SR 05-09-2023 10D
City Council
Report
City Council Meeting: May 9, 2023
Agenda Item: 10.D
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To: Mayor and City Council
From: David Martin, Director, City Planning
Subject: Introduction and First Reading of an Ordinance to Cancel Development
Agreement 13DEV-010 that Allowed Construction of a Multi-Screen Movie
Theater Complex on the Third Level of Santa Monica Place at 315 Colorado
Avenue
Recommended Action
Staff recommends that the City Council:
1. Adopt a finding of no possibility of significant effect pursuant to Section
15061(b)(3) (Common Sense Exemption) of the California Environmental Quali ty
Act (CEQA) Guidelines; and
2. Introduce for first reading an ordinance to cancel Development Agreement
13DEV-010 pertaining to a movie theater complex at Santa Monica Place at 315
Colorado Avenue.
3. Authorize the City Manager to take all necessary implementing actions related to
the cancellation.
Summary
On April 22, 2014 City Council approved Development Agreement (DA) 13DEV-010 to
allow construction of a multi-screen movie theater complex on the third level of Santa
Monica Place at 315 Colorado Avenue, following the Planning Commission’s March 19,
2014 formal review and recommendation of approval. The movie theater was
subsequently built and operated and associated public benefits delivered. The movie
theater ceased operations in 2020 and Macerich, the owner and operator of Santa
Monica Place, anticipates the space will be repurposed for a different use rendering the
Development Agreement obsolete.
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Discussion
A Development Agreement is a contract between the City and a developer that
authorizes the type and amount of development that may occur within a specific period
of time. Development Agreements typically provide developers with guaranteed
development rights in exchange for project and community benefits. While a DA is an
alternative to the standard development agreement process, in practice it is similar to
other public review processes where the City Council makes the final decision with the
exception that the City Council has more discretion in imposing conditions and
requirements on the proposed project since a Development Agreement is voluntarily-
negotiated contract adopted by ordinance.
Santa Monica Municipal Code Chapter 9.60 outlines the procedures and regulations for
Development Agreements. Either the City or Applicant/owner can propose cance llation
of a Development Agreement. Macerich’s formal request is provided as Attachment “A”.
The City Council is required to hold a public hearing and adopt an ordinance to approve,
amend, or cancel a Development Agreement.
The 2014 Development Agreement was necessary at that time to allow for additional
building height to a maximum of 84 feet for the conversion of the then -vacant retail
space on the third floor into a multi-screen movie theater complex. At the time of the
DA’s approval, the City’s Interim Zoning Ordinance (IZO) required the project to be
reviewed through a Development Agreement since the project exceeded the height limit
of the IZO but was within the 84’ height limit allowed by the Land Use and Circulation
Element (LUCE). Since the approval of the Development Agreement, the height limit
has been increased in the Downtown Community Plan (DCP) and if the project were to
be proposed today, the height would be allowed by right and a DA would not be
required.
The Council approved a suite of community benefits with the approval of the DA. The
requirements associated with the physical project and environs were made:
• Colorado Esplanade: a $120,000 contribution for Esplanade improvements,
extension of Esplanade features onto Santa Monica Place property, a $100,000
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contribution towards the Downtown Wayfinding Metro Grant project, and onsite
wayfinding.
• Local Hiring: a program to hire local during construction.
• Sustainable Design: the project was designed to achieve LEED® Gold
certification, the applicant installed photovoltaic panels on the roof, and facilitated
the use of SMURF water for pressure washing of the Esplanade by installing a
connection to the SMURF line.
Some community benefits were specific to a theater and are no longer applicable,
including.
• American Film Market (AFM): making three movie screens available to AFM
during their annual film festival.
• Kiosk on Ground Level: a theater related kiosk on the ground floor of Santa
Monica Place.
Other community benefits expire and alternatives are provided to the developer:
• Local Hiring: Santa Monica Place tenants will have information on how to post to
the Hire Local Jobs Board.
• Transportation Demand Management (TDM): any future employer will be
required to comply with the City’s TDM Ordinance.
The tenant space that was created as a result of the DA has not been used as movie
theater since March 2020. Any new uses of the space will require a separate process to
determine what, if any, discretionary permits are required. Macerich is proposing a new
museum in the tenant space, a permitted use in the DCP’s Transit Adjacent Zone.
In summary, City staff supports Macerich’s request to cancel the Development
Agreement for the following reasons:
1) In 2014, a Development Agreement was required for projects seeking additional
building height as an interim requirement while preparation of the Downtown
Community Plan was in progress. Today’s DCP allows for an 84’ height for
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additions and new construction in the Transit Adjacent Zone without a
Development Agreement.
2) The terms and conditions contained in the 2014 Development Agreement are
structured for a single-purpose movie theater use that is no longer in operation
and therefore restrict the reuse of the vacant tenant space for other permitted
uses identified in the DCP.
3) Key community benefits required by the 2014 Development Agreement were
satisfied concurrently with completion of construction and operation of the movie
theater.
4) Facilitating the reuse of this anchor tenant space for a visitor- and community-
serving immersive art use, or other permitted use, will help support the overall
economic recovery efforts of both the City and private property owners in Santa
Monica’s Downtown.
The Planning Commission reviewed the proposed DA cancellation at its April 19, 2023
meeting. Following a brief discussion regarding whether it would be preferable to amend
the Development Agreement rather than process a cancellation, the Commission
agreed that there are unique factors associated with this site and voted unanimously to
recommend that Council cancel the Agreement.
Environmental Analysis
The proposed zoning regulations are categorically exempt from the provisions of the
California Environmental Quality Act, California Public Resources Code Section 21000
et seq. (CEQA), pursuant to Section 15061(b)(3) of the State Implementation Guidelines
(common sense exemption) as it can be seen with certainty that there is no possibility
that the cancellation of the Development Agreement may have a significant effect on the
environment. Cancellation of the Development Agreement does not affect the building
floor area, height or allowed uses for the existing building and therefore, no further
environmental review under CEQA is required.
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Past Council Actions
Meeting Date Description
April 22, 2014
(Attachment B)
Public hearing approving the Santa Monica Place Cinemas
Development Agreement
Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the
recommended action.
Prepared By: Roxanne Tanemori, Principal Planner
Approved
Forwarded to Council
Attachments:
A. Macerich DA Cancellation Letter Request 3-10-2023
B. SMP Cinemas Council Staff Report 4-22-2014
C. SMP Cinemas Supplemental Council Staff Report 4-22-2014
D. SMP Cinemas Development Agreement - Council Mtg 4-22-14
E. CDD-Ord-Cancellation of SMP Theater DA 050923
F. PowerPoint Presentation
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Packet Pg. 932 Attachment: Macerich DA Cancellation Letter Request 3-10-2023 (5685 : Dissolution of Santa Monica Place Movie Theater Development
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Packet Pg. 933 Attachment: SMP Cinemas Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development Agreement
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Packet Pg. 942 Attachment: SMP Cinemas Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development Agreement
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Packet Pg. 943 Attachment: SMP Cinemas Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development Agreement
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Packet Pg. 945 Attachment: SMP Cinemas Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development Agreement
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Packet Pg. 947 Attachment: SMP Cinemas Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development Agreement
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Packet Pg. 951 Attachment: SMP Cinemas Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development Agreement
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Packet Pg. 952 Attachment: SMP Cinemas Supplemental Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development
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Packet Pg. 953 Attachment: SMP Cinemas Supplemental Council Staff Report 4-22-2014 (5685 : Dissolution of Santa Monica Place Movie Theater Development
Recording Requested By:
City of Santa Monica
When Recorded Mail To:
City of Santa Monica
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, CA 90401
Attention: Senior Land Use Attorney
________________________________________________________________________
Space Above Line For Recorder’s Use
No Recording Fee Required
California Government Code Section 27383
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF SANTA MONICA
AND
MACERICH SMP LP
FOR THE SANTA MONICA PLACE THEATER PROJECT
__________________, 2014
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Packet Pg. 954 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
TABLE OF CONTENTS
Recitals ........................................................................................................................................... 1
Article 1 Definitions.............................................................................................................. 3
Article 2 Description of the Project ...................................................................................... 7
2.1 General Description ............................................................................................... 7
2.2 Principal Components of the Project ..................................................................... 7
2.3 No Change to Gross Leasable Floor Area of Santa Monica Place ........................ 8
2.4 No Obligation to Develop ...................................................................................... 8
2.5 Vested Rights ......................................................................................................... 8
2.6 Permitted Uses .................................................................................................... 10
2.7 Project and Community Benefits ......................................................................... 12
2.8 Design .................................................................................................................. 19
Article 3 Construction ......................................................................................................... 20
3.1 Construction Mitigation Plan ............................................................................... 20
3.2 Construction Hours .............................................................................................. 20
3.3 Outside Building Permit Issuance Date ............................................................... 20
3.4 Construction Period ............................................................................................. 21
3.5 Damage or Destruction ........................................................................................ 21
3.6 Construction Staging ............................................................................................ 21
3.7 Use of Public Right-of-Way and Liquidated Damages Deposit .......................... 21
Article 4 Project Fees, Exactions, Mitigation Measures and Conditions............................ 22
4.1 Fees, Exactions, Mitigation Measures and Conditions ........................................ 22
4.2 Conditions on Modifications................................................................................ 22
4.3 Implementation of Mitigation Measures and Conditions of Approval ................ 22
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Packet Pg. 955 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Article 5 Effect of Agreement on City Laws and Regulations ........................................... 23
5.1 Development Standards for the Property; Existing Regulations ......................... 23
5.2 Permitted Subsequent Code Changes .................................................................. 24
5.3 Common Set of Existing Regulations .................................................................. 25
5.4 Conflicting Enactments ........................................................................................ 26
5.5 Timing of Development ....................................................................................... 26
Article 6 Architectural Review Board ................................................................................ 26
6.1 Architectural Review Board Approval ................................................................ 26
6.2 [Reserved] ............................................................................................................ 26
Article 7 City Technical Permits ......................................................................................... 27
7.1 Definitions............................................................................................................ 27
7.2 Diligent Action by City ........................................................................................ 27
7.3 Conditions for Diligent Action by the City.......................................................... 27
7.4 Duration of Technical City Permits ..................................................................... 28
7.5 Applicable Building Code.................................................................................... 28
Article 8 Amendment and Modification ............................................................................. 28
8.1 Amendment and Modification of Development Agreement ............................... 28
Article 9 Term ..................................................................................................................... 29
9.1 Effective Date ...................................................................................................... 29
9.2 Term ..................................................................................................................... 29
Article 10 Periodic Review of Compliance ................................................................................ 29
10.1 City Review ......................................................................................................... 29
10.2 Evidence of Good Faith Compliance ................................................................... 29
10.3 Information to be Provided to Developer ............................................................ 30
10.4 Notice of Breach; Cure Rights ............................................................................. 30
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Packet Pg. 956 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
10.5 Failure of Periodic Review .................................................................................. 30
10.6 Termination of Development Agreement ............................................................ 30
10.7 City Cost Recovery .............................................................................................. 30
Article 11 Default.................................................................................................................. 31
11.1 Notice and Cure ................................................................................................... 31
11.2 Remedies for Monetary Default........................................................................... 31
11.3 Remedies for Non-Monetary Default .................................................................. 32
11.4 Modification or Termination Agreement by City ................................................ 34
11.5 Cessation of Rights and Obligations .................................................................... 35
11.6 Completion of Improvements .............................................................................. 35
Article 12 Mortgagees ........................................................................................................... 35
12.1 Encumbrances on the Property ............................................................................ 35
12.2 Theater Operator’s Notice and Cure Rights ......................................................... 37
Article 13 Transfers and Assignments .................................................................................. 38
13.1 Transfers and Assignments .................................................................................. 38
13.2 Release Upon Transfer ......................................................................................... 38
Article 14 Indemnity to City ................................................................................................. 39
14.1 Indemnity ............................................................................................................. 39
14.2 City’s Right to Defense ........................................................................................ 39
Article 15 General Provisions ............................................................................................... 39
15.1 Notices ................................................................................................................. 39
15.2 Entire Agreement; Conflicts ................................................................................ 40
15.3 Binding Effect ...................................................................................................... 41
15.4 Agreement Not for Benefit of Third Parties ........................................................ 41
15.5 No Partnership or Joint Venture .......................................................................... 41
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Packet Pg. 957 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
15.6 Estoppel Certificates ............................................................................................ 41
15.7 Time ..................................................................................................................... 42
15.8 Excusable Delays ................................................................................................. 42
15.9 Governing Law .................................................................................................... 43
15.10 Cooperation in Event of Legal Challenge to Agreement ..................................... 43
15.11 Attorneys’ Fees .................................................................................................... 43
15.12 Recordation .......................................................................................................... 43
15.13 No Waiver ............................................................................................................ 43
15.14 Construction of this Agreement ........................................................................... 44
15.15 Other Governmental Approvals ........................................................................... 44
15.16 Venue .................................................................................................................. 45
15.17 Exhibits ................................................................................................................ 45
15.18 Counterpart Signatures......................................................................................... 46
15.19 Certificate of Performance ................................................................................... 46
15.20 Interests of Developer .......................................................................................... 46
15.21 Operating Memoranda ......................................................................................... 46
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer ......... 46
15.23 Not a Public Dedication ....................................................................................... 47
15.24 Other Agreements ................................................................................................ 47
15.24 Severability and Termination ............................................................................... 48
Exhibit “A” Legal Description of Property
Exhibit “B” Project Plans
Exhibit “C” Permitted Fees and Exactions
Exhibit “D” Mitigation Measures and Conditions of Approval
Exhibit “E” SMMC Article 9 (Planning and Zoning)
Exhibit “F-1” Local Hiring Program for Construction
Exhibit “F-2” Local Hiring Program for Permanent Employment
Exhibit “G-1” Map of Work Area
Exhibit “G-2” Construction Drawings for Work
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Packet Pg. 958 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Exhibit “H” Construction Mitigation Plan
Exhibit “I” Assignment and Assumption Agreement
Exhibit “J” Conditions for Sale of Alcoholic Beverages
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Packet Pg. 959 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
DEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”), dated ____________, 2014
(“Effective Date”), is entered into by and between MACERICH SMP LP , a Delaware
limited partnership (“Developer”), and the CITY OF SANTA MONICA, a municipal
corporation organized and existing pursuant to the laws of the State of California and the
Charter of the City of Santa Monica (the “City”), with reference to the following facts:
RECITALS
A. Pursuant to California Government Code Section 65864 et seq., Chapter
9.48 of the Santa Monica Municipal Code, and Santa Monica Interim Ordinance No.
