined in Section 1.1(a) and (b).
G. The City further recognizes that in addition to the administration of such duties
outlined above, the scope of BDC's duties may be expanded to cover other duties and activities
such as developing, maintaining, and revitalizing the Downtown as may be funded by the City or
other agencies through various business improvement areas, assessment districts, or other
sources of revenue, and that the BDC may accept such funding or contracts, provided that the
purpose of these funds or contracts falls within the general purpose of the continued
revitalization and promotion of the Downtown.
H. City and BDC recognize and acknowledge that the Bayside and Downtown are
valuable assets of the City which should be developed, managed and maintained as a public
resource. Accordingly, the City desires to assign certain responsibilities to BDC as set forth in
this Agreement, and BDC desires to accept such responsibilities, upon the terms and conditions
set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the parties as follows:
AGREEMENT
SECTION 1. DEFINITIONS.
1.1. The following words, terms and phrases shall have the following meaning in this
Agreement:
a. "Bayside" and "Bayside District" mean and refer to that certain area or District as
shown on the map attached hereto as Exhibit "A" and incorporated herein by reference.
b. "Downtown" and "Downtown Santa Monica" mean and refer to that certain area
shown on Exhibit "B" and incorporated herein by reference.
a "The Downtown Urban Design Plan" means and refers to that certain plan
adopted on July 22, 199'7, by City Council, which is designed to create a strong and vibrant
downtown as identified in both the Bayside Specific Plan and the City's General Plan.
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d. "Fiscal Year" means and refers to the operating year commencing on July 1 and
ending on June 30.
e. "Leasehold Space" and "Licensed Space" means and refers to those portions of
the City-owned public parking structures and Public Areas of the Bayside which are leased or
licensed by City to third parties.
f "Mall Maintenance Fee" means and refers to the Third Street Promenade and
Downtown District Operation and Maintenance Assessment Fee on business operators located
within asub-area of the Bayside District as shown on Exhibit A, described as having the
following boundaries: the mid-line of Wilshire Boulevard on the north, the mid-line of
Broadway on the south, Fourth Court on the east and Second Court on the west, such boundaries
having been established by adoption of Ordinance No. 1382 (CCS) on August 26, 1986, as
amended by Resolution No. 7488 (CCS) on August 11, 1987, and Resolution No. 8026 (CCS) on
May 22, 1990.
g. "Management Plan" means and refers to the plan prepared by BDC and adopted
by the City Council on March 26, 2008, setting forth the following: (i) details of a new funding
source for BDC activities based on property assessments; (ii) a new structure for governance of
BDC based on half of BDC Board members being appointed by the City Council and the
remainder being elected by property and business owners in the District; (iii)details of new
programs to be funded with additional financial resources generated by the property based
assessments.
h. "Public Areas" means and refers to those portions of the Downtown located
within the physical boundaries thereof which are controlled and operated by the City and made
available for the general use, convenience or benefit of the public including, but not limited to,
public rights of way, access roads, driveways, alleyways, public restrooms, public parking sites,
decking, stairways, and other similar areas.
i. "Santa Monica PBAD" or "Santa Monica Property Based Assessment District"
means and refers to that certain Property Based Assessment District created by City Council
Resolution No. 10336 (CCS), adopted July 24, 2008, and as shown oh Exhibit B.
j. "The Specific Plan" means and refers to that certain plan identified more
specifically as the "Third Street Mall Specific Plan" adopted on August 12, 1986 by the City
Council by Resolution Number 7284 (CCS), as amended by the Bayside District Specific Plan
on January 23, 1996.
SECTION 2. TERM.
The initial term of this Agreement shall be for a period of ten (10) years ("Initial Term"),
commencing upon the date that this Agreement is fully executed. The term of this Agreement
may be renewed. for one additional ten (10) year period provided that there is both: (i) a majority
vote, based on the majority of ballots returned, as weighted by assessments to be paid, in favor of
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such extension by property owners located within the Santa Monica PBAD'and (ii) City Council
approval.
SECTION 3. ROLES AND RESPONSIBILITIES.
3.1. BDC Roles and Responsibilities.
The BDC shall be dedicated to promoting the continued economic revitalization of the
Downtown through the sponsorship, support and production of programs, projects and services
that benefit Santa Monica residents, Downtown merchants, property owners, customers and
visitors. Without limiting the generality of the foregoing, and to the extent these duties are
funded by the various business improvement areas, contracts, and other sources of funding
received, the BDC shall be responsible for:
a. Organizing, advising, and/or conducting marketing and advertising campaigns
and concierge programs for the benefit of the Downtown;
b. Organizing, advising, and/or conducting promotioris and special events that amact
and benefit local residents, customers, and visitors to the Downtown;
c. Assisting the City by (i) coordinating the delivery of City-funded maintenance
equal in commitmenfto the level of service described in the matrix attached hereto as Exhibit C
and provided by the City as of the date of execution of this Agreement for the repair and service
of the streetscape, public areas and other public improvements within the Downtown, and (ii)
providing enhanced levels of services, over and above what the City provides as described in
clause (i) above, decided after consultation with the City, to be funded through the assessment
revenues generated from the Mall Maintenance Fee and the Santa Monica PBAD.
d. Providing advice and recommendations to the City regarding long-term planning
and zoning issues, preferred7etail mix, streetscape and capital improvement projects, public
parking projects, signage, specific discretionary planning and zoning cases, and developmental
strategies in order to enhance the economic vitality of the Downtown:
e. Assisting new businesses by providing real estate and other economic
information, identifying sites, and providing information about the development process.
£ Providing advice to the City about the management of a Downtown vending cart
license program;
g. Advising the City on operational issues related to the Downtown upon City's
request; from time to time;
h. Organizing and facilitating filming and special events in the Downtown;
Organizing and managing a street performer monitoring program in the Bayside;
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j. Advising merchants, property owners, and others having a business interest in the
Downtown on common matters of interest;
k. Serving as a liaison with City on behalf of merchants, property owners, and the
general public on issues affecting the continued vitality of the Downtown;
I. Providing information and cooperating with other local governments and
professional organizations regarding activities or current operations of the Downtown;
m. Upon request of merchants, property owners, or residents within the Downtown;
making recommendations to the City about additional services needed in the Downtown and
methods for funding, that are not provided for by the assessment districts and business
improvement areas in place as of the date of this contract; and
n. Administering or providing services and activities for the Downtown as set forth
in the approved Work Plan pursuant to Section 9.1, below.
o. Managing an ambassador program that deploys resources within Downtown Santa
Monica to provide information to visitors about activities, sites and points of interest within the
Downtown, and to monitor public facilities within the Downtown, provided the ambassadors are
clearly not identified as representatives of the City or any law enforcement agency of the City,
and do not assume any law enforcement responsibilities.
The expected level of service to be provided within the Bayside and Downtown will be
defined annually in the Work Plan as further described in Section 9, below. The BDC shall have
no obligation to provide services to any area outside of the Downtown area except as specifically
approved by the City and BDC in writing.
3.2. Administration of Central Business District Business Improvement Area.
a. Ordinance No. 725 (CCS), amended by Ordinance No. 1228, established the
Downtown Parking and Business Improvement Area, also known as the Central Business
District Business Improvement Area, to provide for the levy of a special assessment on retail
businesses for the general promotion of retail trade activities in the area. The BDC has
undertaken responsibility for the general promotion of retail trade activities in the Central
Business District Business ImprovemenYArea.
b. Until elimination of the Central Business District Business Improvement Area as
contemplated by the Management Plan, Section VI, the BDC shall continue to undertake
responsibility for the general promotion of retail trade activities as specified by Section 3 of
Ordinance No. 725 (CCS), and amended by Ordinance No. 1228 These promotional activities
and their related costs shall be segregated in the Work Plan from other activities of the BDC.
c. The BDC agrees that all funds received from the City for implementation of this
subsection shall be subjecfto separate accounting and shall comply with the requirements of
Sections 4 and 14 of this Agreement. All funds received pursuant to this Section shall be
exclusively expended for the general promotion of retail trade activities which benefit the entire
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Downtown, save and except the sum of up to 20% thereof, which may be retained by the BDC
for administrative overhead. The BDC shall be liable to the City for any and all expenditure of
funds contrary to this Agreement.
3.3 The City's Roles and Responsibilities.
The City shall support the BDC in its stated role and responsibilities, and shall be
responsible for:
a. Delivery of City-funded maintenance equal in commitment to the level of service
described in the matrix attached hereto as Exhibit C, and other municipal services to the extent
that funds are available to the City;
b. Funding of approved projects and programs for the Downtown, in such amounts
as the City in it sole discretion determines necessary and appropriate;
c. Design, construction and management of capital projects, which shall be the
subject of consultation with BDC to the extent the same may affect the responsibilities of BDC
under this Agreement;.
d. Processing and approving permits as specified by applicable law;
e. In its role as property manager, negotiating and. administering the leases and
licenses for the City's Leasehold and Licensed Space within the Downtown;
£ Seeking advice from the BDC on those items identified in Section 3.1 above so
that the City may avail itself of the knowledge and expertise of BDC in its advisory role on
behalf of the Downtown;
g. Provide written notification to BDC when applications are sought for various
private activities within the Downtown, including, but not limited to filming; special events, and
for projects requiring Planning Commission review, Architectural Review Board applications,
and certain construction-related projects which may have an impact on the Downtown, such as
construction for exterior work, public works ,and other street use projects or activities; and.
h. Payment to the BDC of the following funds:
(i) all funds received pursuant to adoption of Resolution No. 10336 (CCS)
on July 24, 2008, establishing the Downtown Sarita Monica Property
Based Assessment District("PBAD") and authorizing levy of property-
based assessments, after deduction of an administrative fee to be retained
by the City in an amount equal to $65.02 per parcel, increased annually by
the CPI for the Los Angeles-Long Beach area, subject to the requirement
that the CPI adjustment not exceed 5% nor be lower than 2% in any one
year, to cover City's costs in administering and collecting the assessments.
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(ii) all funds received from the Mall Maintenance Fee, originally established
by Ordinance No. 1382 (CCS) on August 26, 1986, less an administrative
fee to be retained by the City in an amount equal to 1.27% of the Mall
Maintenance Fee collected to cover City's costs in administering and
collecting the Mall Maintenance Fee.
(iii) all funds received from the Central Business District. Business
Improvement Area pursuant to Ordinance No. 725 (CCS), as amended by
Ordinance No. 1228, less an administrative fee to be retained by the City
in an amount equal to five percent (5%) which shall be retained by City to
cover costs of collection and administration.
(iv) City will disburse to the BDC all funds received and accounted for as of
December 31, February 28; May 3.1 and August 31 of each year, within 21
days after the aforementioned dates,_for the PBAD assessment, Mall
Maintenance Fee and Central Business District Business Improvement
Area fee, less the applicable administrative fee, and less any
reimbursements that may have been made to assessees or fee payers to
correct incorrect assessments. The City will include with the
disbursements a report that clearly explains how much was collected for
each fee, the amount of the administrative fee and reimbursements that
were deducted from the disbursement, for the benefit of BDC's budget
planning and program administration.
SECTION 4. ADMINISTRATION OF FUNDS
The BDC agrees that all funds received from the City for implementation of this
Agreement shall comply with the requirements of Section 14 of this Agreement. The BDC shall
render a full and accurate accounting for the expenditures annually. The BDC shall be liable to
and shall reimburse the City for any and all expenditure of funds contrary to this Agreement.
SECTION 5. COMMUNITY PLANS AND CONSTRUCTION PROJECTS.
5.1. Community Plans .
The BDC may gather public input and make recommendations to the City regarding land use,
circulation, design and other policies and community plans that affect the Downtown.
5.2. Capital Improvement Projects.
The BDC may make recommendations to the City for capital improvements to be
constructed in the Downtown.
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SECTION 6. MAINTENANCE AND MANAGEMENT OF PUBLIC AREAS.
6.1. General Maintenance Matters.
The BDC shall report to the City any maintenance and repair problems falling within the
City's jurisdiction, which BDC becomes aware of or observes. Effective upon execution of this
Agreement, the City will continue to provide maintenance-of--effort and base level services equal
in commitment level to the services provided by the City as of the date of execution of this
Agreement for the repair and service of the streetscape, public areas and other public
improvements within the Downtown as described in Exhibit C, and to the extent that funds are
available to the City. The City shall undertake any regular maintenance and repair work it deems
necessary at its discretion. The City shall undertake to advise the BDC, where possible, of any
non-routine maintenance projects so that the BDC may assist in the coordination of such projects
with the day-to-day operation of the Downtown.
The BDC shall directly provide supplemental and enhanced maintenance services and
programs throughout the Downtown to the extent funds are available through Mall Maintenance
Fees and property-based assessments for the purposes described in section 3.1 of this Agreement.
BDC and City shall coordinate such additional maintenance services and the City base level
services to avoid operational conflicts. The BDC may retain vendors or contractors for such
supplemental maintenance services. The BDC and City staff will cooperate to prepare an annual
plan that will describe in detail the base and enhanced services for the upcoming year. BDC and
City will meet and confer on a regular basis to ensure that all services are being delivered in a
coordinated manner and in accordance with high standards for cleanliness and efficiency.
BDC shall ensure that its contractors adhere to the same standards of sustainable
maintenance practices as are followed by City maintenance.
6.2. Security.
The BDC may advise the City with respect to any safety or security issues within the
Downtown. The BDC may directly provide street performer monitors, ambassador services and
concierge services for the benefit of Downtown visitors using the revenues generated by the Mall
Maintenance Fees and property-based assessments described herein, or from other revenue
sources for these purposes. City and BDC shall coordinate such street performer monitors;
ambassador and concierge services with City public safety services to avoid operational
conflicts.
During special events, the BDC may also hire personnel to serve as ushers or monitors
with prior written approval of the Police Department of City. Such ushers or monitors may be in
uniform but shall not carry weapons of any type, and shall not hold themselves out to be agents
or employees of the City, nor wear uniforms which might give such impression.
6.3. Management.
BDC may assist in and make recommendations to City for the day-to-day management,
operation and programming of the Public Areas.
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SECTION 7. MANAGEMENT OF LEASEHOLD AND LICENSED SPACE.
7.1. Management of Leasehold Space and Licensed Space.
BDC may advise the City regarding uses and operations of prospective or existing tenant
orlicensees in Leasehold Space or License Space. All recommendations from BDC to the City
on leases and licenses shall follow the guidelines set forth in the Specific Plan, the Downtown
Urban Design Plan, and Leasing Guidelines approved by the City. Upon finalization of any
agreement, the BDC shall advise and assist the tenant and the City with any future leasing issues
as they arise.
7.2. General Duties and Responsibilities Regarding Leases and Licenses.
BDC may advise the City regarding recruitment of new tenants for any available
Leasehold Space or License Space within Bayside. BDC may assist the City on an as-needed
basis in the monitoring of conditions of the lease or license. As requested by the City, BDC may
serve as a liaison between the City and the tenants and licensees with respect to resolution of
disputes.
7.3. Lease and License Execution.
City shall review with BDC the uses, terms and conditions of any new or amended lease
or license for any City-owned property or Public Areas within the Downtown. All leases and
licenses shall be consistent with the most current Leasing Guidelines amended by the City
Council on June 22, 2008, as they now exist, or as amended in the future. After review, all such
leases and licenses shall be entered into by the City pursuant to the execution procedures set
forth in Santa Monica Municipal Code §2.32.030 et seq.
7.4. Management of Leases and Licenses.
The City shall maintain the original signed leases and licenses in the Clerk's Office with
copies forwarded to the BDC.
7.5. Enforcement.
City shall have complete authority and responsibility in the enforcement of al] leases and
licenses in the Downtown. Such enforcement shall include, but not be limited to, collection of
rental amounts owed to the City, enforcement of other lease or license requirements, declarations
of any default, termination, and bringing or defending any litigation arising from a lease or
license dispute.
7.6. Rules and Regulations.
From time to time, the BDC may recommend to the City such rules and regulations or
such revisions to Leasing Guidelines with respect to the Leasehold Space and Licensed Space as
will provide for the orderly operation of the Bayside and Downtown Santa Monica consistent
with the Work Plan, Specific Plan, and this Agreement, and which will provide for a harmonious
relationship between tenants, licensees, City, and. BDC.
-9-
7.7. BDC Not Broker/Agent.
It is specifically understood and agreed that BDC is not acting as a real estate broker or
agent. BDC's relationship with City is that of an advisor, planner, and facilitator, and not that of
a property manager or any other parry who performs any service for which a real estate broker's
or salesperson's license is required pursuant to the California Business and Professions Code.
7.8. Other Structures Constructed in Public Areas.
Neither the BDC nor any private person or entity shall be entitled to erect structures or
improvements on the Public Areas with the exception of tenant or licensee improvements
authorized pursuant to a City approved lease or license agreement pertaining to the Leasehold
Space or Licensed Space. No alterations may be made to any City-constructed Leasehold
Spaces, including the retail pavilion structures on the Third Street Promenade without City's
prior written approval. Nothing in this Section prohibits BDC from placing temporary
installations or decorations consistent with the roles and responsibilities of the BDC under this
Agreement, provided, however, that permits required under the Santa Monica Municipal Code
first shall be obtained as applicable.
7.9. Vending Cart Operations.
BDC may advise and assist City in the management of the vending cart operations in the
Downtown, including vending cart operations authorized on the Third Street Promenade and
other Downtown vending cart activities authorized under S.M.M.C. Section 6.36.070, vending
cart leasing guidelines, if any, and as amended, and agreements approved by the City. City may,
at its sole discretion, authorize BDC to directly manage such vending cart operations as the
designated Administrator.
7.10. Outdoor Dining License Agreements.
The City, through approved License Agreements, may in its sole discretion allow
licensees to operate outdoor dining areas in the public right-of--way at certain locations within the
Downtown in accordance with the Bayside District Specific Plan and other City ordinances.
City shall advise BDC of these outdoor license agreements and seek BDC's input. At City's
request, BDC may monitor performance of outdoor dining in accordance with the License
Agreement.
SECTION 8. ADVERTISING, PROMOTION, ENTERTAINMENT, AND SPECIAL
EVENTS.
8.1. BDC Programs.
The BDC shall be responsible for development and implementation of various
advertising, promotional, entertainment, and special event programs which will enhance the
pedestrian enjoyment, commercial operation and aesthetic quality of the Downtown, as well as
support and enhance the Downtown's commercial, retail and entertainment qualities. BDC may
-10-
manage temporary holiday or special events and installations subject to compliance with the
permit requirements of applicable law.
8.2. Filming and Special Events.
BDC shall facilitate filming and special event activities in the Downtown. Such filming
and special event activities shall be in accordance with the permit requirements of applicable
law, the City's Community Event Management Plan or other such special event regulations as
the City may, from time to time, adopt and shall not be amended without prior written approval
of City. The BDC shall recommend a schedule of commercially reasonable fees and charges for
filming and special events, subject to approval by the City. The City shall consult and coordinate
with BDC prior to selecting the Downtown as a venue for a special event.
8.3. Signs and Banners.
The BDC shall also have the right and authority to display signs or banners or other
similar items, as provided in the Specific Plan and in compliance with applicable law, to
advertise promotional programs or otherwise generally to promote the Downtown. Any such
signs or banners shall be subject to all applicable City ordinances, laws, rules and regulations.
The BDC shall have authority to approve all banners installed on banner lines within the
Bayside.
8.4. Street Performers.
BDC shall advise and make recommendations to City regarding street performers in the
Bayside. Such advice and recommendations may pertain to the promulgation of regulations
governing time, place and manner restrictions for street performers, the administration of street
performer regulatory programs, the administration of street performer monitor programs, and
enforcement of such street performer regulations that the City may, from time to time, adopt.
SECTION 9. REPORTING REQUIREMENTS.
9.1. Establishment of Work Plan.
The BDC shall prepare an annual operational, programmatic and development plan
(known as the "Work Plan") and budget ("Budget") for implementation of the BDC roles and
responsibilities set forth in Section 3 of this Agreement. Such Work Plan and Budget shall
describe in detail the activities and services to be performed by the BDC, with corresponding
expenditures and revenues. These programs shall take into account the different funding sources
anticipated, and may change from year to year. The Work Plan shall also describe the enhanced
maintenance that BDC will provide in that fiscal year. In preparing the Work Plan, staff from
the City and BDC shall meet and confer to coordinate the roles and responsibilities set forth in
Section 3 of this Agreement: BDC shall submit the Work Plan and Budget to the City Manager
for the City's review at least ninety (90) days prior to commencement of each fiscal year. BDC
shall consider and reasonably incorporate into the Work Plan and Budget recommendations
made by the City.
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9.2. THIS SECTION LEFT INTENTIONALLY BLANK
9.3. Annual Report.
The BDC shall submit an Annual Report to City within one hundred and twenty (120)
days of the end of BDC's fiscal year. The Annual Report shall include a status discussion
concerning (i) the operation of the Downtown and Bayside; (ii) the various programs conducted
by the BDC in connection with the Downtown, Bayside and this Agreement, including reports
concerning programs and uses of funds; (iii) the accomplishment of objectives contained in the
prior year's Work Plan; and (iv) any other matters connected with the Downtown, Bayside, or
within the BDC's knowledge which have a material impact on the Downtown, Bayside, or the
purposes or performance of this Agreement.
9.4. Annual Financial Report.
An audited annual financial report shall be prepared by BDC in such form as required by
the City's Director of Finance and shall be submitted within one hundred and twenty (120) days
of the end of BDC's fiscal year.
9.5. Miscellaneous Reports and Information.
BDC shall deliver to City copies of all notices, agendas, and minutes of BDC's Board of
Directors meetings, quarterly financial reports of expenditures, annual reports of all programs
and promotional activities, and any other information requested by City promptly upon request.
In addition, the BDC shall prepare, from time to time, reports on such other matters relating to its
responsibilities as City may reasonably request.
SECTION 10. TERMINATION.
10.1. Termination Upon Default.
In the event the BDC fails or refuses to perform any of its obligations hereunder, at the
time and in the manner required by this Agreement, the City shall provide BDC with written
notice of default and the steps necessary to cure such default. BDC shall cure such default
within thirty (30) days from the date of written notice from the City. If, however, the default
cannot reasonably be cured within said thirty (30) days, the City may extend the time for cure.