2356, as extended and modified, (collectively, the “Development Agreement Statutes”),
the City is authorized to enter into binding development agreements with persons or
entities having a legal or equitable interest in real property for the development of such
real property.
B. Developer is the owner of approximately 10 acres of land located in the
City of Santa Monica, State of California developed with shopping center with
approximately 586,453 square feet of retail uses, commonly known as Santa Monica
Place, as more particularly described in Exhibit “A” attached hereto and incorporated
herein by this reference (the “Property”).
C. The City has included the Property within the Downtown Core land use
designation under the City’s Land Use and Circulation Element of its General Plan (the
“LUCE”). The Property is located within the C3C District under the City’s Zoning
Ordinance. To aid in the redevelopment of the Property, the City and Developer desire to
allow Developer to convert approximately 50,000 square feet of entitled but vacant retail
space on the 3rd Level of the Bloomingdale’s Building within Santa Monica Place into a
multi-screen cinema complex with up to 13 movie theaters and a seating capacity of up to
1,500 seats, as more fully described in this Agreement (the “Project”).
D. On October 15, 2013, Developer filed an application for a Development
Agreement, pursuant to Santa Monica Municipal Code (“SMMC”) Section 9.48.020 (the
“Development Application”). The Development Application was designated by the City
as Application No. DEV 13-010. The Development Application is for the Project, as
more fully described in this Agreement.
E. On April 26, 2011, the City Council adopted Interim Ordinance No. 2356
(“IZO”). The City Council extended and/or modified the IZO on several occasions
thereafter. The IZO prohibits the issuance of permits for development projects that would
constitute a Tier 2 or Tier 3 project, as established pursuant to LUCE Chapter 2.1, or that
would exceed 32 feet in height in the Downtown Core, as delineated in the Land Use
Designation Map approved by the City Council on July 6, 2010, unless developed
pursuant to a development agreement adopted in accordance with SMMC Chapter 9.48.
Adoption of this Agreement will allow for the issuance of permits for the Project.
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Packet Pg. 960 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
F. Developer has paid all necessary costs and fees associated with the City’s
processing of the Development Application and this Agreement.
G. Following filing of the Development Application, the City prepared and
made available public review and comment a mitigated negative declaration (the
“MND”) pursuant to the California Environmental Quality Act (“CEQA”).
H. The primary purpose of the Project is to allow for the conversion of
existing vacant retail space in Santa Monica Place into a high quality modern movie
theater with features that are competitive in the regional marketplace, such as 3-D
technology and stadium-style seating, to help the City to compete better for movie goers.
The Parties desire to enter into this Agreement in conformance with the Development
Agreement Statutes in order to achieve the development of the Project on the Property.
I. The City Council has determined that a development agreement is
appropriate for the proposed development of the Property. This Agreement will (1)
eliminate uncertainty in planning for the Project and result in the orderly development of
the Project, (2) assure installation of necessary improvements on the Property, (3) provide
for public infrastructure and services appropriate to development of the Project, (4)
preserve substantial City discretion in reviewing subsequent development of the Property,
(5) secure for the City improvements that benefit the public, (6) ensure the provisions of
community benefits as envisioned in the LUCE, and (7) otherwise achieve the goals and
purposes for which the Development Agreement Statutes were enacted.
J. This Agreement is consistent with the public health, safety, and welfare
needs of the residents of the City and the surrounding region. The City has specifically
considered and approved the impact and benefits of the development of the Project on the
Property in accordance with this Agreement upon the welfare of the region. The Project
will provide a number of public benefits, including without limitation the following:
• Consistent with LUCE Policy D.11 and Goal LU6, contribute to Downtown
Santa Monica’s role as a dynamic and vibrant activity center by providing
modern high quality entertainment uses.
• Consistent with LUCE Policy D1.2, develop a new modern high quality
movie theater with 3-D technology and stadium-style seating that will ensure
that entertainment venues in Downtown Santa Monica are competitive in the
regional marketplace.
• Reduce vehicle trips by developing a movie theater in Downtown Santa
Monica in close proximity to the future Exposition Light Rail station and
within walking/biking distance of local residents and visitor-serving uses such
as hotels.
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Packet Pg. 961 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
• Reduce vehicle miles traveled by locating a modern high quality movie
theater in a convenient location for local residents so that they do not have to
drive to comparable destinations outside the City.
• Provide a destination entertainment venue adjacent to the Third Street
Promenade that will attract movie patrons who will also eat and shop on in the
area.
• Generating additional direct and indirect sales tax revenues for the City.
• Generating new jobs during construction and operation.
K. The City Council has found that the provisions of this Development
Agreement are consistent with the relevant provisions of the City’s General Plan,
including the LUCE.
L. On __________, 2014, the City’s Planning Commission held a duly
noticed public hearing on the Development Application, this Agreement and the MND,
and at such hearing, the Planning Commission recommended adoption of the MND. The
Commission recommended [DETAIL RECOMMENDATIONS]
M. On ___________, 2014, the City Council held a duly noticed public
hearing on the Development Application, this Agreement and at such hearing the City
adopted the MND and introduced Ordinance No. _____ for first reading, approving this
Agreement.
O. On ____________, 2014, the City Council adopted Ordinance No.
______, approving this Agreement.
NOW THEREFORE, in consideration for the covenants and conditions
hereinafter set forth, the Parties hereto do hereby agree as follows:
ARTICLE 1
DEFINITIONS
The terms defined below have the meanings in this Agreement as set forth below
unless the Agreement expressly requires otherwise:
1.1 “Agreement” means this Development Agreement entered into between
the City and Developer as of the Effective Date.
1.2 “ARB” means the City’s Architectural Review Board.
1.3 “Building Height” has the meaning as defined in Zoning Ordinance
Section 9.04.10.02.030.
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Packet Pg. 962 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
1.4 “Assumption Agreement” has the meaning set forth in Section 13.2,
below.
1.5 “Breach” has the same meaning set forth under Section 11.1.1, below.
1.6 “CEQA” means the California Environmental Quality Act.
1.7 “City” means the City of Santa Monica.
1.8 “City Council” means the City Council of the City of Santa Monica, or its
designee.
1.9 “City General Plan” or “General Plan” means the General Plan of the
City of Santa Monica, and all elements thereof including the LUCE, as of the Effective
Date unless otherwise indicated in this Agreement.
1.10 “City Indemnified Parties” has the meaning set forth in Section 14.1,
below.
1.11 “City Parties” means the City, its City Council, boards and commissions,
departments, officers, agents, employees, volunteers and other representatives.
1.12 “Commissioning Authority” has the meaning set forth in Section
2.7.8(b)(ii), below.
1.13 “Damages” has the meaning set forth in Section 14.1, below.
1.14 “Developer” means Macerich SMP LP , a Delaware limited partnership.
1.15 “Developer Parties” has the meaning set forth in Section 14.1, below.
1.16 “Development Agreement Statutes” has the meaning set forth in Recital
A.
1.17 “Development Application” has the meaning set forth in Recital D.
1.18 “Discretionary Approvals” are actions which require the exercise of
judgment or a discretionary decision, and which contemplate and authorize the
imposition of revisions or additional conditions, by the City, including any board,
commission, or department of the City and any officer or employee of the City.
Discretionary Approvals do not include Ministerial Approvals.
1.19 “Effective Date” has the meaning set forth in Section 9.1, below.
1.20 “Estoppel Certificate” has the meaning set forth in Section 15.6, below.
1.21 “Event of Monetary Default” has the meaning set forth in Section 11.2,
below.
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Packet Pg. 963 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
1.22 “Event of Non-Monetary Default” has the meaning set forth in Section
11.3.1, below.
1.23 “Excusable Delays” has the meaning set forth in Section 15.8.1, below.
1.24 “Existing Regulations” has the meaning set forth in Section 5.1.1(a),
below.
1.25 “Extension Notice Date” has the meaning set forth in Section 3.3, below.
1.26 “Floor Area” has the meaning set forth in Section 2.8(a), below.
1.27 “Floor Area Ratio” and FAR” means floor area ratio as defined in
Section 9.04.02.030.320 of the Zoning Ordinance.
1.28 “Hearing Notice” has the meaning set forth in Section 11.4.2(a), below.
1.29 “Including” means “including, but not limited to.”
1.30 “LEED® Rating System” means the Leadership in Energy and
Environmental Design (LEED®) for Commercial Interiors Rating System adopted by the
U.S. Green Building Council and implemented by the Green Building Certification
Institute in effect at the time of ARB submittal. In the event no such system exists at the
time Developer submits for ARB approval, an alternative green building rating system
may be selected by the Developer subject to approval by the City.
1.31 “Legal Action” means any action in law or equity.
1.31 “Lounge Area” has the meaning set forth in Section 2.2, below.
1.32 “Major Modification” has the meaning set forth in Section 2.5.3, below.
1.33 “Ministerial Approvals” mean any action which merely requires the City
(including any board, commission, or department of the City and any officer or employee
of the City), in the process of approving or disapproving a permit or other entitlement, to
determine whether there has been compliance with applicable statutes, ordinances,
regulations, or conditions of approval.
1.34 “Minor Modifications” has the meaning set forth in Section 2.5.2, below.
1.35 “MND” has the meaning set forth in Recital G.
1.36 “Mortgage” has the meaning set forth in Section 12.1, below.
1.37 “Notice of Breach” has the meaning set forth in Section 11.1.1.
1.38 “Other Public Presentations” has the meaning set forth the meaning set
forth in Section 2.6.1, below.
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Packet Pg. 964 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
1.39 “Outside Project Permit Issuance Date” has the meaning set forth in
Section 3.3, below.
1.40 “Parking Garage No. 8” means the parking structure located at the
northeast corner of 2nd St. and Colorado Avenue.
1.41 “Parties” mean both the City and Developer and “Party” means either
the City or Developer, as applicable.
1.42 “Periodic Review” has the meaning set forth is Section 10.1, below.
1.43 “Planning Director” means the Planning Director of the City of Santa
Monica, or his or her designee.
1.44 “Project” means the development project described herein and reflected
on the Project Plans.
1.45 “Project Plans” mean the plans for the Project that are attached to this
Agreement as Exhibit “B.”
1.46 “Property” has the meaning set forth in Recital B.
1.47 “Property Transferee” has the meaning set forth in Section 13.1.2 below.
1.48 “Request for Notice” has the meaning set forth in Section 12.1.3(a)
below.
1.49 “Secured Lender” has the meaning set forth in Section 12.1, below.
1.50 “Secured Lender’s Cure Period” has the meaning set forth in Section
12.1.3(b), below.
1.51 “SMMC” means the Santa Monica Municipal Code.
1.52 “Subsequent Code Changes” has the meaning set forth in Section 5.2.1,
below.
1.53 “Technical City Permits” has the meaning set forth in Section 7.1.1,
below.