In the event BDC fails to cure in a timely manner, the City may exercise any remedies available
under law or equity, including but not limited to:
(a) Terminate this Agreement immediately by giving the BDC written notice thereof.
(b) City may take steps to cure the default and, to the extent permissible, recover
costs incurred due to the default by retaining said costs from assessments collected by the City
from property and business owners.
Exercise of either of the above remedies by City shall in no way limit City's exercise of
any other remedies existing at law or in equity.
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10.2. Termination Without Cause.
(a) Either party may terminate this Agreement immediately if the Santa Monica
PBAD is dissolved pursuant to applicable state law upon written notice to the other party.
(b) BDC may terminate this Agreement without cause at anytime during the term of
the Agreement upon six (6) months' written notice to the City. -
10.3. Reversion of Funds and Property.
Upon termination of this Agreement, BDC shall immediately convey to City all unspent
funds within BDC's possession or control; whether such funds were originally from City orfrom
other sources, together with an accounting of all financial obligations of BDC at the time of
termination. All furniture, equipment and supplies, and all other assets of BDC, shall revert to
the City at the termination of this Agreement.
SECTION 11. AVAILABILITY OF CITY INFORMATION.
Upon reasonable notice, the City will make available to the BDC all public documents at
its disposal reasonably required to fulfill the purposes and intent of this Agreement, including
census data, property ownership records, copies of maps, studies and professional consultant and
City staff reports relevant to the Downtown. In addition, City shall make available to the BDC
planning and marketing studies and economic analyses which affect the Downtown. BDC shall
have access to public records regarding any proposed development in the Downtown, or any
development which would restrict vehicular or pedestrian access to the Downtown or otherwise
materially affect the operation or management of the Downtown. Additionally, the City shall,
upon reasonable notice, make available to the BDC non-confidential information concerning
costs and revenues attributable to Downtown area facilities and programs available to BDCs
SECTION 12. PURCHASING AND OTHER MONETARY OBLIGATIONS FOR
OPERATION OF THE DOWNTOWN.
The BDC shall be solely responsible for costs and expenses incurred in connection with
the satisfaction of its obligations under this Agreement, including, but not limited to, salaries,
insurance and payroll taxes for its employees. BDC shall also bear all costs for programmatic
activities identified in the annual Work Plan and annual Budget, including, but not limited to,
marketing, promotions and special events. However, the BDC shall not be responsible for
payment of any property taxes, insurance, assessments or other costs associated with the
ownership or operation of real property or the Public Areas of the Downtown, except as may be
specifically required to be paid by the BDC pursuant to this Agreement or its annual budget, as
approved by the City.
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SECTION 13. COMPENSATION.
13.1. Annual Budget.
After deduction of administrative fees and any reservations for refunds owed to assessees
or fee payers, as provided in this Agreement, City will provide BDC the balance of assessment
and fee revenues generated by businesses and property owners within the Bayside for purposes
of performing services pursuant to this Agreement. Use of the funding shall be consistent with
the Annual Plan required hereunder. Nothing herein shall be deemed to obligate the City to fund
any specific amount of money for BDC.
Consistent with the requirements of this Agreement and local, state and federal laws, as
well as BDC's conflict of interest requirements, nothing in this Agreement shall otherwise
preclude the BDC from accepting contracts or funding from various business improvement areas,
assessment districts, private sponsorships for events or other sources of revenue.. BDC may
accept such funding or contracts, provided that the purpose of these funds or contracts falls
within the general purpose of the continued revitalization and promotion of the Downtown and is
consistent with the purposes and intent to this Agreement.
13.2. Filming and Special Event Fees.
BDC shall have the right and authority to collect filming and special event location fees
in accordance with a fee schedule established by BDC and approved by the City for filming and
special events occurring Downtown. All film application fees shall be retained by the City.BDC
shall provide the City with an accounting of all filming and special event fees collected as part of
the annual BDC budget.
13.3. No Naming Rights.
Nothing in this Agreement is intended to permit BDC to allow any person, including any
corporation to have-the right to have his, her, or its name associated with the Bayside District.
This Section shall not apply to sponsors of special or temporary events conducted pursuant to
and consistent with the current Work Plan.
SECTION 14. BDC OPERATING STANDARDS.
14.1. By-Laws.
(a) BDC has adopted By-laws approved by City governing its operations, including
procedures for amendment of said By-laws. Under the By-laws approved by the City on January
13, 2009, the By-laws may not be amended or repealed without prior written approval of at least
seven (7) Directors. A copy of the By-laws is on file in the offices of BDC.
(b) As a condition precedent to the effectiveness of this Agreement, BDC shall
amend its By-laws to provide that a person shall not qualify nor remain as a Director,if that
person is an agent, representative, employee or volunteer of the owner of property or the owner
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of property not current in payment of special or general benefit assessments, fees or licenses
imposed within the Bayside or Downtown.
14.2. Nondiscrimination.
BDC certifies and agrees that it will not discriminate against any employee or applicant
for employment because of race, color, religion, national origin, ancestry, sex, marital status,
age, sexual orientation, disability or condition of having AIDS, in accordance with the
requirements of local, state and federal law. BDC also agrees that it will provide equal
opportunity to all employees and applicants without regard to race, color, religion, national
origin, ancestry, sex, marital status,-age, sexual orientation, disability or condition of having
AIDS, in accordance with requirements of local, state and federal law. Such shall include, but
not be limited to, the following:
a. Employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of compensation; and
b. Selection for training, including interns and apprentices.
BDC agrees to post notices setting forth the provisions of this Section in conspicuous
places in each of BDC's facilities providing services hereunder, available and open to employees
and applicants for employment.
BDC shall state, in all solicitations or advertisements for employees placed by or on
behalf of BDC, that all qualified applicants will receive consideration for employment without
regard to race, color, religion, national origin, ancestry, sex, marital status, age, sexual
orientation, disability or condition of having A.LD.S., in accordance with requirements of local,
state and federal law.
In accordance with applicable state and federal law, BDC shall allow duly authorized
county, state, and federal representatives access to its employment records during regular
business hours in order to verify compliance with the nondiscrimination provisions of this
Section. BDC shall provide such other information and records as such representatives may
require in order to verify compliance with the nondiscrimination provisions of this Section.
If City finds that any of the provisions of this Section have been violated, the same shall
constitute a material breach of this Agreement upon which City may determine to cancel,
terminate, or suspend this Agreement. While City reserves the right to determine independently
that the nondiscrimination provisions of this Agreement have been violated, a determination by
the California Fair Employment and Housing Commission or the Federal Equal Employment
Opportunity Commission that BDC has violated State and Federal nondiscrimination laws shall
constitute a finding by City that BDC has violated the nondiscrimination provisions of this
Agreement. BDC will provide the City with a copy of its personnel policies manual which sets
forth the policies governing transactions between employees and prospective employees and the
BDC relating to employment benefits and other personnel-related services.
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BDC shall not discriminate in any manner in providing the services set forth in this
Agreement. All contracts or agreements entered into by BDC shall comply with Title VI of the
Civil Rights Act of 1964 (Public Law 88 - 352), as applicable. Any contracts awarded by BDC
shall comply with the terms of this Section.
14.3. Accounting Procedures.
BDC shall maintain its books and records in accordance with generally accepted
accounting principles (GAAP), and in such form as will facilitate accurate preparation of
necessary fiscal reports and in such form as is otherwise acceptable to the City. BDC may retain
the services of a certified public accountant for assistance in this function. City shall have access
to all of BDC's books, records, and accounts, including those records kept pursuant to Section
4.3 of this Agreement, and shall have the right to audit such books, records and accounts upon
reasonable notice and during normal working hours.
14.4 Compliance with City Policies and Management Plan.
BDC shall comply with all laws of the State of California and the United States, all
ordinances, rules and regulations enacted. or issued by City and the Management Plan..
SECTION 15. INSURANCE AND INDEMNIFICATION.
15.1. Insurance Coverage.
BDC shall procure and maintain for the duration of this Agreement the following
insurance against claims for injuries to persons or damages to property which may arise
from or in connection with BDC's services performed under this Agreement.
A. Minimum Scope and Limits of Insurance.
Commercial General Liability -Ten Million Dollars ($10,000,000) per
occurrence for bodily injury, personal injury and property damage.
2. Non-Profit Directors and Officers Liability -One million dollars
($1,000,000) per occurrence/$1,000,000 aggregate.
Workers' Compensation and Employer's Liability -Limits as required by
the Labor Code of the State of California and Employer's Liability limits
of one million dollars ($1,000,000) per accident.
Crime Coverage - A comprehensive crime coverage policy with a
minimum limit of two hundred thousand dollars ($200,000). Coverage to
include (i) employee dishonesty (to include employees and board
members), (ii) monies and securities coverage both inside and outside
premises, and (iii) depositors forgery coverage.
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5. Property Insurance - "All Risk" policy in an amount no less than 100%
full replacement value of BDC's contents, inventory and equipment.
6. Non-Owned and Hired Auto Liability -Two million dollars ($2,000,000)
per occurrence for each accident.
B. Other Insurance Provisions (General and Auto Liability Insurance Only)
The City of Santa Monica, its officers, members of its City Council, boards and
commissions, ,agents, employees, and volunteers are to be covered as additional insureds
as respects liability arising from services provided by BDC under this Agreement.
C. All Coverages
1. BDC's insurance coverage shall be primary insurance as respects the City of
Santa Monica, members of its City Council, boards and commissions, officers, agents,
employees, and volunteers.
2. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled, except after thirty (30) days prior written notice by mail
has been given to the City.
D. Deductibles and Self-Insured Retentions
Any. deductibles or self insured retentions must be declared to and approved by the City.
E. Waiver of Subrogation
The Insurer (for liability and property and workers' compensation insurance only) shall
agree to waive all rights of subrogation against the City, its officers, officials, agents,
employees and volunteers for losses arising from activities and operations of BDC.
F. Acceptability of Coverage
Insurance is to be placed with insurers admitted to do business in the State of California.
G. Verification of Coverage
BDC shall furnish the City with certificates of insurance required by this clause. The
certificates are to be signed by a person authorized by that insurer to bind coverage on its
behalf. The certificates are to be on forms provided by the City and are to be received
and approved by the City before the Agreement is effective. If the insurance company
will not use the City forms, BDCmay provide as an alternative, complete copies of all
required insurance policies, including endorsements effecting the coverage required by
these specifications.
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H. Modifications to Insurance Requirements
The City's Risk Manager must approve any modifications to the scope or amount of
insurance required in this section, in writing and in advance.
I. Notification to Risk Manager
In the event the BDC is unable to maintain the minimum insurance required by this
Section 15.1 (including, without limitation, the requirement to obtain a waiver of
subrogation for liability insurance) due to the unavailability of such insurance (or waiver)
or due to significant cost of such insurance (or waiver), the BDC shall notify the City's
Risk Manager in writing as soon as feasibly possible upon notice from its insurance
carrier and prior to the expiration of the existing coverage. The City, in its sole
discretion, shall have the option, but no obligation, to procure replacement coverage at
BDC's sole cost and expense, or modify the amounts and/or types of insurance, after
consultation with BDC, so long as the additional orreplacement coverage is readily
available at commercially reasonably prices and is consistent with generally applicable
risk management practices.