1.54 “Technical Codes” has the meaning set forth in Section 7.3.2(d), below.
1.55 “Technical Permit Applications” has the meaning set forth in Section
7.1.2, below.
1.56 “Term” has the meaning set forth in Section 9.2.1.
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1.57 “Termination Certificate” has the meaning set forth in Section 9.2.2,
below.
1.58 “Theater” has the meaning set forth in Section 2.2, below.
1.59 “Theater Operator” means the operator of the Theater.
1.60 “Vested Rights” has the meaning set forth in Section 2.5.5, below.
1.61 “Zoning Ordinance” means the City of Santa Monica Comprehensive
Land Use and Zoning Ordinance (Chapter 9.04 of the SMMC), and any applicable
Interim Zoning Ordinance, as the same are in effect on the Effective Date, is set forth in
its entirety as part of Exhibit “E” (Planning and Zoning).
ARTICLE 2
DESCRIPTION OF THE PROJECT
2.1 General Description. The Project includes all aspects of the proposed
development of the Property as more particularly described in this Agreement and on the
Project Plans. If there is a conflict or inconsistency between the text of this Agreement
and the Project Plans, the Project Plans shall prevail; provided, however, that omissions
from the Project Plans shall not constitute a conflict or inconsistency with the text of this
Agreement.
2.2 Principal Components of the Project. The Project consists of the following
principal components, as well as the other components delineated in the Project Plans, all
of which are hereby approved by the City subject to the other provisions of this
Agreement: The conversion of approximately 50,000 square feet of existing entitled but
vacant retail space on the 3rd level of the Bloomingdale’s building located on the
Property into a multi-screen movie theater complex with up to thirteen (13) screens, up to
1500 seats (including stadium style seating), related ticketing, lobby and concession
space (collectively, the “Theater”). No additional floor area will be added. The Project
may also include bar/café/retail space and/or a lounge area (“Lounge Area”), each with
food and beverage service, including alcoholic beverages. Figure 11B of the Project Plans
illustrates the conceptual layout of the Project with the Lounge Area. Alternatively, the
Lounge Area could be used for additional Theater space or Theater concession areas,
depending upon the needs of the Theater Operator. Figure 11A of the Project Plans
illustrates the conceptual layout of the Project without the Lounge Area. To
accommodate the Theater, the existing roof of the Bloomingdale’s building will be raised
by up to approximately 36 feet, from a current height of 48 feet, to up to approximately
84 feet above existing grade. Subject to certain conditions set forth in Section B of
Exhibit “D”, the Project may include two (2) rooftop satellite dish antennas, which may
both receive (i.e., downlink) and transmit (i.e., uplink) and which may exceed the height
of the roof by an additional six (6) feet.
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2.3 No Change to Gross Leasable Floor Area of Santa Monica Place. The Project
will maintain the total gross leasable Floor Area and Floor Area Ratio entitled for Santa
Monica Place in accordance with Administrative Approval 07-AA-005, dated September
26, 2007.
2.4 No Obligation to Develop.
2.4.1 Except as specifically provided herein:
(a) Nothing in this Agreement shall be construed to
require Developer to proceed with the construction of the Project or any portion
thereof.
(b) The decision to proceed or to forbear or delay in
proceeding with construction of the Project or any portion thereof shall be in
Developer’s sole discretion.
(c) Failure by Developer to proceed with construction
of the Project or any portion thereof shall not give rise to any liability, claim for
damages or cause of action against Developer, except as may arise pursuant to a
nuisance abatement proceeding under SMMC Chapter 8.96, or any successor
legislation.
2.4.2 Failure by Developer to proceed with construction of the
Project or any portion thereof shall not result in any loss or diminution of development
rights, except upon expiration or termination of this Agreement.
2.4.3 Notwithstanding any provision of Section 2.4 to the
contrary, Developer shall be required to implement all mitigation measures and
conditions of approval required under this Agreement in accordance with Exhibit “D”. If
Developer has proceeded with the construction of the Project, the mitigation measures
and conditions of approval in Exhibit “D” shall survive termination of this Agreement
(except as otherwise expressly limited in this Agreement), and notice of the mitigation
measures and conditions shall be recorded separately from and concurrently with this
Agreement.
2.5 Vested Rights.
2.5.1 Approval of Project Plans. The City hereby approves the
Project Plans. The City shall maintain a complete copy of the Project Plans, stamped
“Approved” by the City, in the Office of the City Clerk, and Developer shall maintain a
complete copy of the Project Plans, stamped “Approved” by the City, in its offices or at
the Project site. The Project Plans to be maintained by the City and Developer shall be in
a half-size set. Further detailed plans for the construction of the Project and
improvements, including, without limitation, structural plans and working drawings shall
be prepared by Developer subsequent to the Effective Date based upon the Project Plans.
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2.5.2 Minor Modifications to Project. Developer, with the approval of
the Planning Director, may make minor changes to the Project or Project Plans (“Minor
Modifications”) without amending this Agreement; provided that the Planning Director
makes the following specific findings that the Minor Modifications: (i) are consistent
with the Project’s approvals as approved by the City Council; (ii) are consistent with the
provisions, purposes and goals of this Agreement; (iii) are not detrimental to the public
health, safety, convenience or general welfare; and (iv) will not significantly and
adversely affect the public benefits associated with the Project. The Planning Director
shall notify the Planning Commission in writing of any Minor Modifications approved
pursuant to this Section 2.5.2. City agrees that the installation on the roof of any antennas
(including satellite dish antennas), which may receive (i.e., downlink) and/or transmit
(i.e., uplink), any equipment, or any other theater-related items, that the Planning Director
determines in the exercise of reasonable discretion: (a) are reasonably necessary for the
operation of the Theater, (b) reasonably must extend more than 84 feet above existing
grade and to their proposed height, and (c) are not otherwise allowed as exceptions to, or
exceed the height exceptions of, Building Height pursuant to Zoning Ordinance Section
9.04.10.02.030, may be processed as Minor Modifications. Any proposed change which
the Planning Director denies as not qualifying for a Minor Modification based on the
above findings must be processed as a Major Modification.
2.5.3 Modifications Requiring Amendment to this Agreement.
Developer shall not make any “Major Modifications” (defined below) to the Project
without first amending this Agreement to permit such Major Modifications. A “Major
Modification” means the following:
(a) Any change in use not consistent with the
permitted uses defined in Section 2.6, below;
(b) Any increase in the number of Theater seats
above 1500 or any decrease in the number of Theater seats below 800;
(c) Any change in the number of Theater auditoriums
below ten (10) or above thirteen (13).
(d) Any variation in the design, massing or building
configuration, including but not limited to, Floor Area and the Project’s
Building Height (except as permitted as a Minor Modification pursuant to
Section 2.5.2), that renders such aspects out of substantial compliance with the
Project Plans after ARB approval; and
(e) Any change that would substantially reduce or
alter the community benefits as set forth in Section 2.7.
If a proposed modification does not exceed the Major Modification
thresholds established above, then the proposed modification may be reviewed in
accordance with Section 2.5.2.
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2.5.4 City Consent to Modification. The Planning Director shall
not unreasonably withhold, condition, or delay his or her approval of a request for such
Minor Modification. The City may impose fees, exactions, conditions, and mitigation
measures in connection with its approval of a Minor or Major Modification, subject to
any applicable law. Notwithstanding anything to the contrary herein or in the Existing
Regulations, if the Planning Director approves a Minor Modification or if the City
approves a Major Modification (and the corresponding amendment to this Agreement for
such Major Modification), as the case may be, Developer shall not be required to obtain
any other Discretionary Approvals for such modification, except for ARB approval, in
the case of certain Major Modifications. Notwithstanding anything to the contrary
contained herein, the Developer’s election to construct the Theater with the Lounge Area
as depicted in Figure 11B of the Project Plans or construct the Theater without the
Lounge Area in accordance with Figure A of the Project shall not require City’s consent
or approval, other than ARB approval (if required) and the City’s normal ministerial
building permit requirements.
2.5.5 Right to Develop. Subject to the provisions of Section 3.3,
below, during the Term (as defined in Section 9.2, below) of this Development
Agreement, Developer shall have the vested rights (the “Vested Rights”) to (a) develop
and construct the Project in accordance with the following: (i) the Project Plans (as the
same may be modified from time to time in accordance with this Agreement); (ii) any
Minor Modifications approved in accordance with Section 2.5.2; (iii) any Major
Modifications which are approved pursuant to Section 2.5.3; and (iv) the requirements
and obligations of Developer related to the improvements which are specifically set forth
in this Agreement, and (b) use and occupy the Project for the permitted uses set forth in
Section 2.6. Except for any required approvals from the ARB pursuant to Section 6.1 of
this Agreement, the City shall have no further discretion over the elements of the Project
which have been delineated in the Project Plans (as the same may be modified from time
to time in accordance with this Agreement).
2.6 Permitted Uses.
2.6.1 Permitted Uses. The City approves the following permitted uses
for the Project: (a) a movie theater and entertainment center with stadium seating for the
presentation of movies and films, live and pre-recorded telecasts, closed circuit, satellite
or other televised or syndicated broadcasts (whether live or via delayed feed or other
technological means), and other audio-visual presentations (such as, but not limited to,
sports, music, concerts, opera and comedy), that, in all cases, may be in large screen
and/or 3D format and such other formats as may evolve in the industry; (b) in-theater
dining and/or beverage service (including, subject to compliance with all laws, the sale of
alcoholic beverages); (c) the conducting of meetings and Other Public Presentations, as
defined below (d) on-screen recreational interactive gaming; (e) various other forms of
retail, restaurant, service and entertainment purposes supportive of the movie theater and
entertainment center concepts (as all of the foregoing, including the movie theater and
entertainment center concepts, may expand, change and/or evolve over time through
technology or otherwise with the evolution of the entertainment industry); (f) ancillary
uses, including (1) the retail sale of food, beverages and refreshments, including, subject
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to compliance with all laws, alcoholic beverages, (2) the sale or rental (or both) of DVDs
or other entertainment content delivery formats (or the technological evolution of the
foregoing) relating to the movie and/or entertainment industry, (3) the sale of compact
discs or other entertainment content delivery formats (or the technological evolution of
the foregoing) relating to the movie and/or entertainment industry, books, magazines,
toys and novelties related to the movie and/or entertainment industry, (4) the sale of other
goods, wares, merchandise, services and amenities ancillary to the primary uses, (5) the
delivery of ancillary services customarily found in first class movie theater facilities,
including, but not limited to, the selling of tickets and other admissions, debit cards or
memberships, the lending of silent pagers, assistive listening devices, closed captioning
devices or other devices intended to heighten the enjoyment of patrons, and other similar
concierge-type services, whether complimentary or for a fee; and (6) the operation of not
more than seven (7) games and other amusement devices (electronic or otherwise)
typically found in theaters comparable to the theaters. Developer will not show
pornographic movies (i.e., those in violation of laws) or those movies typically shown in
a so-called “adult movie theater,” as such term is commonly understood as of the
Effective Date; and (g) the logical evolution (whether technological or otherwise) of any
of the foregoing uses. As used herein, the term “Other Public Presentations” means the
following types of public presentations and entertainment: (i) stage performances for
sporting, industry, corporate and/or community events; (ii) rentals of auditoriums to third
parties for meetings, political fund raisers, church services, birthday parties and other
such activities; (iii) the presentation of film-related and non-film-related subject matter,
including electronic, live, physical, and interactive audio and video exhibits, displays and
devices; and (iv) conducting of movie-themed promotions.
2.6.2 Alcoholic Beverage Permits.
(a) In the event that the Developer or the Theater Operator
desires to dispense for sale or other consideration, alcoholic beverages, including beer,
wine, malt beverages, and distilled spirits for on-site consumption in the Theater or
Lounge Area, a conditional use permit shall be required pursuant to SMMC Section
9.04.10.18, unless the Developer or Theater Operator complies with the terms and
conditions in Section 2.6.2(b), below. Notwithstanding the foregoing, the Developer or
the Theater Operator may apply for a conditional use permit pursuant to SMMC Section
9.04.10.18 in order to sell alcoholic beverages for on-site consumption on terms other
than those set forth in Section 2.6.2 (b), below.
(b) The sale of alcoholic beverages including beer, wine, malt
beverages, and distilled spirits incidental to the operation of the Theater, including within
the Theater and associated Lounge Area, shall be exempt from the provisions of SMMC
Section 9.04.10.18 if the operator thereof submits a written agreement to the Planning
Director agreeing to comply with the terms and conditions set forth in Exhibit “J “, and
the Developer shall cause the applicable lease to contain a clause that requires the tenant
to comply with such terms and conditions. Notice of these conditions shall be recorded
separately from and concurrently with this Agreement.
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(c) A conditional use permit pursuant to SMMC Section
9.04.10.18 shall be required for any proposed use in the Project that (1) includes the
service or sale of alcoholic beverages, and (2) does not comply with the conditions set
forth in Exhibit “J”. Notwithstanding the foregoing, no conditional use permit shall be
required for catered events for which permits then required for such events are obtained.
This Section 2.6.2 shall survive the expiration of the Term of this Agreement and shall
remain binding on Developer, its successors and assigns, and shall continue in effect for
the life of the Project.
2.7 Project and Community Benefits. The Project will provide the following
project and community benefits:
2.7.1 Concurrently with the execution of this Agreement,
Developer shall make a $20,820 contribution to reimburse the City for Developer’s share
of design costs for improvements to the Esplanade that extend beyond the City’s right of
way on Colorado Avenue onto the Property.
2.7.2 Developer shall install the portion of the Esplanade that
extends onto the Property (“Work”). Developer shall complete the Work in accordance
with Exhibit “G-1” and Exhibit “G-2” and the City’s approved final plans (to be provided
to Developer when complete). Developer shall coordinate the Work with the City
contractor’s work in the right of way to meet the City’s overall schedule for completion
of the Esplanade in the right of way and have the Work completed before the opening of
the Expo Light Rail Project. Developer shall construct the Work so that there is a
seamless transition to the City’s work in the right of way. For example, where a paver or
decking board straddles the property line between the right of way and the Property,
Developer shall completely replace the board or paver spanning onto the City’s right of
way. If necessary, Developer shall provide temporary transitions to the Property if the
grades of the Esplanade work in the right of way do not meet the grades of existing
improvements on the Property. Prior to commencing any Work in the right of way,
Developer shall obtain a right of entry permit to enter upon and complete the Work in the
right-of-way.
2.7.3 Concurrently with execution of this Agreement, the
Developer shall make a $120,000 contribution to the City for improvements to the
Esplanade in the City’s right of way on Colorado Avenue.
2.7.4 On or before the issuance of a building permit for the
Project, the Developer shall make a $100,000 contribution to the City for its Downtown
Wayfinding Metro Grant project that will coordinate wayfinding design between Santa
Monica Place, Metro, Big Blue Bus and Downtown Santa Monica, Inc. Developer shall
also install wayfinding signs in Santa Monica Place to direct members of the public to
areas outside Santa Monica Place, including Santa Monica Pier and the 3rd Street
Promenade, at a cost not to exceed $50,000 and within thirty (30) days of City's issuance
of a temporary certificate of occupancy for the Project. 2.7.5 The Developer shall
cause the Theater Operator to make up to three (3) movie screens available to the
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American Film Market (“AFM”) during AFM’s annual film festival to screen movies
featured in this festival, subject to Theater Operator’s customary terms and conditions for
such use, including payment and executing a license agreement satisfactory to Theater
Operator.
2.7.6 To promote pedestrian circulation in Santa Monica Place,
the Developer shall provide information regarding, and/or a kiosk for, the sale of movie
theaters tickets on the ground level of Santa Monica Place.
2.7.7 Local Hiring. A local hiring program shall be implemented
within the Project in accordance with Exhibits “F-1” and “F-2”. In connection with the
local hiring program, Developer shall conduct at least one on-site job fair targeted
towards recruitment of local resident candidates for employment providing services to the
Theater, including the Lounge Area, if any, at least fourteen (14) days before recruitment
is opened up to general circulation for the initial hiring by the Theater Operator. This on-
site job fair shall be promoted locally in the same manner as is specified in Exhibit F-2.
Furthermore, at least sixty (60) days before recruitment is opened up to general
circulation for the initial hiring by the Theater Operator, Developer shall prepare and
submit to the City’s Planning Director for review and approval a written local hiring
program consistent with the obligations under this Agreement. The approved local hiring
plan may be amended from time to time thereafter, subject to the Planning Director’s
review and approval. The satisfactory completion of any local hiring obligations under
this Section 2.7.6 by the Theater Operator shall be deemed to satisfy the Developer’s
obligations under this Section 2.7.6, as if performed by Developer.
2.7.8 Transportation Demand Management. Developer shall
adopt and implement the following Transportation Demand Management Plan (“TDM
Plan”) for the Project:
(a) AVR Standards. Developer shall achieve an average
vehicle ridership (“AVR”) of 2.0 for the Project, commencing from one year after the
earlier of City’s issuance of a temporary certificate of occupancy for the Project or
opening of the Theater to the public; provided, however, that if the Exposition Light Rail
Line is not then fully operational, then the AVR target shall be 1.75 until the Fourth
Street Station for the Exposition Light Rail Line is fully operational. SMMC Chapter
9.16 shall govern how the AVR is calculated, except that notwithstanding SMMC Section
9.16.070(d)(4)((B), a Zero Emission Vehicle (“ZEV”) shall be counted as a vehicle for
purposes of calculating the AVR. Developer will determine its AVR through employee
surveys over five consecutive days each calendar year beginning the first year the Theater
opens for business. Developer shall submit such baseline survey to the City at the time of
submittal of its annual compliance report for this Agreement. The City shall monitor the
TDM Plan performance as part of the City’s Periodic Review for the Project. If during
any annual evaluation of the Project’s employee trip reduction plan, the AVR
requirement has not been achieved for the Project, then Developer shall propose
modifications to the TDM Plan that Developer considers likely to achieve the AVR
requirement by the date of the next annual evaluation of the Project’s employee trip
reduction plan. In addition, the City’s Planning Director may recommend feasible
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modifications to the TDM Plan, including, without limitation, that Developer shall make
available to all employees providing on-site services to the Theater, including the Lounge
Area on a continuing basis a Metro EZ public transit pass (or equivalent multi-agency
monthly transit pass) at a subsidized rate of no less than 50% of the cost of the transit
pass. Failure to achieve the AVR standards as provided in this Section will not constitute
a Default within the meaning of the Agreement, so long as Developer is in compliance
with the TDM Plan. The satisfactory completion of any TDM obligations under this
subparagraph (a) by the Theater Operator shall be deemed to satisfy the Developer’s
obligations as if performed by Developer.
For purposes of determining AVR, the survey must be conducted and AVR
calculated in accordance with SMMC 9.16.070(d)(2)(1), except to the extent modified by
this Agreement below:
The survey must be taken over five consecutive days
during which the majority of employees are scheduled to
arrive at or leave the worksite. The days chosen cannot
contain a holiday and cannot occur during ‘Rideshare
Week’ or other ‘event’ weeks (i.e., Bicycle Week, Walk to
Work Week, Transit Week, etc.). This survey must have a
minimum response rate of seventy-five percent of
employees who report to or leave work between six a.m.
and ten a.m., inclusive, and seventy-five percent of
employees who report to or leave work between three p.m.
and seven p.m., inclusive. Employers that achieve a ninety
percent or better survey response rate for the a.m. or p.m.
window may count the ‘no-survey responses’ as ‘other’
when calculating their AVR . . .
* * *
The procedure for calculating AVR at a worksite shall be as
follows:
(A) The AVR calculation shall be based on data
obtained from an employee survey as defined in SMMC
Section 9.16.070(d)(2).
(B) AVR shall be calculated by dividing the
number of employees who report to or leave the worksite
by the number of vehicles arriving at or leaving the
worksite during the peak periods. All employees who
report to or leave the worksite that are not accounted for by
the employee survey shall be calculated as one employee
per vehicle arriving at or leaving the worksite. Employees
walking, bicycling, telecommuting, using public transit, or
on their day off under a recognized compressed work week
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schedule shall be counted as employees arriving at or
leaving the worksite without vehicles. Motorcycles shall be
counted as vehicles.
(C) A child or student may be calculated in the
AVR as an additional passenger in the carpool/vanpool if
the child or student travels in the car/van to a worksite or
school/childcare facility for the majority (at least fifty-one
percent) of the total commute.
(D) If two or more employees from different
employers commute in the same vehicle, each employer
must account for a proportional share of the vehicle
consistent with the number of employees that employer has
in the vehicle.
(E) Any employee dropped off at a worksite
shall count as arriving in a carpool only if the driver of the
carpool is continuing on to his/her worksite.
(F) Any employee telecommuting at home, off-
site, or at a telecommuting center for a full work day,
eliminating the trip to work or reducing the total travel
distance by at least fifty-one percent shall be calculated as
if the employee arrived at the worksite in no vehicle.
Furthermore, the definition of AVR contained in SMMC Section 9.16.030, as written on
the Effective Date, shall govern how AVR is calculated. That definition reads, as follows:
“The total number of employees who report to or leave the worksite or another
job-related activity during the peak periods, divided by the number of vehicles driven by
these employees over that five-day period. The AVR calculation requires that the five-
day period must represent the five days during which the majority of employees are
scheduled to arrive at the worksite. The hours and days chosen must be consecutive. The
averaging period cannot contain a holiday and shall represent a normal situation so that a
projection of the average vehicle ridership during the year is obtained.”
(b) TDM Plan Program Elements. The specific program
elements of the TDM program for the Project are as follows:
(i) Transportation Demand Management
Association. Developer shall be required to participate in the establishment of a
geographic-based Transportation Demand Management Association (TMA) that may be
defined by the City. TMAs provide employees, businesses and visitors of an area with
resources to increase the amount of trips taken by transit, walking, bicycling, and
ridesharing. If the City adopts a requirement that a TMA be formed for this geographic
area, Developer shall attend organizational meetings and provide traffic demand data to
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the TMA. Developer shall require the Theater Operator to participate as members in the
TMA and ensure that all leases and operating agreements for the Project contain this
same provision. The Developer and Theater Operator shall actively participate in the on-
going activities of any such TMA. Developer may elect to provide some or all of the
services required by this subparagraph (i) through the TMA, in consultation with the
City’s Transportation Demand Program manager
(ii) Employee Transportation Coordinator. An
Employee Transportation Coordinator (ETC) shall be designated for this Project by
Developer. The ETC may be an employee of Theater Operator. The ETC shall manage all
aspects of this TDM program and participate in the local TMA that may be established by
the City, City-sponsored workshops and information roundtables. The ETC shall be
responsible for actively encouraging and making available informational materials on
options for alternative transportation modes and opportunities. The ETC shall contact
each employee at the point of hire and at least once per year thereafter with an offer of
personalized commute assistance, including, but not limited to: (a) making available to
each new employee a Metro EZ public transit pass (or equivalent multi-agency monthly
transit pass) valid every day for the first three months of the new employee’s employment
(offered during the first three months of employment only) to establish on-going ridership
habits (see subsection 2.7.7.1(b)(vi) below), (b) providing guidance on routes to use, (c)
providing information concerning light rail transit, (d) providing information about
carpool and vanpool formation, (e) providing information concerning bus routes, and (f)
facilitating a discussion of any other transit-related benefits that may be available. The
ETC shall also promote non-drive-alone options to employees by providing onsite
information, including a newsletter, at least two events per year (e.g., Rideshare Week
and Bike Week) and occasional marketing activities such as contests and raffles. The
ETC shall coordinate with nearby employers to facilitate more effective carpool/vanpool
matching, events and promotions. In addition, transit fare media will be made available
for purchase through the ETC to employees during typical business hours. Employee
Transportation Coordinator services may be provided through the TMA contemplated in
subsection 2.7.7(b)(i), above. The ETC shall be available to assist Project employees by
(a) providing guidance on routes to use, (b) providing information related to light rail
transit, (c) providing information related to bus routes, and (d) facilitating a discussion of
any other transit-related benefits that may be available.
(iii) Transportation Information Center.
Developer shall ensure that information is available on-site for on-site employees of
Theater Operator about local public transit services (including bus lines, light rail lines,
bus fare programs, ride share programs and shuttles) and bicycle facilities (including
routes, rental and sales locations, on-site bicycle racks and showers.) Developer shall
further ensure that the Theater Operator also makes information available to Theater
patrons about transit and light rail opportunities, carshare, rideshare, shopping locally,
and bike and walking routes, by posting a link to a City-maintained website containing
such information on the Theater Operator’s website. Developer shall further ensure the
Theater Operator also makes walking and biking maps (produced and provided by the
City or City’s designee at no cost to Developer or Theater Operator) available for
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employees, which shall include but not be limited to information about convenient public
transit stops, local services, and restaurants within walking distance of the Project.
(iv) Rideshare Matching Service. Developer
shall provide information to all Project employees regarding a rideshare matching service
at least once per year to assist employees in finding carpool/vanpool opportunities (i.e.,
through a service such as RideMatch (www.ridematch.info)) and/or require the Theater
Operator and Project tenants to participate in Metro’s CommuteSmart.info website.