15.2. Third Party Indemnity and Insurance
A. Third Party Indemnity
Except as otherwise approved in writing by the City, BDC shall require that all written
contracts that it enters into require that such third party indemnify and save City, its City
Council, its boards and commissions, its agents, representatives, employees, and lenders
designated by City, BDC and their respective officers, directors, agents, employees, and affiliates
harmless from, and defend them against, all liabilities, losses and claims, and reimburse them for
all expenses they incur (including the costs of litigation and reasonable attorneys' fees) on
account of personal injury or death to persons and damage to property which occurs in the
Downtown, to the extent caused by the misconduct or wrongful or negligent act or omission of
such independent contractor, or employees or agents of such independent contractor, arising
from or related to the performance of work or services it performs on or about the Downtown, or
from such contractor's property. Each independent contractor that BDC employs hereunder shall
pay for and defend any and all suits or actions threatened or instituted against BDC or City, its
City Council, its boards and commissions, its agents, representatives, employees, and its lenders
designated by City, and shall pay all reasonable attorneys' fees, litigation costs and all other
expenses in connection therewith, and shall promptly discharge any judgments arising therefrom.
These conditions shall also apply to any work or operations subcontracted by such contractors.
Such provisions shall expressly survive the expiration of any contracts in which they are
contained.
B. Third Party Insurance
Every subcontract or agreement of any kind entered into between BDC and a
subcontractor (or between any BDC subcontractor and others) shall require the subcontractor to
provide the following minimum scope and limits of insurance: 1. Commercial General Liability -
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Two million dollars ($2,000,000) per occurrence for bodily injury, personal injury and property
damage; Workers' Compensation and Employer's Liability -Limits as required by the Labor
Code of the State of California and Employer's Liability limits of one million dollars
($1,000,000) per accident; Non-Owned and Hired Auto Liability -One million dollars
($1,000,000) per occurrence for each accident. The City of Santa Monica, members of its City
Council, boards and commissions, officers, agents, employees, and volunteers shall be covered
as additional insureds as respects liability arising from services provided by a subcontractor to
BDC under this Agreement.
15.3. Indemnity by BDC.
It is understood and agreed between the parties that BDC's insurance set forth in Section
15.1, above, shall be the primary.insurance in connection with the Indemnified Claims defined
below. To the extent that BDC insurance does not cover any such Indemnified Claim, BDC
agrees to indemnify, save, protect, defend and hold harmless the City, its City Council, boards
and commissions, agents, representatives, employees, lenders and volunteers (collectively, the
"City Indemnitees") from any liability, claim, action, proceeding, loss, damage, cost, expense, or
injury to persons or properly (collectively, "Indemnified Claim") arising directly or indirectly
from or in any manner related to BDC's services, duties and obligations under this Agreement,
except to the extent any Indemnified Claim is caused by the active negligence or willful
misconduct of the City. The City shall promptly notify BDC of any Indemnified Claim and
cooperate with BDC in connection with the defense of such Indemnified Claims. BDC's
indemnity obligations set forth in this Section 15.3 shall be over and above all valid and
collectible insurance by the BDC. To the extent the indemnity obligations set forth in this
Section 15.3 apply, BDC shall defend the City Indemnitees from such Indemnified Claims, at
BDC's sole cost and expense through legal counsel acceptable to the City.
SECTION 16. MISCELLANEOUS.
16.1. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto and no
variance or modification thereof shall be valid or enforceable, except pursuant to a supplemental
written instrument executed by both City and BDC.
16.2. Delegation and Assignment.
BDC shall not delegate or assign all or any portion of its rights or duties under this
Agreement to any person, firm, or entity, except as maybe specifically permitted by this
Agreement. BDC may subcontract work to fulfill its responsibilities under this agreement. BDC
shall be responsible for the quality of all subcontractor work performed pursuant to this
Agreement.
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16.3. Notices.
All notices, demands, requests, consents, or approvals as may be required or permitted to
be given under this Agreement shall be in writing and shall be sent via mail, or hand delivered, to
the parties at the addresses set forth below.
To BDC: Bayside District Corporation
Attention: Executive Director
1351 Third Street Promenade, Suite 301
Santa Monica, California 90401
To City: City of Santa Monica
Economic Development Division
Attention: Economic Development Manager
1901 Main Street, Suite E
Santa Monica, California 90405
With copies to:
City of Santa Monica
City Manager's Office
1685 Main Street
Santa Monica, CA 90401
Attention: City Manager
City of Santa Monica
City Attorney's Office
1685 Main Street, Room 310
Santa Monica, CA 90401
Attention: City Attorney
16.4. No Interest in Property.
This Agreement shall not be deemed at any time to be an interest in real property or a lien
of any nature against the Downtown, the Third Street Promenade, or the real property upon
which the Third St. Promenade improvements are erected. This clause shall be self-operative
and no further instrument of subordination shall be required. The relationship of the City and
BDC shall not be that of a partnership; joint ventures, or otherwise of co-owners.
16.5. Other Services.
In addition to the services specifically set forth in this Agreement, BDC shall perform
from time to time such other services necessary or desirable for the operation, management,
restoration, and continued revitalization of the Downtown as the City shall reasonably request
and may be practicable within the BDC annual budget.
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16.6. Approvals.
All approvals requested or required to be given by either party hereto, unless a specific
time frame is set forth in this Agreement, shall be given within thirty (30) days following
delivery of the request for approval. All approvals shall be in writing.
16.7. Waiver.
A waiver by City of any breach of any term, covenant, or condition contained herein shall
not be deemed to be a waiver of any subsequerit breach of the same or any other term, covenant,
or condition contained herein whether of the same or a different character.
16.8. Governing Law.
This Agreement has been made and shall be construed and interpreted in accordance with
the laws of the State of California.
16.9. Compliance with Applicable Law.
BDC shall perform all of the services set forth in this Agreement in complete accordance
with all applicable municipal, state or federal laws, ordinances, rules and regulations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
CITY OF SANTA MONICA,
a municipal corporation
By:
P. LAMONT SWELL
City Manager
APPROVED AS TO FORM:
MARSHA JONES MOUTRIE
City Attorney
ATTEST:
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MARIA STEWART
City Clerk
BAYSIDE DISTRICT CORPORATION,
anon-profit public benefit corporation
By:
Chair
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TABLE OF CONTENTS UPDATE
SECTION 1. DEFINITIONS ...................................................................................................... 2
SECTION 2. TERM .....................................:.............................................................................. 3
SECTION 3. ROLES AND RESPONSIBILITIES ................................................................... 4
3.1. BDC ROLES AND RESPONSIBILITIES ........................................................................... .. 4
3.2. THE CITY'S ROLES AND RESPONSIBILITIES ................................................................ .. $
SECTION 4. ADMINISTRATION OF FUNDS ...................:................................................ .. 7
SECTION 5. CONSTRUCTION PROJECTS ........................................................................ .. 7
5.1. DOWNTOWN URBAN DESIGN PLAN ............................................................................ ..7
$.2. CAPITAL IMPROVEMENT PROJECTS ............................................................................
~. ..7
.
SECTION 6. MAINTENAN,CE~2rND MANAGEMENT OF PUBLIC AREAS ...........:......
.. 8
6.1. GENERAL MARVTENANCE~MATTFRS.., ........................................................................ .. 8
6.2. ~;:.
SECURITY. ....... ... . .................................:........................................
.. 8
6.3. MANAGEMENT ....,. t;-..... ............................:............................................. ..8
SECTION 7. MANAGElYIli1~T OF L~ASEHOIaD~7AND LICENSED SPACE ................... .. 9
7.1. MANAGEMENT OF LIASEHOI:D SPACS~ANb LICENSED SPACE .................................... .. 9
7.2. GENERAL DUTIES AND RESPQNSIBILITI~S REG
ARDIfiYG~,HASES AND LICENSES.......... .. 9
7.3. „
.....................................
LEASE AND LICENSE EXECUTION ...> ~.. .... .. 9
7.4. .
MANAGEMENT OF LEASES AND LICENSES,. ' ~~'
,~,... ~.sY;~ ...........................
..9
7.$. -r
ENFORCEMENT .............................................................:..........................................
..9
7.6. RULES AND REGULATIONS....... .....................:. ~............................:.............. .. 9
7.7. BDC NOT BROKER/AGENT ...................... ........€. ' ........................................... 10
7.8. OTHER STRUCTURES CONSTRUCTED IN PUBLIC AREAS .............................................. 10
7.9. VENDING CART OPERATIONS ..............................................................................:...... 10
7.10. OUTDOOR DRYING LICENSE AGREEMENTS :..............:................................................. 1-0
SECTION 8. ADVERTISING, PROMOTION, ENTERTAINMENT, AND SPECIAL
EVENTS ...................................................................:................................:.................................. 10
8.1. BDC PROGRAMS ........................................................................................................ 10
8.2. FILMING AND SPECIAL EVENTS .................................................................................. 11
8.3. SIGNS AND BANNERS ..:............................................................................................... 11
8.4. STREET PERFORMERS ................................................................................................. 11
SECTION 9. REPORTING REQUIREMENTS .................................................................... 11
9.1. ESTABLISHMENT OF WORK PLAN .................................................,............................. 11
9.2. THIS SECTION LEFT INTENTIONALLY BLANK ................:............................. 12
9.3. ANNUAL REPORT ........................................................................................................ 12
9:4. ANNUAL FINANCIAL REPORT ..................................................................................... 12
9.5. MISCELLANEOUS REPORTS AND INFORMATION .......................................................... 12
-1-
SECTION 10. TERMINATION ............................................................................................... 12
10.1. TERMINATION UPON DEFAULT ..............................................:.................................... 12
10.2. TERMINATION WITHOUT CAUSE ................................................................................ 13
10.3. REVERSION OF FUNDS AND PROPERTY ....................................................................... 13
SECTIO N 1L AVAILABILITY OF CITY INFORMATION .............................................. 13
SECTIO N 12. PURCHASING AND OTHER MONETARY OBLIGATIONS FOR
OPERATION OF THE DOWNTOWN .................:.................................................................. 13
SECTIO N 13. COMPENSATION .......................................................:............:...................... 14
13.1. ANNUAL BUDGET ....................................................................................................... 14
13.2. FILMING AND SPECIAL EVENT FEES ...................:..........:............................................ 14
13.3. No NAMING RIGHTS ........................................:.......................................................... 14
SECTIO N 14. BDC OPERATING STANDARDS ................................................................. 14
14.1. BY-LAWS ...............,................................................................................................... 14
14.2. NGNDISGRIMPIATIQIV ...............................................:.......................................... 15
14.3. ACCGUNTING PRO~EDUR~S :....................................................................................... 16
SECTIO ,.,
N 15. INSURANCE ANA' INDEMNIFICATION ....................................................
16
15.1. INSURANCECOVERACiE ........ ,' .......................................................................... 16
15.2. THIRD PARTY~~NI3EGiNIT,Y .....::. ........ ........................................................... 1$
15.3. s
INDEMNITY BY BDC. _;.. .....: ......:...................................................
19
~,
SECTIO N 16. MISCELLANEOUS ... ... ,:.... ........................................... 19
161. ENTIRE AGREEMENT. ......:.. ....:... ,,,..... .................................
~.... 19
16.2. DELEGATION AND ASSIGNMENT ..,,...., ...:... .,.....~ ......................:.... 19
16.3. NOTICES ................................................. ....................~.......................................... 20
16.4. NO INTEREST IN PROPERTY ...................................... ~ ........................................... 2O
16.5. OTHER SERVICES ..........:..........................................:~..-................................................ 20
16.6. APPROVALS .................:...:....................................:3'................................................... 21
16.7. WAIVER ...................................................................................................................... 21
16.8. GOVERNING LAW ......................:........................................:...........:......................:.... 21
16.9. COMPLIANCE WITH APPLICABLE LAW ........................................................................ 21
-11-
Exhibit A.
Wayside District
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Wayside District
Exhibit B
Downtown Santa Monica
~~ Zone 1 -Promenade
Zone 2 - BaysidelOcean
0 Zone 3 -Downtown East
CMD Management Plan Services Matrix
SeCtiOn OnC - 3rd Street Promenade•
From the north side of Wilshire to the south side of Broadway
Shifts: Effective 7/6!08
1 = 4:30 a.m to 1:00 a m.
2 = 2:00 p.m, to 10.30 n m. (Sunday -Thursday)
2:30 p.m. to 1100 a m (Friday & Saturday)
3`d Street. Promenade Maintenance•
Pedestrian Walkwavs-
146,400 sq. ft.
Sweeper Picks up large debris • Once daily, 6 days a week (Mon. --Sat.) 1
Sweeper-scrubber Picks up small debris, applies degreaser, • Once daily, 5 days a week (Mon
-Fri
) 1
scrubs pavement & recovers excess .
.
water
Pressure Washer Steam cleans in places scrubbers can't Once daily, 5 days a week (Mon
-Fri
) 1
reach .
.
Pre-treat stains Degreaser applied with hand-sprayer
® Once dail
5 da s a week Mon
-Fri
1
Policing Walk site, sweep & remove debris ,
.
.
• Twice daily, Man. -Thu. 1 & 2
• Three times daily, Fri. -Sun. & Holidays
Benches
(85) Spray & wipe • Once daily, 7 days a week 1
Drinking Foun#ains
(~) Spray & wipe Twice daily, 7 days a week 1 & 2
z/zoizoo9
CMD Management Plan Services Matrix
SeCtiOCI_Qtle - 3`a Street Promenade, Promenade Maintenance. Contd.
Trash Containers Wipe top, remove trash, replace bag Four times daily, Mon. -Thu. 1 & 2
(38) Five times dail ,Fri. -Sun. & Holida s
Trash Container Liners Steam clean & deodorize a Two times weekly 1
(33)
Public Phones Spray & wipe a Once daily, 7 days a week 1 & 2
~2$)
Stainless Steel Bollards Spray & wipe, steam clean o Once daily, 7 days a week 1
(27)
Directories Spray & wipe ® Once daily, 7 days a week 1
(13)
Sculptures Spray & wipe a Once daily, 7 days a week 1
(9)
Graffiti Remove a Daily, as needed, 7 days a week 1 & 2
Dinosaur Pools Remove debris o Daily, as needed, 7 days a week 1 & 2
(4)
Special Events - Extra trash containers & general 30 to 40 times, yearly, as needed 1 & 2
maintenance frequencies
Spot Cleaning & Additional cleanings, graffiti, broken glass, As needed throughout the day, 7 days 1 & 2
Customer Calls animal waste, etc. a week
Supervision Onsite, documented inspections m Three times daily, 7 days a week 1 & 2
Schedules Updates daily on computer Once daily, 7 days a week ~ 1
Off Duty Toxic spills, electrical, water, accidents, As needed
Emergency Call-outs eta
2/20/2009 2
CMD Management Plan Services Matrix ,
SBCtIOn ®n~-3`~ Street PublicL.andscape•
Tree Trimming Regular o Once, yearly (spring) TruGreen
3,790 sq. ft.
154
Tree Well Maintenance Inspect for grate displacement andlor Daily ~ TruGreen
3,790 sq. ft debris & litter
(154) Clean debris,7eset tree grates a As needed, based u on ins ections
Color Maintain flower pots m Weekly TruGreen
(136)
Change out annual color and install Thanksgiving through New Years week
Poinsettias
Shrubs & Topiary Prune & shape m Once every six weeks TruGreen
705 sq. ft.
Turf Maintenance Mow Weekly TruGreen
1,425 sq_ ft.
Irrigation Inspection Check system and controller for proper o Weekly. TruGreen /
settings In House
Fountain Maintenance Maintain fountains and provide cleaning o Bi-weekly California
service for the Topiary pools Waters
2120/2009
CMD Management Plan Services Matrix
SeC(CI011 TWO -Parking Structures:
Consists of Structures 1 -6; Structures 9 and 10; Ken Edwards Ce nter; Main Library; Givic Center, Public Safety Facility
Shifts: Effective 7/610$
1 = 4:30 a.m. to 1:00 p.m.
2 = 2:00 p.m. to 10:30 p.m. (Sunday -Thursday)
2:30 p.m. to 11:00 p.m. (Friday & Saturday}
Parking Structures, Promenade Maintenance:
Total StLuare Footage:
1,644,334 sq. ft..
Structures 1 -8
Mobile Vacuum Vacuums debris from large areas. • Once daily, 5 days a week (Man. -Fri.) 1
Sweeper Scrubber Picks up small debris, applies degreaser, • 1 structure, every 8 weeks 1
scrubs pavement & recovers excess
water
Pressure Washer Steam cleans in places scrubbers can't • 1 structure, every 8 weeks 1
reach
Policing Walk site, sweep & remove debris • Twice daily, 7 days a week 1 & 2
Trash Containers Wipe top, remove trash, replace bag . Twice daily, 7 days a week 1 & 2
(100)
Trash Container Liners Steam clean & deodorize Weekly, as needed 1
(100)
pirectional & Spray & wipe • Weekly, as needed 1
Informational Signs
(913)
2/20/2009
CMb Management Plan Services Matrix
SeC$1O17 TWO -parkins Structures promenade Maintenance„Coned
son rsroom Removes dust and soot from ledges, Once weekly 1 ik 2
islands, entrances and exits.
Bin Rooms
(6) Pressure wash, degrease, scrubber. Once daily, 6 days a week 1 & 2
Stairwells Organize trash and recyclables. ° Three times dail 7 da s a week
19 Remove graffiti, sponge walls, clean and 1 structure, every 3 weeks 1 & 2
deodorize.
Elevators
(24) Remove graffiti, clean & deodorize Two times daily, Mon. -Thu. 1 & 2
° Three times daily, Fri. -Sun. & Holidays
Elevator Lights Replace
91 As needed
°
Restrooms 1 - 6 Clean & deodorize Five times daily 1 & 2
i `Restrooms 3 & 4 "Onsite atfendanfs ° Every Fri, Sat & Sun, restrooms are 1 & 2
Clarifiers: staffed with onsite aftendants
_.
Structure 1 Clean out sludge Twice monthly 1 & 2
Structures z-6 Remove restaurant grease As needed
contracted once week)
Structures 9 & 10 Policing, sweep & remove debris ,
Two Times daily, 7 days a week 1 & 2
Empty Trash containers ° Twa times daily, 7 daysa week 1 & 2
Motor Sweeper ° Once
month) 1
Ken Edwards Center
Parking Structure Policing, sweep & remove debris ,
m Two times daily, 7 days a week 7 & 2
Pressure Washer &Sweeper-scrubber ° Once, monthly 1
zizoizoo~ s
CMD Management Plan Services Matrix
SE'Ctlon YWO -Parkinq Structures, Promenade Maintenance Gont'd.
Main Library policing, sweep. & remove debris • Two times daily, 7 days a week 1 & 2
Parkinq Structure
Pressure wash (select areas) • Two times monthly, as needed 1
Pressure Washer &Sweeper-scrubber • Twice earl 1
Civic Center Vacuum Truck Twice weekly 1
Parkinq Structure
Empty trash Once daily, 7 days a week 1 $~ 2
Sweep & deodorize stairways • Once daily, 7 days a week 1 & 2
Pressure Washer & Sweepervscrubber Twice yearly 1
Public Safety Facility Motor sweep • Twice monthly 1
Parki~____:n Std ructure
Pressure Washer &Sweeper-scrubber Twice earl 1
Spot Cleaning Additional cleanings, graffiti, broken glass, • Daily as needed 7 days per week 1 & 2
& Customer Calls animal waste, etc.
Graffiti Remove • Dail , as needed, Tda s erweek 1 & 2
Absorbent For oil, grease, etc. Dail , as needed, 7 da s erweek 1 & 2
Off Duty Toxic spills, electrical, water, accidents, : As needed
Emer enc Call-outs etc.
2/20!2009 6
Parkinq Structures, Public Landscape:
GMD Management Plan Services Matrix
•• ..., ^ rv mvua e-w COUC « YY USnir(v` 60WeVarO'
Sidewalks on both sides of streets from east side of Ocean Avenue to east side of 5"' Street.
2"~ and 4`h Streets•
Sidewalks on both sides of streets from north side of Wilshire Boulevard to south side of Colorado Avenue.
Total Sauare Foataae:
1$4,920 sq. ft. (Arizona & Wilshire =$9,760 sq. ft. + 2"" & 4"' Streets = 95,160 sq. ft).
Shills: Effective 7/6/08
1 = 4:30 a:m, to 1:00 p.m.
2 = 2:OD p.m. to 10:30 p.m. (Sunday -Thursday)
2:30 p. m. to 11:00 p.m. (Friday & Saturday)
2/20/2009 ~
CMD Management Plan Services Matrix
2/20/2009
SeC$IOn TRIP@@ -Arizona Avenue & Wilshire Boulevard and 2na & 4tn Streets Promenade Maintenance Cont'd
CMD Management Plan Services Matrix
Section Three - Pobiic Landscape
2ND & 4`h &treet
^~~ •^•~•~~~~~~a Rayuiar As needed, yearly VllestCOast
(46) Arborists
Tree Well Maintenance Backfill tree wells with decomposed ~ As-needed -Prep for summer West Coast
(61) granite Arborists
Wilshire Blvd.
2/20/2009 9
CMD Management Plan Services Matrix
SG'C'irlOfl ~Ollt'-Transit Mall:
Sidewalks on both sides of the streets:
Broadway east side of Ocean Avenue to east side of 5~h Street, and
® Santa Monica Boulevard from east side of Ocean Avenue to east side of 6~h Street.
Total Square Foote:
100,980 (Broadway = 44,880 sq. ft. + Santa Monica Boulevard = 56,100 sq. ft.)
Shifts: Effective 7!6/08
1 = 4:30 a.m. to 1:00 p.m.