Rideshare matching services may be provided through the TMA contemplated in
subsection 2.7.7(b)(i), above.
(vi) Transit Subsidies for Project Employees.
Developer shall cause Theater Operator to provide, on an on-going basis, a twenty-five
percent (25%) reimbursement of the cost of one monthly public transit pass, up to a
maximum of twenty-five percent (25%) of the cost of a monthly Metro EZ public transit
pass, to each Project employee of Theater Operator who provides proof of purchase of
such pass, but only for so long as the employee remains employed by Theater Operator at
the Project; provided, however, that Theater Operator may opt out of this requirement if
the AVR standards in Section 2.7.8(a) above are being met.
(vii) Changes to TDM Program. Subject to
approval by the City’s Planning Director, the Developer may modify this TDM program
provided the TDM program, as modified, can be demonstrated as equal or superior in its
effectiveness at mitigating the traffic-generating effects of this Project. Any of the
modifications to the TDM program proposed by Developer (or proposed by the Planning
Director and agreed to by the Developer) to help the Project achieve the applicable AVR
standard shall be subject to the reasonable approval by the City’s Planning Director as a
Minor Modification.
(c) Annual Report. As part of the annual compliance
review described in Article 10, below, Developer shall report to the City on the status of
the TDM program implementation, usage and results.
(d) New TDM Ordinance. If the City adopts a new
ordinance of general application that updates or replaces Chapter 9.16 of the SMMC and
that applies to the geographic area in which the Property is located (“New TDM
Ordinance”), then, subject to the Planning Director’s approval in his or her sole and
absolute discretion, Developer may elect to comply with the New TDM Ordinance in lieu
of complying with the TDM Plan outlined in this Agreement.
2.7.9 Sustainable Design Features. Developer shall design the
Project so that, at a minimum, the Project shall achieve LEED® “Gold” certification by
the Green Building Certification Institute under the LEED® Rating System (the
“Sustainable Design Status”). Developer shall confirm to the City that the design for the
Project has achieved the Sustainable Design Status in accordance with the following
requirements:
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(a) Prior to the submission of plans and documents to
the City for Architectural Review Board review for the Project, the Developer shall
submit for review by the City a preliminary checklist of anticipated LEED® credits along
with a narrative describing the project’s sustainable features to demonstrate that the
Project is likely to achieve the Sustainable Design Status.
(b) Prior to submittal of the plan check application for
the Project, Developer shall:
(i) Submit for review by the City an updated
checklist of anticipated LEED® credits along with a narrative describing the project’s
sustainable features to demonstrate that the Project is likely to achieve the Sustainable
Design Status.
(ii) Retain the services of a third party,
independent individual designated to organize, lead, and review the completion of the
process of verifying and documenting that a building and all of its systems and
assemblies are planned, designed, installed, and tested to meet the Project’s requirements
(the “Commissioning Authority”).
(iii) Submit a Commissioning Plan which
includes the elements specified in California Code of Regulations Title 24, Part 11,
Section 5.410.2.3.
(c) Prior to issuance of a final Certificate of Occupancy
for the Project (but not a prerequisite to issuance of a temporary Certificate of Occupancy
to allow the Project to open for business), the City shall verify (which verification shall
not be unreasonably withheld, conditioned or delayed) that the Developer has submitted
an application to the Green Building Certification Institute for LEED® “Gold”
certification. Provided such application has been received by the Green Building
Certification Institute and is being processed, the Final Certificate of Occupancy for the
Project shall not be withheld or delayed based on the failure to receive certification of the
Sustainable Design Status.
(d) After the City’s issuance of a final Certificate of
Occupancy for the Project and after Developer has opened the Project or any portions
thereof to the public, Developer shall be obligated to diligently pursue a determination
from the Green Building Certification Institute on such application.
(e) If the Project is ultimately denied certification for
the Sustainable Design Status by the Green Building Certification Institute and the
Developer has exhausted all administrative remedies and appeals of that denial, then the
Developer shall be subject to a fine in the amount of two dollars ($2.00) per square foot
of Floor Area. This fine may be waived if the City at its sole discretion determines that
the Developer made a good faith effort to achieve and meet the intent of the Sustainable
Design Status. Alternatively, the fine may be waived if the Developer commits to
pursuing all necessary steps for the Project to achieve certification to the “Gold” level
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under the LEED ® Existing Projects Operations and Maintenance (LEED EBOM) rating
system no later than 3 years after the Certificate of Occupancy was issued for the Project.
If the Developer fails to obtain this certification within this time period, the fine shall be
reimposed and immediately payable to City.
2.7.10 Renewable Energy. In order to maximize renewable energy
opportunities for this Project, Developer shall install photovoltaic panels on the Project’s
roof in accordance with the roof solar plan included in the Project Plans; provided
however, the City's Office of Sustainability and the Environment shall verify that, to the
extent technically feasible, the maximum area of the roof is utilized for such panels.
Developer shall add additional photovoltaic panels beyond those shown on the roof solar
plan if the City's Office of Sustainability and the Environment determines that such
additional panels are technically feasible, taking into account such factors as shading,
spacing, and the need to locate other equipment on the rooftop. Areas of the roof
available and appropriate for solar systems placement shall exclude any areas (a)
necessary or required for rooftop equipment, (b) any roof areas reasonably necessary for
building or equipment maintenance, Fire Department access, and/or other applicable
code, legally-mandated or otherwise reasonably necessary access and/or clearances, or (c)
in which solar installations would interfere with Theater Operator’s use or operation of
any satellite dishes (or any transmission or reception operations thereof) or impair
Theater Operator’s use or quiet enjoyment of the Project for the permitted uses set forth
herein. Such panels shall not be counted in the determination of the maximum height of
the Project.
2.7.11 SMURF Connection. On or before the issuance of a
certificate of occupancy for the Project, Developer shall install a water connection on the
Property to enable the City’s use of SMURF water for pressure washers on the
Esplanade.
2.7.12 Close Captioning. Each theater shall have close captioning
capability.
2.7.13 Community Use of Theaters. Developer shall cause
Theater Operator to make theater auditoriums available to community groups during off-
peak days and hours (as reasonably determined by Theater Operator), at commercially
reasonable rental rates, and subject to reasonable use terms, rules and restrictions, all as
determined and established by Theater Operator in its sole discretion.
2.8 Design.
(a) Floor Area. “Floor Area” shall have the meaning set forth in Section
9.04.02.030.315 of the Zoning Ordinance, which is in effect on the Effective Date.
(b) Project Building Height. The maximum Building Height of the
Bloomingdale’s building on the Property shall be as set forth on the Project Plans, and in
no event in excess of 78 feet Building Height for 50% of the roof area and 84 feet
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Building Height for 50% of the roof area, exclusive of the permitted projections set forth
in the next paragraph.
(c) Permitted Projections. Projections, including the photovoltaic panels,
satellite dish antennas, and rooftop equipment, shall be permitted as reflected on the
Project Plans, subject to any conditions set forth in Section B of Exhibit “D”.
(d) Signage. All signs on the Property shall be subject to Chapter 9.52 of
the SMMC (Santa Monica Sign Code) in effect as of the Effective Date, a copy of which
is set forth in its entirety in Exhibit “E”; provided, however, the Project may maintain
exterior signage at the third level. Directional signs for vehicles shall be located at
approaches to driveways as required by the City’s Strategic Transportation Planning
Division. The location, size, materials, and color of any signage shall be reviewed by the
ARB (or the Planning Commission on appeal) in accordance with the procedures set
forth in Section 6.1 of this Agreement.
(e) Parking. As the Project is located in an existing shopping center with
adequate parking, no additional parking is required for the Project.
ARTICLE 3
CONSTRUCTION
3.1 Construction Mitigation Plan. During the construction phase of the Project,
Developer shall comply with the Construction Mitigation Plan attached as Exhibit “H”
hereto.
3.2 Construction Hours. Developer shall be permitted to perform construction
between the hours of 7:00 a.m. to 12:00 a.m., subject to the conditions set forth in
Exhibit “D”. Monday through Friday, and 9:00 a.m. to 5:00 p.m. Saturday; provided that
interior construction work which does not generate noise of more than thirty (30)
decibels beyond the Property line may also be performed between the hours of 7:00 a.m.
to 8:00 a.m. and 6:00 p.m. to 7:00 p.m. Monday through Friday, and 8:00 a.m. to 9:00
a.m. and 5:00 p.m. to 6:00 p.m. Saturday. Notwithstanding the foregoing, pursuant to
SMMC Section 4.12.110(e), Developer has the right to seek a permit from the City
authorizing construction activity during the times otherwise prohibited by this Section.
3.3 Outside Project Permit Issuance Date. If Developer has not been issued a
building permit for the Project by the “Outside Project Permit Issuance Date” (defined
below), then on the day after the Outside Project Permit Issuance Date, without any
further action by either Party, this Agreement shall automatically terminate and be of no
further force or effect. For purposes of clarity, if Developer has not been issued a
building permit for the Project by the Outside Project Permit Issuance Date, the City shall
not be required to pursue its remedies under Section 11.4 of this Agreement, and this
Agreement shall, instead, automatically terminate. “Outside Project Permit Issuance
Date” means the date that is the last day of the sixtieth (60th) full calendar month after the
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Effective Date; provided that the Outside Project Permit Issuance Date may be extended
by applicable Excusable Delays and otherwise in accordance with the remainder of this
paragraph. If the approval by the ARB of the Project design does not occur within four
(4) months of the submittal by Developer to the ARB of the Project design, then the
Outside Project Permit Issuance Date shall be extended one month for each additional
month greater than four that the final ARB approval is delayed. At any time after the last
day of the fifty-seventh (57th) full calendar month after the Effective Date (the
“Extension Notice Date”), Developer may deliver written notice to the Planning
Director, requesting an extension of the Outside Project Permit Issuance Date for an
additional twelve (12) months. The Outside Project Permit Issuance Date may be
administratively extended not more than two (2) times for an additional twelve (12)
months per extension. The Planning Director shall grant such extension if Developer can
demonstrate substantial progress has been made towards obtaining a building permit and
show reasonable cause why Developer will not be able to obtain the building permit for
the Project by the initial Outside Project Permit Issuance Date and can demonstrate that:
(a) the condition of the Property will not adversely affect public health or safety; and (b)
the continued delay will not create any unreasonable visual or physical detriment to the
neighborhood.
Notwithstanding anything to the contrary in this Agreement, if Developer obtains
building permits for the Project and, at any time after the Outside Project Permit Issuance
Date, such building permits expire or are revoked pursuant to the applicable terms of the
SMMC (as the same may be amended from time to time), then Developer may not
subsequently apply for new building permits for the Project without first obtaining the
prior written consent of the Planning Director, which may be granted or withheld in the
Planning Director’s sole discretion.
3.4 Construction Period. Construction of the Project shall be subject to the
provisions of SMMC Section 8.08.070.
3.5 Damage or Destruction. If the Project, or any part thereof, is damaged or
destroyed during the term of this Agreement, Developer shall be entitled to reconstruct
the Project in accordance with this Agreement if: (a) Developer obtains a building permit
for this reconstruction prior to the expiration of this Agreement; and (b) the Project is
found to be consistent with the City’s General Plan and any applicable Specific Plan in
effect at the time of obtaining the building permit provided, however, that nothing in this
Section 3.5 shall be deemed to impair such Developer's rights under the City's Zoning
Ordinance, as it exists at the time, to reconstruct non-conforming buildings.
3.6 Construction Staging. Developer may use the upper level of Parking Garage
No. 8 for construction staging; provided, however, that all construction staging areas
shall be restored for public parking use prior to the opening of the Theater to the public.
3.7 . Use of Public Right-of-Way and Liquidated Damages Deposit. Developer
shall coordinate with City to use the public rights of way adjacent to Santa Monica Place
on Colorado Avenue and 4th Street during construction of the Project in a manner that
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does not unreasonably interfere with the City’s installation of the Esplanade on Colorado
Avenue.
Notwithstanding anything to the contrary herein, Developer acknowledges and agrees
that the placement and/or use of Developer's or its contractor(s)' construction equipment
and materials in the public right of way (collectively, "Developer's Construction
Materials"), including, without limitation, a crane, after the City has issued a notice to
proceed to its contractor to construct the Esplanade in the public right of way adjacent to
the Santa Monica Place mall, will unreasonably interfere with the City's installation of
the Esplanade on Colorado Avenue. Consequently, Developer shall deposit with the City
a cashier's check, or equivalent liquid security acceptable to the City, in the amount of
[$300,000] as a condition precedent to obtaining a building permit for the Project (“Cost
Recovery Deposit”). The Cost Recovery Deposit will not earn interest and is intended to
be used for the reimbursement of any delay and/or other compensable damages assessed
against the City by the City's contractor due to the placement of the Developer's
Construction Materials in the public right of way. Unused or unobligated portions of the
Cost Recovery Deposit remaining at the time of completion of the City's Esplanade
installation, if any, will be reimbursed to Developer upon completion of the City's
project.