2 = 2:00 p.m. to 10:30 p.m. (Sunday -Thursday)
2:30 p.m. to 11:00 p.m. (Friday & Saturday)
Transit Mali Promenade Maintenance•
Pedestrian Walkwavs:
Sweeper Picks up large debris m Once daily, 6 days a week (Mon. -Sat.) 1
Sweeper-scrubber Picks up small debris, applies degreaser, o Once daily, 5 days a week (Mon. -Fri.) 1
scrubs pavement & recovers excess
water
Pressure Washer Steam cleans in places scrubbers can't Once daily, 5 days a week (Mon. -Fri.) 1
reach
Pre-treat stains Degreaser applied with hand-sprayer Once daily, 3 days a week, as needed 1
Policing Walk site, sweep & remove debris Twice daily, Mon. ~ Thu. 1 & 2
a Three times dail ,Fri. -Sun. & Holida s
Benches (241) Spray & wipe, polish wood Once dail , 7 da s a week 2
2/20/2009 10
CMD Management Plan Services Matrix
S0C$ion FOUf -Transit Mall Promenade Maintenance Cont'd:
Trimming I Regular .Once, yearly (spring)
t for grate displacement andlor o Daily TruCree~
& litter In House
Clean debris, reset free grates ~ m As
Check system and controller for proper e We
a
2/20/2009 t t
S@C$lOt1 FOUY -Transit Mall Public Landsca e:
CMD Management Plan Services Matrix
Section Five -Alleys:
d 1St Court: Between Ocean Avenue & 2"d Street from north side of Wilshire Boulevard to south side of Colorado Avenue.
Mall Court West: Between 2nd Street and 3rd Street from north side of Wilshire Boulevard to south side of Broadway.
® Mall Court East: Between 3`d Street and 4t" Street from north side of Wilshire Boulevard to south side of Broadway.
® 4'" Court: Between 4'h and 5'h Streets from narth side of Wilshire Boulevard to south side of Colorado Avenue.
m Stn Court: Between 5th Street and 6'h Street from north side of Wilshire Boulevard to south side of Colorado Avenue.
Shifts: Effective 716/D8
1 = 4:30 s.m. to 1:OD p.m.
2 = 2:00 p.m. to 10:30 p.m. (Sunday -Thursday)
2:30 p.m. to 11:00 p.m. (Friday & Saturday)
Alleys, Promenade Maintenance:
Total Spuare Footage:
262,062 sq. ft. (1St Court = 5$,236 + Mall Court West = 43,677 + Mall Court East = 43,677 + 4'h Court = 58,236 + 5`" Court = 58,236)
z~zoizoo~
Iz
CMD Management Plan Services Matrix
2/20/2009 13
Section F[Ve -Alleys Promenade Maintenance Cont'd
CMD Management Plan Services Matrix
Section ~iVe - AlleVSt Promenade Maintenance Contd.
Ailevs, Public Landscape:
-End-
2/20/2009 I4
Attachment B
TH__IRD AMENDED AND RESTATED BYLAWS
BAYSIDE DISTRICT CORPORATION
a California non-profit public benefit Corporation
ARTICLE I. OFFICES
Section 1. Principal Office. The principal office of the Bayside District
Corporation (the "Corporation") shall be fixed and located at such place in the City of Santa
Monica, California as the Board of Directors (the "Board") shall determine. The Board is
granted full power and authority to change the principal office from one location to another.
Section 2. Other Offices. Branch or subordinate offices may be established at
any time by the Board at any place or places.
ARTICLE 2. MEMBERS
Section 1. Members. The corporation shall have no members. Any action
which would otherwise require approval by a majority of all members or approval by the
members shall require only approval of the Board. All rights which would otherwise vest in the
members shall vest in the Directors.
Section 2. Associates. Nothing in this Article 2 shall be construed as limiting the
right of the Corporation to refer to persons associated with it as "members" even though such
persons are not members, and no such reference shall constitute anyone a member within the
meaning of Section 5056 of the California Nonprofit Corporation Law. The Corporation may
confer by amendment of its Articles or of these Bylaws some or all of the rights of a member, as
set forth in the California Nonprofit Corporation Law, upon any person or persons who do not
have the right to vote for the election of Directors or on a disposition of substantially all of the
assets of the Corporation or on a merger, on a dissolution or on changes to the Corporation's
Articles or Bylaws, but no such person shall be a member within the meaning of said Section
5056.
ARTICLE 3. DIRECTORS
Section 1. Powers. Subject to limitations of the Articles and these Bylaws, the
activities and affairs of the Corporation shall be conducted, managed and controlled, and all
corporate powers shall be exercised by or under the direction of the Board. The Board may
delegate the management of the activities of the Corporation to an Executive Director and Staff,
to any other person or persons, or to committees however composed, provided that the activities
and affairs of the Corporation shall be managed and all corporatepowers shall be exercised
under the ultimate direction of the Board. Without prejudice to such general powers, but subject
to the same limitations, it is hereby expressly declared that the Board shall have the following
powers in addition to the other powers enumerated in these Bylaws:
(a) To select and remove an Executive Director, officers, agents, and
employees of the Corporation, prescribe powers and duties for them as may not be inconsistent
with law, the Articles, or these Bylaws, fix their compensation, and require from them security
for faithful service.
(b) To adopt, make and use a corporate seal and to alter the form of such seal
fromtime to time as they may deem best,
(c) To borrow money and incur indebtedness for the purposes of the
Corporation, and to cause to be executed and delivered therefor, in the corporate name,
promissory notes, bonds, debentures, deeds of trust, mortgages, pledges; hypothecations, or other
evidences of debt and securities therefor.
(d) To carry on a business at a profit and apply any profit that results from the
business activity to any activity in which it may lawfully engage, subject; however, to the
restrictions contained in the Articles.
Section 2. Number and Qualification of Directors.
~ ce,.+:,... ~ ~er.,..,a...,. s rs:..,...d,._.. The authorized number of Directors
shall be thirteen (13) until changed by amendment of the Articles or by a Bylaw.
~b A erson shall not aualifv nor remain as a Director if that person is an
aaent. renresentative_ emnlovee or volunteer of the owner of nronertv or the owner of nronerrv
not current in navment of special or seneral benefit assessments. fees or licenses imposed on
such owner's nronertv. includine assessments. fees or licenses imposed on nronertv within anv
of (i) the Downtown Santa Monica Property Based Assessment District established by the Citv
of Santa Monica pursuant to Resolution No. 10336 (CCSl on July 24. 2008. as the same may b
amended_ (iil the Third Street Promenade and Downtown District Operation and Maintenance
Area located within asub-area of the "Bavside District" established by the Citv of Santa Monica
the Citv of Santa Monica pursuant to Ordinance No. 725 (CCSI, as now and as the same may be
amended.
~ Anv sittine Director who fails to remain qualified-to serve as a Director
under the provisions of Subsection 2(b) immediately above fherein_ an "Dnaualif"ied Director")
sh 11 be removed from office by the Board if within thirtv (30) davs after receipt of notice from
the Corporation of the circumstance constitutine failure to cJualifv under Subsection 2fb) such
f ilure is not cured After expiration of said thirtv (30) day period without cure the Unqualified
Director shall be eiven fifteen (15) davs prior notice of his or her removal from the Board and
the reasons therefor and an opportunity for the Unqualified Director to be heard by the Boa_ rd,
orally or in writine.aot le~than_five (5) davs before the effective date of such removal.
Section 3. Selection and Term of Office. Directors shall be selected as set forth
in this Section 3 for terms of four (4) years (subject to Subsection 3(d) below) beginning January
1 of each year. Directors shall serve no more than two (2) consecutive terms.
(a) The Santa Monica City Council ("City Council") shall select six (6)
Directors.
(b) The owners of property subject to assessment under the Downtown Santa
Monica Property Based Assessment District (PBAD) (the "Property Owners") shall select six
(6) Directors.
(c) The City Manager of the City of Santa Monica or his/her designee shall
serve as a Director.
(d) With respect to the :ni.ia! Di.e;,to.c rr^t ,.oi^^,o,a ^cFe_,~,e ^,~,.,..;,.,. ,.c
*"°^° °^^^~a ^-~^^a^a ^_a °^°'^ ^a °~'^~°°Directors serving as ofAnril 1. 2009:
(i) The initial term of the Directors selected under
Subsection 3(a) above, three (3) shall be for a term of two (2) years and three (3) shall be for a
term of four (4) years; and
(ii) The initial term of the Directors selected under
Subsection 3(b) above, three (3) shall be for a term of at two (2) years and three (3) shall be for a
term of four (4) years.
Section 4. Vacancies. Subject to the provisions of Section 5226 of the California
Nonprofit Public Benefit Corporation Law, any Director may resign effective upon giving
written notice to the Chair of the Board, the Secretary, or the Board, unless the notice specifies a
later time for the effectiveness of such resignation. If the resignation is effective at a future time,
a successor may be elected before such time, to take office when the resignation becomes
effective.
(a) Vacancies in the Board shall be filled in the same manner as the
Director(s) whose office is vacant was selected. Each Director so selected shall hold office until
the expiration of the term of the replaced Director and until a successor has been elected and
qualified.
(b) A vacancy or vacancies in the Board shall be deemed to exist in case of
the death, resignation, or removal of any Director, or if the authorized number of Directors is
increased.
(c) The Board may declare vacant the office of a Director who has been
declared of unsound mind by a final order of court, or convicted of a felony, or found by a final
order orjudgment of any court to have breached any duty arising under Article 3 of the
California Nonprofit Public Benefit Corporation Law or who has failed to attend two (2)
meetings out of any six (6) consecutive, regular meetings of the Board. A Director selected by
the City Council may be removed without cause by the vote of five (5) City Council members.
A removed Director's successor may be elected immediately.
(d) . No reduction of the authorized number of Directors shall have the effect of
removing any Director prior to the expiration of the Director's term of office.
Section 5. Place of Meeting. Meetings of the Board shall beheld at any place
within the City of Santa Monica, State of California which is open to the public and which has
been designated from time to time by the Board. In the absence of such designation, regular
meetings shall be held at the principal office of the Corporation, in which case the principal
office of the corporation shall be open to the public for the meeting of the Board.
Section 6. Annual Meetings. The Board shall hold an annual meeting for the
purpose of organization, election of officers, and the transaction of other business.
Section 7. Regular Meetings. Regular meetings of the Board shall be held on
such dates and at such times as may be fixed by the Board: At least ten (10) monthly meetings
shall be held during each full fiscal year. Notice of regular meetings shall be sent to the City
Clerk, the Santa Monica Police Department and the Santa Monica Public Library not fewer than
three_(3) nor more than ten (10) days before such meeting. In addition such notice shall, to the
extent possible, be posted on the website of the Corporation. The notice shall specify the
business intended to be conducted at the meeting, but any business transacted at such meeting
shall be validly conducted, so long as not otherwise inconsistent with law, the Articles or these
Bylaws.
Section 8. Special Meetings. Special meetings of the Board for any purpose or
purposes may be called at any time by the Chair of the Board, the Executive Director, any Vice
Chair, the Secretary, or any six (6) Directors.
Special meetings of the Board shall be held upon four (4) days notice by first-class mail
or 48 hours notice given personally or by telephone, telegraph, telex, email, or other similar
means of communication. Any such notice shall be addressed or delivered to each Director at
such Director's address as it is shown upon the records of the Corporation or as may have been
given to the Corporation by the Director for purposes of notice or, if such address is not shown
on such records or is not readily ascertainable, at the place in which the meetings of the Directors
are regularly held. Such notice shall also (a) be given to the City Clerk, the Santa Monica Police
Department and the Santa Monica Public Library; and (b) shall, to the extentpossible, be posted
on the website of the Corporation. The notice shall specify the purpose of the meeting, but any
business transacted at such meeting shall be validly conducted, so long as not otherwise
inconsistent with law, the Articles or these Bylaws.