ARTICLE 4
PROJECT FEES, EXACTIONS, MITIGATION MEASURES
AND CONDITIONS
4.1 Fees, Exactions, Mitigation Measures and Conditions. Except as expressly set
forth in Section 2.7 (relating to Community Benefits), Section 4.2 (relating to
modifications), and Section 5.2 (relating to Subsequent Code Changes) below, the City
shall charge and impose only those fees, exactions, mitigation measures, conditions, and
standards of construction set forth in this Agreement, including Exhibits “C”, “D” and “I”
attached hereto, and no others. If any of the mitigation measures or conditions set forth
on Exhibit “D” is satisfied by others, Developer shall be deemed to have satisfied such
measures or conditions. The City acknowledges and agrees that because the Project
involves only the conversion of existing entitled retail space and not the construction of
new Floor Area, the Project is not subject to the Childcare Linkage Program (SMMC
Chapter 9.72), the Transportation Impact Fee (SMMC Chapter 9.73), or developer school
fee (Government Code Section 65995) requirements. Notwithstanding anything in the
Existing Regulations to the contrary, the Project’s cultural arts in lieu contribution
(SMMC Section SMMC Section 9.04.10.20.120) shall be due and payable upon issuance
of a building permit for the tenant improvements for the Theater Operator and not the
building permit for the Project’s shell and core, electrical, mechanical, or plumbing.
4.2 Conditions on Modifications. The City may impose fees, exactions,
mitigation measures and conditions in connection with its approval of Minor or Major
Modifications, provided that all fees, exactions, mitigation measures and conditions shall
be in accordance with any applicable law.
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4.3 Implementation of Mitigation Measures and Conditions of Approval.
4.3.1 Compliance with Mitigation Measures and Conditions of
Approval. Developer shall be responsible for implementing the mitigation measures set
forth in Section A of Exhibit “D” attached hereto, and Developer shall be responsible to
adhere to the conditions of approval set forth in Section B of Exhibit “D” in accordance
with the timelines established in Exhibit “D”.
4.3.2 Survival of Mitigation Measures and Conditions of
Approval. If Developer proceeds with the construction of the Project, except as otherwise
expressly limited in this Agreement, the obligations and requirements imposed by the
mitigation measures and conditions of approval set forth in the attached Exhibit “D” shall
survive the expiration of the Term of this Agreement and shall remain binding on
Developer, its successors and assigns, and shall continue in effect for the life of the
Project. Notice of the mitigation measures and conditions of approval shall be recorded
by the City separately and concurrently with this Agreement.
ARTICLE 5
EFFECT OF AGREEMENT ON CITY LAWS AND REGULATIONS
5.1 Development Standards for the Property; Existing Regulations. The following
development standards and restrictions set forth in this Section 5.1 govern the use and
development of the Project and shall constitute the Existing Regulations, except as
otherwise expressly required by this Agreement.
5.1.1 Defined Terms. The following terms shall have the
meanings set forth below:
(a) “Existing Regulations” collectively means all of the
following which are in force and effect as of the Effective Date: (i) the General Plan
(including, without limitation, the LUCE); (ii) the Zoning Ordinance except as modified
herein; (iii) the IZO; (iv) any and all ordinances, rules, regulations, standards,
specifications and official policies of the City governing, regulating or affecting the
demolition, grading, design, development, building, construction, occupancy or use of
buildings and improvements or any exactions therefore, except as amended by this
Agreement; and (v) the development standards and procedures in Article 2 of this
Agreement.
(b) “Subsequent Code Changes” collectively means all of the
following which are adopted or approved subsequent to the Effective Date, whether such
adoption or approval is by the City Council, any department, division, office, board,
commission or other agency of the City, by the people of the City through charter
amendment, referendum, initiative or other ballot measure, or by any other method or
procedure: (i) any amendments, revisions, additions or deletions to the Existing
Regulations; or (ii) new codes, ordinances, rules, regulations, standards, specifications
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and official policies of the City governing or affecting the grading, design, development,
construction, occupancy or use of buildings or improvements or any exactions therefor.
“Subsequent Code Changes” includes, without limitation, any amendments, revisions or
additions to the Existing Regulations imposing or requiring the payment of any fee,
special assessment or tax.
5.1.2 Existing Regulations Govern the Project. Except as
provided in Section 5.2, development of the Projects and improvements that will
comprise the Project, including without limitation, the development standards for the
demolition, grading, design, development, construction, occupancy or use of such
Projects and improvements, and any exactions therefor, shall be governed by the Existing
Regulations. The City agrees that this Agreement is consistent with the General Plan,
including the LUCE, as more fully described in the Recitals. Any provisions of the
Existing Regulations inconsistent with the provisions of this Agreement, to the extent of
such inconsistencies and not further, are hereby deemed modified to that extent necessary
to effectuate the provisions of this Agreement. The Project shall be exempt from: (a) all
Discretionary Approvals or review by the City or any agency or body thereof, other than
the matters of architectural review by the ARB as specified in Section 6.1 and review of
modifications to the Project as expressly set forth in Sections 2.5.2 and 2.5.3; (b) the
application of any subsequent local development or building moratoria, development or
building rationing systems or other restrictions on development which would adversely
affect the rate, timing, or phasing of construction of the Project, whether adopted by the
City Council or through the initiative process or otherwise; and (c) Subsequent Code
Changes which are inconsistent with this Agreement.
5.2 Permitted Subsequent Code Changes.
5.2.1 Applicable Subsequent Code Changes. Notwithstanding the
terms of Section 5.1, this Agreement shall not prevent the City from applying to the
Project the following Subsequent Code Changes set forth below in this Section 5.2.1.
(a) Processing fees and charges imposed by the City to cover
the estimated actual costs to City of processing applications for development approvals
including: (i) all application, permit, and processing fees incurred for the processing of
this Agreement, any administrative approval of a Minor Modification, or any amendment
of this Agreement in connection with a Major Modification; (ii) all building plan check
and building inspection fees for work on the Property in effect at the time an application
for a grading permit or building permit is applied for; and (iii) the public works plan
check fee and public works inspection fee for public improvements constructed and
installed by Developer and (iv) fees for monitoring compliance with any development
approvals, or any environmental impact mitigation measures; provided that such fees and
charges are uniformly imposed by the City at similar stages of project development on all
similar applications and for all similar monitoring.
(b) General or special taxes, including, but not limited to,
property taxes, sales taxes, parcel taxes, transient occupancy taxes, business taxes, which
may be applied to the Property or to businesses occupying the Property; provided that (i)
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the tax is of general applicability City-wide and does not burden the Property
disproportionately to other similar developments within the City; and (ii) the tax is not a
levy, assessment, fee or tax imposed for the purpose of funding public or private
improvements on other property located within the Downtown Core District (as defined
in the City’s LUCE as of the Effective Date).
(c) Procedural regulations relating to hearing bodies, petitions,
applications, notices, documentation of findings, records, manner in which hearings are
conducted, reports, recommendations, initiation of appeals, and any other matters of
procedure; provided such regulations are uniformly imposed by the City on all matters,
do not result in any unreasonable decision-making delays and do not affect the
substantive findings by the City in approving this Agreement or as otherwise established
in this Agreement.
(d) [Intentionally omitted.]
(e) Any City regulations to which Developer has consented in
writing.
(f) Collection of such fees or exactions as are imposed and set
by governmental entities not controlled by City but which are required to be collected by
City.
(g) Regulations which do not impair the rights and approvals
granted to Developer under this Agreement. For the purposes of this Section 5.2.1(g),
regulations which impair Developer’s rights or approvals include, but are not limited to,
regulations which (i) materially increase the cost of the Project (except as provided in
Section 5.2.1(a) and (b) above), (ii) materially delay development of the Project or cause
a material change in the uses of the Project as provided in this Agreement; or (iii)
materially impair the development, operation, or use of the Theater.
5.2.2 New Rules and Regulations. This Agreement shall not be
construed to prevent the City from applying new rules, regulations and policies in those
circumstances specified in Government Code Section 65866.
5.2.3 State or Federal Laws. In the event that state or federal laws
or regulations, enacted after the Effective Date, prevent or preclude compliance with one
or more of the provisions of this Agreement, such provisions of this Agreement shall be
modified or suspended as may be necessary to comply with such state or federal laws or
regulations; provided that this Agreement shall remain in full force and effect to the
extent it is not inconsistent with such laws or regulations and to the extent such laws or
regulations do not render such remaining provisions impractical to enforce.
5.3 Common Set of Existing Regulations. Prior to the Effective Date, the City
and Developer shall use reasonable efforts to identify, assemble and copy three identical
sets of the Existing Regulations, to be retained by the City and Developer, so that if it
becomes necessary in the future to refer to any of the Existing Regulations, there will be
a common set of the Existing Regulations available to all Parties.
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5.4 Conflicting Enactments. Except as provided in Section 5.2 above, any
Subsequent Code Change which would conflict in any way with or be more restrictive
than the Existing Regulations shall not be applied by the City to any part of the Property.
Developer may, in its sole discretion, give the City written notice of its election to have
any Subsequent Code Change applied to such portion of the Property as it may have an
interest in, in which case such Subsequent Code Change shall be deemed to be an
Existing Regulation insofar as that portion of the Property is concerned. If there is any
conflict or inconsistency between the terms and conditions of this Agreement and the
Existing Regulations, the terms and conditions of this Agreement shall control.
5.5 Timing of Development. The California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in
that case to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over the parties’ agreement. It is the
intent of Developer and the City to cure that deficiency by expressly acknowledging and
providing that any Subsequent Code Change that purports to limit over time the rate or
timing of development or to alter the sequencing of development phases (whether
adopted or imposed by the City Council or through the initiative or referendum process)
shall not apply to the Property or the Project and shall not prevail over this Agreement. In
particular, but without limiting any of the foregoing, no numerical restriction shall be
placed by the City on the amount of total square feet or the number of buildings,
structures, residential units that can be built each year on the Property except as expressly
provided in this Agreement.
ARTICLE 6
ARCHITECTURAL REVIEW BOARD/COASTAL DEVELOPMENT PERMIT
6.1 Architectural Review Board Approval. The Project shall be subject to review
and approval or conditional approval by the ARB in accordance with design review
procedures in effect under the Existing Regulations. Consistent with Existing
Regulations, the ARB cannot require modifications to the building design which negates
the fundamental development standards established by this Agreement. For example, the
ARB cannot require reduction in the overall height of the Project, reduction in the
number of stories in the Project, or reduction in Floor Area from the Project. Decisions of
the ARB are appealable to the Planning Commission in accordance with the Existing
Regulations.
6.2 Coastal Development Permit. City acknowledges and agrees that Developer
may apply to the California Coastal Commission for a coastal development permit prior
to obtaining ARB approval; provided, however, that ARB approval must be received
prior to any action taken by the California Coastal Commission.
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ARTICLE 7
CITY TECHNICAL PERMITS
7.1 Definitions. For purposes of this Agreement, the following terms shall have
the meanings set forth below:
7.1.1 “Technical City Permits” means any Ministerial Approvals,
consents or permits from the City or any office, board, commission, department, division
or agency of the City, which are necessary for the actual construction of the Project or
any portion thereof in accordance with the Project Site Plan and this Agreement.
Technical City Permits include, without limitation (a) building permits, (b) related
mechanical, electrical, plumbing and other technical permits, (c) demolition, excavation
and grading permits, (d) encroachment permits, and (e) temporary and final certificates of
occupancy.
7.1.2 “Technical Permit Applications” means any applications
required to be filed by Developer for any Technical City Permits.
7.2 Diligent Action by City.
7.2.1 Upon satisfaction of the conditions set forth in Section 7.3,
the City shall accept the Technical Permit Applications filed by Developer with the City
and shall diligently proceed to process such Technical Permit Applications to completion.
7.2.2 Upon satisfaction of the conditions set forth in Section 7.3,
the City shall diligently issue the Technical City Permits which are the subject of the
Technical Permit Applications.