Notice by mail shall be deemed to have been given at the time a written notice is
deposited in the United States mails, postage prepaid. Any other written notice shall be deemed
to have been given at the time it is personally delivered to the recipient or is delivered to a
common carrier for transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone or wireless, to the recipient or to a person at the. office
of the recipient who the person giving the notice has reason to believe will promptly
communicate it to the receiver.
Section 9. Quorum. Seven (7) Directors constitute a quorum of the Board for
the transaction of business, except to adjourn as provided in Section 12 of this Article 3. Every
act or decision done or made by a majority of the number of (but no fewer than five) Directors
present at a meeting duly held at which a quorum is present shall be regarded as the act of the
Board, unless a greater number is required by law, by the Articles or by these Bylaws.
Notwithstanding the foregoing, a quorum shall not exist unless at least one Director appointed by
the Property Owners is present and unless at least one Director appointed by either the City
Council or the City Manager of the City of Santa Monica is present.
Section 10. Participation in Meetings by Conference Telephone. Members of
the Board may participate in a meeting through use of conference telephone or similar
communications equipment, so long as all persons participating in or present at such meeting can
hear one another, and so long as' not less than a quorum of the Board is present in person at the
meeting. In order to vote at such a meeting, any Director participating through the use of
conference telephone or similar communications equipment must have so participated for the
entire portion of such meeting preceding such vote.
Section 11. Waiver of Notice. Notice of a meeting need not be given to any
Director who signs a waiver of notice or a written consent to holding the meeting or an approval
of the minutes thereof, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such Director. All such
waivers, consents, and approvals shall be filed with the corporate records or made a part of the
minutes of the meetings.
Section 12. Adjournment. A majority of the Directors present, whether or not a
quorum is present, may adjourn any Directors' meeting to another time and place. Notice of the
time and place of holding an adjourned meeting need not be given to absent Directors, nor to the
news media, the City Clerk or the City Manager if the time and place is fixed at the meeting
adjourned, except as provided in the next two sentences. If the meeting is adjourned for more
than seventy-two (72j hours, notice of any adjournment to another time or place shall be given
prior to the time of the adjourned meeting to the Directors who were not present at the time of
the adjournment. A written notice of adjournment setting forth the time and place of the
adjourned meeting shall be conspicuously posted on or near the door of the place where the
regular, adjourned regular, special or adjourned special meeting was held within 24 hours after
the time of adjournment, and shall remain posted until at least the time specified therein for the
commencement of the adjourned meeting.
Section 13. Public Meetings. All meetings of the Board shall be open and public,
and any person shall be permitted to attend any meeting of the Board, except as otherwise
provided in this Section. Members of the public shall be entitled to participate in accordance with
such rules as may be adopted by the Board from time to time. Nothing contained in this Section
or these Bylaws shall be construed to prevent the Board from holding closed sessions to the
extent permitted by applicable law (a) for the purpose of discussing matters related to litigation,
including pending, threatened or anticipated litigation; (b) to consider the appointment,
employment, evaluation of performance, or dismissal of an employee or to hear complaints or
charges brought against an employee by another person or employee unless such employee
requests a public hearing or (c) for such other purposes as may be permitted by the Ralph M.
Brown Act (California Government Code Sections 54950 et seq.); provided, however, that the
final vote of the Board on any action to be taken by the Corporation with respect to the
appointment, employment or dismissal of an employee shall be taken at a meeting of the Board
while such meeting is open to the public.
Section 14. Rights of Inspection. Every Director shall have the absolute right at
any reasonable time to inspect and copy all books, records, and documents of every kind and to
inspect the physical properties of the Corporation.
Section 15. Committees. The Board may appoint one or more committees, each
consisting of two or more Directors, and delegate to such committees any of the authority of the
Board except with respect to:
(a) The approval of any action for which the California Non-Profit Public
Benefit Corporation Law also requires approval of the members or approval of a majority of all
members,
(b) The filling of vacancies on the Board or in any committee which has the
authority of the Board;
(c) The amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable;
(d) The approval 6f any self-dealing transaction, as such transactions are
defined in Section 5233(a) of the California Non-Profit Public Benefit Corporation Law.
Any such committee must be created, and the members thereof appointed, by resolution
adopted by a majority of the authorized number of Directors then in office, provided a quorum is
present, and any such committee may be designated an Executive Committee or by such other
name as the Board shall specify. The Board may appoint, in the same manner, alternate members
of any committee who may replace any absent member at any meeting of the committee. The
Board shall have the power to prescribe the manner in which proceedings of any such committee
shall be conducted. In the absence of any such prescription, such committee shall have the power
to prescribe the manner in which its proceedings shall be conducted. Unless the Board or such
committee shall otherwise provide, the regular and special meetings and other actions of any
such committee shall be governed by the provisions of this Article 3 applicable to meetings and
actions of the Board. Minutes shall be kept of each meeting of each committee:
Section 16. Fees and Compensation. Directors and members of committees shall
receive no compensation for their services as such Directors or members, but may receive such
reimbursement for business related expenses, as may be fixed and authorized by the Board,
consistent with the guidelines and reimbursement policies of the City of Santa Monica.
Section 17. Participation In Political Activities. Directors and members of
Committees are prohibited from knowingly participating in supporting nominees for Board
membership and political activities/organizations by making a representation as a Board and/or
Committee Member. The Board shall not authorize nor reimburse any Director or staff for
expenses incurred in the support of nominees to the Board nor involvement in political activity.
(a) The Corporation is prohibited from spending money or making public
statements in support of, or in opposition to, candidates for public office or nominees for
Director.
(b) The Directors, as Directors of the Corporation, are prohibited from
intentionally spending money or making public statements in support of candidates for public
office oc nominees for Director.
(c) The provisions of this Section 17 do not limit the activities or statements
of Directors as private citizens.
ARTICLE 4. TRANSACTIONS IN WHICH DHtECTORS HAVE MATERIAL
FINANCIAL INTEREST
Section 1. Prohibition Against Self-Dealing Transactions. The Corporation
shall not enter into any transaction in which one or more of its Directors has a material financial
interest, unless the transaction meets the requirements of paragraph (a), (b) or (c) of Section 2 of
this Article 4. For purposes of this Article 4, a "self dealing ransaction" means a transaction to
which the Corporation is a party and in which one or more of its Directors has a material
financial interest; provided that such material financial interest shall not be deemed to exist due
to any Director being or being affiliated with a Property Owner. For purposes of this Article 4,
such a Director is referred to as an "interested Director." This section shall not be construed to
prohibit (a) a transaction which is part of a public or charitable program of the Corporation if it
(i) is approved or authorized by the Corporation in good faith and without unjustified favoritism;
and (ii) results in a benefit to one or more Directors or their families because they are in the class
of persons intended to be benefited by the public or charitable program; or (b) a transaction, of
which the interested Director or Directors have no actual knowledge, and which does not exceed
the lesser of 1 percent of the gross receipts of the Corporation for the preceding fiscal year or one
hundred thousand dollars ($100,000).
Section 2. Permitted Self-Dealing Transactions. The Corporation shall be
authorized to engage in aself-dealing transaction if:
(a) The California Attorney General or the court in an action in which the
California Attorney General is an indispensable party, has approved the transaction before or
after it was consummated; or
(b) The following facts are established:
(1) The Corporation entered into the transaction for its own benefit;
(2) The transaction was fair and reasonable as to the Corporation at the
time the corporation entered into the transaction;
(3) Prior to consummating the transaction or any part thereof, the
Board authorized or approved the transaction in good faith by a vote of a majority of the
Directors then in office without counting the vote of the interested Director or Directors, and
with knowledge of the material facts concerning the transaction and the Director's interest in the
transaction. Except as provided in paragraph (c) of this Section 2, action by a committee of the
Board shall not satisfy this paragraph; and
(4) (A) Prior to authorizing or approving the transaction, the Board
considered and in good faith determined after reasonable investigation under the circumstances
that the Corporation could not have obtained a more advantageous arrangement with reasonable
effort. under the circumstances; or
(B) The Corporation in fact could not have obtained a more
advantageous arrangement with reasonable effort under the circumstances; or
(c) The following facts are established:
(1) A committee or person authorized by the Board-approved the
transaction in a manner consistent with the standards set forth in paragraph (b) of this Section 2;
(2) It was not reasonably practicable to obtain approval of the Board
prior to entering into the transaction; and
(3) The Board, after determining in good faith that the conditions of
subparagraphs (1) and (2) of this paragraph were satisfied, ratified the transaction at its next
meeting by a vote of the majority of the Directors then in office without counting the vote of the
interested Director or Directors.
Section 3. Prohibited Loans and Guarantees. The Corporation shall not make
any loan of money or property to or guarantee the obligation of any Director or Officer, unless
approved by the California Attorney General, except that the Corporation may advance money to
a Director or Officer of the Corporation for expenses reasonably anticipated to be incurred in the
performance of the duties of such Officer or Director, provided that in the absence of such
advance, such Director or Officer would be entitled to be reimbursed for such expenses by the
Corporation.
ARTICLE 5. OFFICERS
Section 1. Officers. The officers of the Corporation shall be a Chair of the
Board, a Secretary, and a Treasurer, who shall also serve as the Chief Financial Officer. The
Corporation may also have, at the discretion of the Board, one or more Vice-Chairs, one or more
Assistant Secretaries, one or more Assistant Treasurers, an Executive Director and such other
officers as may be elected or appointed in accordance with the provisions of Section 3 of this
Article 5. Any number of offices may be held by the same person except as provided in the
Articles or in these Bylaws and except that neither the Secretary, any Assistant Secretary, the
Treasurer, nor any Assistant Treasurer may serve concurrently as the Executive Director or the
Chair of the Board.
Section 2. Election. The Officers of the Corporation, except the Executive
Director and such other officers as maybe elected or appointed in accordance with the
provisions of Section 3 or Section 5 of this Article 5, shall be chosen annually by, and shall serve
at the pleasure of, the Board, and shall hold their respective offices until their resignation,
removal, or other disqualification from service, or until their respective successors shall be
elected.
Section 3. Subordinate Officers. The Board may elect the Executive Director
and such other Officers as the business of the Corporation may require, each of whom shall hold
office for such period, have such authority, and perform such duties as are provided in these
Bylaws or as the Board may from time to time determine. The Board may empower the Chair of
the Board to appoint such Officers, other than the Executive Director.
Section 4. Removal and Resignation. Any Officer maybe removed, either with
or without cause, by the Board at any time or, except in the case of an Officer chosen by the
Board, by any Officer upon whom such power of removal may be conferred by the Board. Any
such removal shall be without prejudice to the rights, if any, of the Officer under any contract of
employment of the Officer.
Any Officer may resign at any time by giving written notice to the Corporation, but
without prejudice to the rights, if any, of the Corporation under any contract to which the Officer
is a party. Any such resignation shall take effect at the date of the receipt of such notice or at any
later time specified therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause shall be filled in the manner prescribed in these
Bylaws for regular election or appointment to such office, provided that such vacancies shall be
filled as they occur, and not on an annual basis,
Section 6. Chair of the Board. The Chair of the Board shall, if present, preside
at all. meetings of the Board and exercise and perform such other powers and duties as may be
assigned from time to time by the Board. The Chair of the Board must be a Director of the
Corporation. The Chair shall be chosen annually by the Board at the first meeting of the fiscal
year. No one Board member may serve more than two (2) consecutive years as Chair.