7.3 Conditions for Diligent Action by the City.
7.3.1 Acceptance and Processing of Technical Permit
Applications. The obligation of the City to accept and diligently process the Technical
Permit Applications which are filed by Developer, and then issue the Technical City
Permits, is subject to the satisfaction of the following conditions:
(a) Developer shall have completed and filed all Technical
Permit Applications which are required under the administrative procedures and policies
of the City which are in effect on the date when the Technical Permit Application is filed;
provided that such procedures and policies are uniformly in force and effect throughout
the City;
(b) Developer shall have paid all processing and permit fees
established by the City in connection with the filing and processing of any Technical
Permit Application which are in effect on the date when the Technical Permit Application
is filed; provided that such fees are uniformly in force and effect throughout the City; and
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(c) If required for the particular Technical Permit Application,
Developer shall have obtained the approval of the ARB referred to in Section 6.1 above.
7.3.2 Issuance of a Technical City Permit. The obligation of the
City to issue a Technical City Permit which is the subject of a Technical Permit
Application filed by Developer is subject to the satisfaction of the following conditions
(and only such conditions and no others):
(a) Developer shall have complied with all of its obligations
under this Agreement which are required to be performed prior to or concurrent with the
issuance of the Technical City Permits for the Project;
(b) Developer shall have received any permits or approvals
from other governmental agencies which are required by law to be issued prior to or
concurrent with the issuance of the Technical City Permits for the Project;
(c) The Project conforms to the development standards
established in this Agreement. In the event that the Project is not in conformance with the
development standards, Developer shall have the right to seek any relief from such
standards under the procedures then available in the City; and
(d) The proposed Projects conform to the applicable
Administrative and Technical Construction Codes of the City (Article VIII, Chapter 1 of
the Santa Monica Municipal Code) (the “Technical Codes”).
7.4 Duration of Technical City Permits. The duration of Technical City Permits
issued by the City, and any extensions of the time period during which such Technical
City Permits remain valid, shall be established in accordance with the Technical Codes in
effect at the time that the Technical City Permits are issued. Subject to Section 3.3, the
lapse or expiration of a Technical City Permit shall not preclude or impair Developer
from subsequently filing another Technical Permit Application for the same matter
during the Term of this Agreement, which shall be processed by the City in accordance
with the provisions of this ARTICLE 7.
7.5 Applicable Building Code. The City acknowledges and agrees that (a)
Developer has submitted shell and core plans for the Project that are being checked under
the 2010 California Building Code and any applicable local amendments; therefore, the
Project Plans and Technical City Permits are only subject to and shall be processed under
such Code and local amendments, and (b) the Project is not a High-Rise.
ARTICLE 8
AMENDMENT AND MODIFICATION
8.1 Amendment and Modification of Development Agreement. Subject to the
notice and hearing requirements of the applicable Development Agreement Statutes, this
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Agreement may be modified or amended from time to time only with the written consent
of Developer and the City or their successors and assigns in accordance with the
provisions of the SMMC and Section 65868 of the California Government Code.
ARTICLE 9
TERM
9.1 Effective Date. This Agreement shall be dated, and the obligations of the
Parties hereunder shall be effective as of the date upon which the ordinance approving
this Agreement becomes effective (the “Effective Date”). The Parties shall execute this
Agreement within ten (10) working days of the Effective Date.
9.2 Term.
9.2.1 Term of Agreement. The term of this Agreement shall
commence on the Effective Date and shall continue for twenty (20) years thereafter (the
“Term”), unless the Term is otherwise terminated pursuant to Section 11.4, after the
satisfaction of all applicable public hearing and related procedural requirements or
pursuant to Section 3.3.
9.2.2 Termination Certificate. Upon termination of this
Agreement, the Parties hereto shall execute an appropriate certificate of termination in
recordable form (a “Termination Certificate”), which shall be recorded in the official
records of Los Angeles County.
9.2.3 Effect of Termination. Except as expressly provided herein
(e.g., Section 4.3.2), none of the parties’ respective rights and obligations under this
Agreement shall survive the Term.
ARTICLE 10
PERIODIC REVIEW OF COMPLIANCE
10.1 City Review. The City shall review compliance with this Development
Agreement once each year, on or before March 31st (each, a “Periodic Review”), in
accordance with this Article 10 in order to determine whether or not Developer is out-of-
compliance with any specific term or provision of this Agreement.
10.2 Evidence of Good Faith Compliance. On or before October 1st of each
year, Developer shall deliver to the City a written report demonstrating that Developer
has been in good faith compliance with this Agreement during the twelve (12) month
period prior to the anniversary of the Effective Date. The written report shall be provided
in the form established by the City. For purposes of this Agreement, the phrase “good
faith compliance” shall mean the following: (a) compliance by Developer with the
requirements of the Existing Regulations, except as otherwise modified by this
Agreement; and (b) compliance by Developer with the terms and conditions of this
Agreement, subject to the existence of any specified Excusable Delays (as defined in
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Section 15.8, below) which prevented or delayed the timely performance by Developer of
any of its obligations under this Agreement.
10.3 Information to be Provided to Developer. Prior to any public hearing
concerning the Periodic Review of this Agreement, the City shall deliver to Developer a
copy of all staff reports prepared in connection with a Periodic Review, written
comments from the public and, to the extent practical, all related exhibits concerning
such Periodic Review. If the City delivers to Developer a Notice of Breach pursuant to
Section 11.1.1, below, the City shall concurrently deliver to Developer a copy of all staff
reports prepared in connection with such Notice of Breach, all written comments from the
public and all related exhibits concerning such Notice of Breach.
10.4 Notice of Breach; Cure Rights. If during any Periodic Review, the City
reasonably concludes on the basis of substantial evidence that Developer has not
demonstrated that it is in good faith compliance with this Agreement, then the City may
issue and deliver to Developer a written Notice of Breach pursuant to Section 11.1.1,
below, and Developer shall have the opportunity to cure the default identified in the
Notice of Breach during the cure periods and in the manner provided by Section 11.2 and
Section 11.3, as applicable.
10.5 Failure of Periodic Review. The City’s failure to review at least annually
compliance by Developer with the terms and conditions of this Agreement shall not
constitute or be asserted by any Party as a breach by any other Party of this Agreement.
10.6 Termination of Development Agreement. If Developer fails to timely cure
any item(s) of non-compliance set forth in a Notice of Default, then the City shall have
the right but not the obligation to initiate proceedings for the purpose of terminating this
Agreement pursuant to Section 11.4, below.
10.7 City Cost Recovery. Following completion of each Periodic Review,
Developer shall reimburse the City for its actual and reasonable costs incurred in
connection with such review.
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ARTICLE 11
DEFAULT
11.1 Notice and Cure.
11.1.1 Breach. If either Party fails to substantially perform any
term, covenant or condition of this Agreement which is required on its part to be
performed (a “Breach”), the non-defaulting Party shall have those rights and remedies
provided in this Agreement; provided that such non-defaulting Party has first sent a
written notice of Breach (a “Notice of Breach”), in the manner required by Section 15.1,
specifying the precise nature of the alleged Breach (including references to pertinent
Sections of this Agreement and the Existing Regulations or Subsequent Code Changes
alleged to have been breached), and the manner in which the alleged Breach may
satisfactorily be cured. If the City alleges a Breach by Developer, the City shall also
deliver a copy of the Notice of Breach to Theater Operator and any Secured Lender of
Developer which has delivered a Request for Notice to the City in accordance with
Article 12.
11.1.2 Monetary Breach. In the case of a monetary Breach by
Developer, Developer shall promptly commence to cure the identified Breach and shall
complete the cure of such Breach within thirty (30) business days after receipt by
Developer of the Notice of Breach; provided that if such monetary Breach is the result of
an Excusable Delay or the cure of the same is delayed as a result of an Excusable Delay,
Developer shall deliver to the City reasonable evidence of the Excusable Delay.
11.1.3 Non-Monetary Breach. In the case of a non-monetary
Breach by either Party, the alleged defaulting Party shall promptly commence to cure the
identified Breach and shall diligently prosecute such cure to completion; provided that
the defaulting Party shall complete such cure within thirty (30) days after receipt of the
Notice of Breach or provide evidence of Excusable Delay that prevents or delays the
completion of such cure. The thirty (30) day cure period for a non-monetary Breach shall
be extended as is reasonably necessary to remedy such Breach; provided that the alleged
defaulting Party commences such cure promptly after receiving the Notice of Breach and
continuously and diligently pursues such remedy at all times until such Breach is cured.
11.1.4 Excusable Delay. Notwithstanding anything to the contrary
contained in this Agreement, the City’s exercise of any of its rights or remedies under this
Article 11 shall be subject to the provisions regarding Excusable Delay in Section 15.8,
below.
11.2 Remedies for Monetary Default. If there is a Breach by Developer in the
performance of any of its monetary obligations under this Agreement which remains
uncured (a) thirty (30) business days after receipt by Developer of a Notice of Breach
from the City and (b) after expiration of Secured Lender’s Cure Period under Section
12.1.3(b) (if a Secured Lender of Developer has delivered a Request for Notice to the
City in accordance with Section 12.1.3(a)), then an “Event of Monetary Default” shall
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have occurred by Developer and the City shall have available any right or remedy
provided in this Agreement, at law or in equity. All of said remedies shall be cumulative
and not exclusive of one another, and the exercise of any one or more of said remedies
shall not constitute a waiver or election in respect to any other available remedy.
11.3 Remedies for Non-Monetary Default.
11.3.1 Remedies of Parties. If any Party receives a Notice of
Breach from the other Party regarding a non-monetary Breach, and the non-monetary
Breach remains uncured: (a) after expiration of all applicable notice and cure periods; and
(b) in the case of a Breach by Developer, after the expiration of Secured Lender’s Cure
Period under Section 12.1.3(b) (if a Secured Lender of Developer has delivered a Request
for Notice to the City in accordance with Section 12.1.3(a)), then an “Event of Non-
Monetary Default” shall have occurred and the non-defaulting Party shall have available
any right or remedy provided in this Agreement, or provided at law or in equity except as
prohibited by this Agreement. All of said remedies shall be cumulative and not exclusive
of one another, and the exercise of any one or more of said remedies shall not constitute a
waiver or election in respect to any other available remedy.
11.3.2 Specific Performance. The City and Developer
acknowledge that monetary damages and remedies at law generally are inadequate and
that specific performance is an appropriate remedy for the enforcement of this
Agreement. Therefore, unless otherwise expressly provided herein, the remedy of
specific performance shall be available to the non-defaulting party if the other Party
causes an Event of Non-Monetary Default to occur.
11.3.3 Writ of Mandate. The City and Developer hereby stipulate
that Developer shall be entitled to obtain relief in the form of a writ of mandate in
accordance with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate,
to remedy any Event of Non-Monetary Default by the City of its obligations and duties
under this Agreement. Nothing in this Section 11.3.3, however, is intended to alter the
evidentiary standard or the standard of review applicable to any action of, or approval by,
the City pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by
Developer that the City would not have entered into this Agreement if the City were to be
liable in damages under or with respect to this Agreement or the application thereof.
Consequently, and except for the payment of attorneys’ fees and court costs, the City
shall not be liable in damages to Developer and Developer covenants on behalf of itself
and its successors in interest not to sue for or claim any damages:
(a) for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any
right or interest conveyed or provided hereunder or pursuant hereto; or
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(c) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
The City and Developer agree that the provisions of this Section 11.3.4 do not apply for
damages which:
(a) do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or
provided under this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any
dispute, controversy, or issue regarding the application, interpretation, or effect of the
provisions of this Agreement or the application of any City rules, regulations, or official
policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall
be entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the
same may be amended from time to time and shall follow the notice procedures of
Chapter 1.09 and 1.10 respectively in lieu of Section 11.1 of this Agreement if these
remedies are applied.
11.3.6 No Damages Against Developer. It is acknowledged by the
City that Developer would not have entered into this Agreement if Developer were to be
liable in damages in connection with any non-monetary default hereunder. Consequently,
and except for the payment of attorneys’ fees and court costs, Developer shall not be
liable in damages to the City for any nonmonetary default and the City covenants on
behalf of itself not to sue for or claim any damages:
(a) for any non-monetary default hereunder or;
(b) arising out of or connected with any dispute, controversy or
issue regarding;
(c) the application or interpretation or effect of the provisions
of this Agreement.
The City and Developer agree that the provisions of this Section 11.3.6 do not apply for
damages which:
(a) are for a monetary default; or
(b) do not arise out of or which are not connected with any
dispute, controversy or issue regarding the application, interpretation, or effect of the
provisions of this Agreement to or the application of, any City rules, regulations, or
official policies.
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11.3.7 No Other Limitations. Except as expressly set forth in this
Section 11.3, the provisions of this Section 11.3 shall not otherwise limit any other rights,
remedies, or causes of action that either the City or Developer may have at law or equity
after the occurrence of any Event of Non-Monetary Default.