Section 7. Executive Director. The Executive Director shall be elected or
appointed, and may be removed, only with the approval of at least seven (7) Directors. Except
for and subject to such powers, if any, as may be given by the Board to the Chair of the Board,
and subject to the Board's determination as to whether the Executive Director shall be an Officer
of the Corporation, the Executive Director shall be the Chief Executive Officer and Chief
Operating Officer of the Corporation and shall have, subject to the control of the Board, general
supervision, direction and control of the day to day business affairs of the Corporation. At the
Board's discretion, the Executive Director. shall have the general powers and duties of
management usually vested in the General Manager of an enterprise and such other powers and
duties as may be prescribed by the Board. The Executive Director shall not be a Director of the
Corporation and need not be an Officer of the Corporation:
Section 8. Vice Chairs. Vice Chairs shall be chosen annually by the Board at the
first meeting of the fiscal year. In the absence or disability of the Chair of the Board, the Vice-
Chairs, if any are appointed, in order of their rank as fixed by the Board or, if not ranked, the
Vice-Chair designated by the Board shall preside at meetings of the Board and shall perform all
the duties of, and be subject to all the restrictions upon, the Chair of the Board. The Vice-Chairs
shall have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board. All Vice-Chairs must be Directors of the
Corporation.
Section 9. Secretary. The Secretary shall be chosen annually by the Board at the
first meeting of the fiscal year. The Secretary shall keep or cause to be kept, at the principal
office or such other place as the Board may order, a book of minutes of all meetings of the Board
and its committees, with the time and place of holding, whether regular or special, and if special;
how authorized, the notice thereof given, the names of those present at Board and committee
meetings, and the proceedings thereof. The Secretary shall keep, or cause to be kept, at the
principal office in the State of California the original or a copy ofthe Corporation's Articles and
Bylaws, as amended to date.
The Secretary shall give, or cause to be given, notice of all meetings of the Board and any
committees thereof required by these Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the Board. In the absence or disability of the Chair of the Board and all
Vice-Chairs, the Secretary shall preside at meetings of the Board if the Secretary is a Director of
the Corporation. The Secretary may but need not be a Director of the Corporation.
Section 10. Chief Financial Officer. The Chief Financial Officer shall be chosen
annually by the Board at the first meeting of the fiscal year. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the
properties and business transactions of the Corporation. The books of account shall at all times
be open to inspection by any Director.
The Chief Financial Officer shall deposit or cause to be deposited, all moneys and other
valuables in the name and to the credit of the Corporation with such depositories as may be
designated by the Board. The Chief Financial Officer shall disburse the funds of the Corporation
as may be ordered by the Board, shall render to the Executive Director and Directors, whenever
they request it, an account of all transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have such other powers and perform such other duties as
maybe prescribed by the Board. In the absence or disability of the Chair of the Board, all Vice-
Chairs and the Secretary, the Chief Financial-0fficer shall preside at meetings of the Board, if
the Chief Financial Officer is a Director of the Corporation. The Chief Financial Officer may but
need not be a Director of the Corporation.
ARTICLE 6. REPORTS, RECORDS AND RIGHTS OF INSPECTION
Section 1. Annual Report to City. Within ninety (90) days after the close of the
Corporation's fiscal year, the Board shall cause an annual report of its operations to be provided
to the City of Santa Monica. Such report shall contain, in appropriate detail, the following:
10
(a) The assets and liabilities, including the trust funds, of the Corporation as
of the end of the fiscal year.
(b) The principal changes in assets and liabilities of the Corporation,
including trust funds, during the fiscal year.
(c) The revenue or receipts of the Corporation, both unrestricted and restricted
to particular purposes, for the fiscal year.
(d) The expenses or disbursements of the Corporation, for both general and
restricted purposes, during the fiscal year.
(e) Any information required by Section 6322 of the California Non-Profit
Public Benefit Corporation Law (pertaining to certain transactions and indemnifications
involving interested persons).
fiscal year.
(f) A narrative description of the Corporation's principal activities during the
(g) Such other information concerning the Corporation as may be requested
by the City Council in writing not less than ninety (90) days preceding the end of such fiscal
year.
Section 2. Records and Rights of Inspection. The Corporation shall keep
adequate and correct books and records of account and minutes of the proceedings of its
Member, the Board and committees of the Board. Minutes shall be kept in written form. Other
books and records shall be kept either in written form or in any form capable of being converted
into written form. The books and records of the Corporation shall be open to inspection and
copying by members of the public to the same extent as the public records of the City of Santa
Monica.
ARTICLE 7. INDEMNIFICATION
Section 1. Statutory Indemnity. This Corporation shall indemnify its Directors,
Officers and employees to the fullest extent permitted by the California Non-Profit Public
Benefit Corporation Law.
Section 2. Non applicability to Fiduciaries of Employee Benefit Plans. This
Article does not apply to any proceeding against any trustee, investment manager, or other
fiduciary of an employee benefit plan in such person's capacity as such, even though such person
may also be an agent of the Corporation as defined in Section 1 of this Article 7. The
Corporation shall have power to indemnify such trustee, investment manager, or other fiduciary
to the extent permitted by subdivision (f) of Section 207 of the California General Corporation
Law.
ARTICLE 8. OTHER PROVISIONS
11
Section 1. Endorsement of Documents; Contracts. Subject to the provisions of
applicable law and these Bylaws, any note, mortgage, evidence of indebtedness, contract,
conveyance; or other instrument in writing and any assignment or endorsement thereof executed
or entered into between the Corporation and any other person, when signed by (a) the Executive
Director, or (b)(i) the Chair of the Board or any Vice Chair and (b)(ii) the Secretary, any
Assistant Secretary, the Chief Financial Officer, oYany Assistant Treasurer of the Corporation
shall be valid and binding on the Corporation in the absence of actual knowledge on the par[ of
the other person that the signing officers had no authority to execute the. same. Any such
instruments may be signed by any other person or persons in such manner as from time to time
shall be determined by the Board, and, unless so authorized by the Board, no officer, agent, or
employee shall have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or amount.
Section 2. Representation of Shares of Other Corporations. The Chair of the
Board or any other Officer or Officers authorized by the Board or the Chair of the Board are each
authorized to vote, represent, and exercise on behalf of the Corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of the Corporation.
The authority herein granted may be exercised either by any such officer in person or by any
other persons authorized so to do by proxy or power of attorney duly executed by said Officer.
Section 3. Construction and Definitions. Unless the context otherwise requires,
the general provisions, rules of construction, and definitions contained in the General Provisions
of the California Nonprofit Corporation Law and in the California Nonprofit Public Benefit
Corporation Law shall govern the construction of these Bylaws.
Section 4. Establishment of Fiscal Year. The fiscal year of this Corporation
shall end on June 30 of each year.
Section 5. Amendments. These Bylaws may be amended or repealed by the
approval of the Board; provided that any amendment or repeal shall have the approval of at least
seven (7) Directors » ................ .....,,,...,, „ .. ~..,, ...., n>,° -:**^ ^i °
..~ wry
a ' a c c c n i ~
THIS IS TO CERTIFY THAT:
That I am the duly elected, qualified and acting Secretary of the Bayside District
Corporation and that the above and foregoing Seeer~dThir Amended and Restated Bylaws were
adopted as the Bylaws of said corporation on the day of ,
2$082009 by the Board of Directors thereof and approved by the Santa Monica City Council on
IN WITNESS WHEREOF, I have hereunto set my hand this day of
~99~2009.
12
Supplemental City Council
Santa Monica°
`"" ~, Report
City Council Meeting: April 14, 2009
~r
!. a
-~
To:
From
Mayor and CityCouncil
Agenda Item: 8-A
Andy Agle, Director of Housing and Economic Development
Subject: Revised Language to Section 14 of the Bayside District Corporation
Amended and Restated Services Agreement, and Revised Language to
Article 3, Section 2 of the Third Amended and Restated By-Laws
Recommended Action
Staff recommends that the City Council include the attached revised Section 14.1(b) in
its approval of the Bayside District Corporation (BDC) Amended and Restated Services
Agreement as well as revised Section 2 of Article 3 language in its approval of the
BDC's Third Amended and Restated By-Laws.
Discussion
Bylaws is that all Directors beecurrentdin their payment ofryspecialgand general
assessments. The Amended and Restated Services Agreement and By-Laws in the
original Council packet .inadvertently referred to only property owners. This version of
the Amended and Restated Services Agreement and Third Amended and Restated By-
Laws addresses the eligibility of representatives of both businesses and property
owners to serve as Directors.
The intent of the revisions to th A
Financial Impacts & Budget Actions
The proposed revision has no financial impact on the City.
Prepared by:
Elana Buegoff, Senior Development Analyst
Forwarded to Council:
Andy Agie, Director
Housing and Economic
AttachmentA
CHANGE TO AMENDED AND RESTATED BY-LAWS
Section 2. Number and Qualification of Directors
(a) The authorized number of Directors shall be thirteen (13) until
changed by amendment of the Articles or by a Bylaw.
(b) A person shall not qualify nor remain as a Director, if that person is
the owner of orooertv or the owner of a business or an agent, representative, employee
or volunteer oft"° c...,,, ~f ;.rcperty cr *„",° ^ .,,~,anv such owner.
responsible for-and not current in payment of special or general benefit assessments,
fees or licenses imposed on such owner's property or business, including assessments,
fees or licenses imposed on property within any of (i) the Downtown Santa Monica
Property Based Assessment District established by the City of Santa Monica pursuant
to Resolution No. 10336 (CCS) on July 24, 2008, as the same may be amended, (ii) the
Third Street Promenade and Downtown District Operation and Maintenance Area
located within asub-area of the "Bayside District" established by the City of Santa
Monica pursuant to Ordinance No. 1382 (CCS) on August 26, 1986, as now and as the
same may be amended, andlor (iii) the Central Business District Business Improvement
Area established by the City of Santa Monica pursuant to Ordinance No. 725 (CCS), as
now and as the same may be amended.
(c) Any sitting Director who fails to remain qualified to serve as a
Director under the provisions of Subsection 2(b) immediately above (herein, an
"Unqualified Director") shall be removed from office by the Board if, within thirty (30)
days after receipt of notice from the Corporation of the circumstance constituting failure
to qualify under Subsection 2(b), such failure is not cured. After expiration of said thirty
(30) day period. without cure, the Unqualified Director shall be given fifteen (15) days
prior notice of his or her removal from the Board and the reasons therefor and an
opportunity for the Unqualified Director to be heard by the Board, orally or in writing, not
less than five (5) days before the effective date of such removal.
CHANGE TO AMENDED AND RESTATED SERVICES AGREEMENT
Section 14.1 (b) of the services agreement that should read as follows:
(b) As a condition precedent to the effectiveness of this Agreement, BDC shalt
amend its By-laws to provide that a person shall not qualify nor remain as a Director, if
that person is the owner of property or the owner of a business or an agent,
representative, employee or volunteer of the any such owner sa ^r^^°.+„ ^: +ti^ ^,•,^^, ^f
y responsible for and not current in payment of special or general benefit
assessments, fees or licenses imposed within the Bayside or Downtown.