11.4 Modification or Termination of Agreement by City.
11.4.1 Default by Developer. If Developer causes either an Event of
Monetary Default or an Event of Non-Monetary Default, then the City may commence
proceedings to modify or terminate this Agreement pursuant to this Section 11.4.
11.4.2 Procedure for Modification or Termination. The procedures for
modification or termination of this Agreement by the City for the grounds set forth in
Section 11.4.1 are as follows:
(a) The City shall provide a written notice to Developer (and to
any Secured Lender of Developer which has delivered a Request for Notice to the City in
accordance of Section 12.1.3(a)) of its intention to modify or terminate this Agreement
unless Developer (or the Secured Lender) cures or corrects the acts or omissions that
constitute the basis of such determinations by the City (a “Hearing Notice”). The
Hearing Notice shall be delivered by the City to Developer in accordance with Section
15.1 and shall contain the time and place of a public hearing to be held by the City
Council on the determination of the City to proceed with modification or termination of
this Agreement. The public hearing shall not be held earlier than: (i) thirty-one (31) days
after delivery of the Hearing Notice to Developer or (ii) if a Secured Lender has delivered
a Request for Notice in accordance with Section 12.1.3(a), the day following the
expiration of the “Secured Lender Cure Period” (as defined in Section 12.1.3(b)).
(b) If, following the conclusion of the public hearing, the City
Council: (i) determines that an Event of Non-Monetary Default has occurred and (ii)
further determines that Developer (or the Secured Lender, if applicable) has not cured
(within the applicable cure periods) the acts or omissions that constitute the basis of the
determination under clause (i) above or if those acts or omissions could not be reasonably
remedied prior to the public hearing that Developer (or the Secured Lender) has not in
good faith commenced to cure or correct such acts or omissions prior to the public
hearing or is not diligently and continuously proceeding therewith to completion, then
upon making such conclusions, the City Council may modify or terminate this
Agreement. The City cannot unilaterally modify the provisions of this Agreement
pursuant to this Section 11.4.2. Any such modification requires the written consent of
Developer. If the City Council does not terminate this Agreement, but proposes a
modification to this Agreement as a result of the public hearing and Developer does not
(within five (5) days of receipt) execute and deliver to the City the form of modification
of this Agreement submitted to Developer by the City, then the City Council may elect to
terminate this Agreement at any time after the sixth day after Developer’s receipt of such
proposed modification.
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11.5 Cessation of Rights and Obligations. If this Agreement is terminated by
the City pursuant to and in accordance with Section 11.4, the rights, duties and
obligations of the Parties under this Agreement shall cease as of the date of such
termination, except only for those rights and obligations that expressly survive the
termination of this Agreement. In such event, any and all benefits, including money
received by the City prior to the date of termination, shall be retained by the City.
11.6 Completion of Improvements. Notwithstanding the provisions of Sections
11.2, 11.3, 11.4, and 11.5, if prior to termination of this Agreement, Developer has
performed substantial work and incurred substantial liabilities in good faith reliance upon
a building permit issued by the City, then Developer shall have acquired a vested right to
complete construction of the Projects in accordance with the terms of the building permit
and occupy or use each such Project upon completion for the uses permitted for that
Project as provided in this Agreement. Any Project completed or occupied pursuant to
this Section 11.6 shall be considered legal non-conforming subject to all City ordinances
standards and policies as they then exist governing legal non-conforming buildings and
uses unless the Project otherwise complies with the property development standards for
the district in which it is located and the use is otherwise permitted or conditionally
permitted in the district.
ARTICLE 12
MORTGAGEES/THEATER OPERATOR
12.1 Encumbrances on the Property. This Agreement shall not prevent or limit
Developer (in its sole discretion), from encumbering the Property (in any manner) or any
portion thereof or any improvement thereon by any mortgage, deed of trust, assignment
of rents or other security device securing financing with respect to the Property (a
“Mortgage”). Each mortgagee of a mortgage or a beneficiary of a deed of trust (each, a
“Secured Lender”) on the Property shall be entitled to the rights and privileges set forth
in this ARTICLE 12. Any Secured Lender may require from the City certain
interpretations of this Agreement. The City shall from time to time, upon request made by
Developer, meet with Developer and representatives of each of its Secured Lenders to
negotiate in good faith any Secured Lender’s request for interpretation of any part of this
Agreement. The City will not unreasonably withhold, condition or delay the delivery to a
Secured Lender of the City’s written response to any such requested interpretation.
12.1.1 Mortgage Not Rendered Invalid. Except as provided in Section
12.1.2, neither entering into this Agreement nor a Breach of this Agreement, nor any
Event of Monetary Default nor any Event of Non-Monetary Default shall defeat, render
invalid, diminish, or impair the lien of any Mortgage made in good faith and for value.
12.1.2 Priority of Agreement. This Agreement shall be superior and
senior to the lien of any Mortgage. Any acquisition or acceptance of title or any right or
interest in or with respect to the Property or any portion thereof by a Secured Lender or
its successor in interest (whether pursuant to foreclosure, trustee’s sale, deed in lieu of
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foreclosure, lease termination or otherwise) shall be subject to all of the terms and
conditions of this Agreement.
12.1.3 Right of Secured Lender to Cure Default.
(a) A Secured Lender may give notice to the City, specifying
the name and address of such Secured Lender and attaching thereto a true and complete
copy of the Mortgage held by such Secured Lender, specifying the portion of the
Property that is encumbered by the Secured Lender’s lien (a “Request for Notice”). If
the Request for Notice has been given, at the same time the City sends to Developer any
Notice of Breach or Hearing Notice under this Agreement, then if such Notice of Breach
or Hearing Notice affects the portion of the Property encumbered by the Secured
Lender’s lien, the City shall send to such Secured Lender a copy of each such Notice of
Breach and each such Hearing Notice from the City to Developer. The copy of the Notice
of Breach or the Hearing Notice sent to the Secured Lender pursuant to this Section
12.1.3(a) shall be addressed to such Secured Lender at its address last furnished to the
City. The period within which a Secured Lender may cure a particular Event of Monetary
Default or Event of Non-Monetary Default shall not commence until the City has sent to
the Secured Lender such copy of the applicable Notice of Breach or Hearing Notice.
(b) After a Secured Lender has received a copy of such Notice
of Default or Hearing Notice, such Secured Lender shall thereafter have a period of time
(in addition to any notice and/or cure period afforded to Developer under this Agreement)
equal to: (a) ten (10) business days in the case of any Event of Monetary Default and (b)
thirty (30) days in the case of any Event of Non-Monetary Default, during which period
the Secured Lender may provide a remedy or cure of the applicable Event of Monetary
Default or may provide a remedy or cure of the applicable Event of Non-Monetary
Default; provided that if the cure of the Event of Non-Monetary Default cannot
reasonably be completed within thirty days, Secured Lender may, within such 30-day
period, commence to cure the same and thereafter diligently prosecute such cure to
completion (a “Secured Lender’s Cure Period”). If Developer has caused an Event of
Monetary Default or an Event of Non-Monetary Default, then each Secured Lender shall
have the right to remedy such Event of Monetary Default or an Event of Non-Monetary
Default, as applicable, or to cause the same to be remedied prior to the conclusion of the
Secured Lender’s Cure Period and otherwise as herein provided. The City shall accept
performance by any Secured Lender of any covenant, condition, or agreement on
Developer’s part to be performed hereunder with the same force and effect as though
performed by Developer.
(c) The period of time given to the Secured Lender to cure any
Event of Monetary Default or an Event of Non-Monetary Default by Developer which
reasonably requires that said Secured Lender be in possession of the Property to do so,
shall be deemed extended to include the period of time reasonably required by said
Secured Lender to obtain such possession (by foreclosure, the appointment of a receiver
or otherwise) promptly and with due diligence; provided that during such period all other
obligations of Developer under this Agreement, including, without limitation, payment of
all amounts due, are being duly and promptly performed.
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12.1.4 Secured Lender Not Obligated Under this Agreement.
(a) No Secured Lender shall have any obligation or duty under
this Agreement to perform the obligations of Developer’s or the affirmative covenants of
Developer’s hereunder or to guarantee such performance unless and until such time as a
Secured Lender takes possession or becomes the owner of the estate covered by its
Mortgage. If the Secured Lender takes possession or becomes the owner of any portion of
the Property, then from and after that date, the Secured Lender shall be obligated to
comply with all provisions of this Agreement; provided that the Secured Lender shall not
be responsible to the City for any unpaid monetary obligations of Developer that accrued
prior to the date the Secured Lender became the fee owner of the Property.
(b) Nothing in Section 12.1.4(a) is intended, nor should be
construed or applied, to limit or restrict in any way the City’s authority to terminate this
Agreement, as against any Secured Lender as well as against Developer if any curable
Event of Monetary Default or an Event of Non-Monetary Default is not completely cured
within the Secured Lender’s Cure Period.
12.2 Theater Operator’s Notice and Cure Rights.
(a) Provided that the Theater Operator has provided written
notice of the name and address of the Theater Operator to City, at the same time the City
sends to Developer any Notice of Breach or Hearing Notice under this Agreement, the
City shall send to Theater Operator a copy of each such Notice of Breach and each such
Hearing Notice from the City to Developer. The copy of the Notice of Breach or the
Hearing Notice sent to the Theater Operator pursuant to this Section 12.2 shall be
addressed to Theater Operator at the address of the Theater Project. The period within
which Theater Operator may cure a particular Event of Monetary Default or Event of
Non-Monetary Default shall not commence until the City has sent to the Theater
Operator such copy of the applicable Notice of Breach or Hearing Notice.
(b) After Theater Operator has received a copy of such Notice
of Breach or Hearing Notice, Theater Operator shall thereafter have a period of time (in
addition to any notice and/or cure period afforded to Developer under this Agreement)
equal to: (a) ten (10) business days in the case of any Event of Monetary Default and
(b) thirty (30) days in the case of any Event of Non-Monetary Default, during which
period Theater Operator may provide a remedy or cure of the applicable Event of
Monetary Default or may provide a remedy or cure of the applicable Event of Non-
Monetary Default; provided that if the cure of the Event of Non-Monetary Default cannot
reasonably be completed within thirty days, Theater Operator may, within such 30-day
period, commence to cure the same and thereafter diligently prosecute such cure to
completion (a “Theater Operator’s Cure Period”). If Developer has caused an Event
of Monetary Default or an Event of Non-Monetary Default, then Theater Operator shall
have the right, but not the obligation, to remedy such Event of Monetary Default or an
Event of Non-Monetary Default, as applicable, or to cause the same to be remedied prior
to the conclusion of the Theater Operator’s Cure Period and otherwise as herein provided.
The City shall accept performance by Theater Operator of any covenant, condition, or
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agreement on Developer’s part to be performed hereunder with the same force and effect
as though performed by Developer.
(c) Notwithstanding anything to the contrary in this
Agreement, and regardless of whether City provides to Theater Operator any Notice of
Breach or Hearing Notice, Theater Operator has no obligation to commence or complete
any remedy or cure of any Event of Monetary Default or an Event of Non-Monetary
Default, by Developer
ARTICLE 13
TRANSFERS AND ASSIGNMENTS
13.1 Transfers and Assignments.
13.1.4 Not Severable from Ownership Interest in Property. This
Agreement shall not be severable from Developer’s interest in the Property and any
transfer of the Property or any portion thereof shall automatically operate to transfer the
benefits and burdens of this Agreement with respect to the transferred Property or
transferred portions, as applicable.
13.1.5 Transfer Rights. Developer may freely sell, transfer, exchange,
hypothecate, encumber or otherwise dispose of its interest in the Property, without the
consent of the City. Developer shall, however, give written notice to the City, in
accordance with Section 15.1, of any transfer of the Property, disclosing in such notice
(a) the identity of the transferee of the Property (the “Property Transferee”) and (b) the
address of the Property Transferee as applicable.
13.2 Release Upon Transfer. Upon the sale, transfer, exchange or
hypothecation of the rights and interests of Developer to the Property, Developer shall be
released from its obligations under this Agreement to the extent of such sale, transfer or
exchange with respect to the Property if: (a) Developer has provided written notice of
such transfer to City; and (b) the Property Transferee executes and delivers to City a
written agreement in which the Property Transferee expressly and unconditionally
assumes all of the obligations of Developer under this Agreement with respect to the
Property in the form of Exhibit “I” attached hereto (the “Assumption Agreement”).
Upon such transfer of the Property and the express assumption of Developer’s obligations
under this Agreement by the transferee, the City agrees to look solely to the transferee for
compliance with the provisions of this Agreement. Any such transferee shall be entitled
to the benefits of this Agreement as “Developer” hereunder and shall be subject to the
obligations of this Agreement. Failure to deliver a written Assumption Agreement
hereunder shall not affect the transfer of the benefits and burdens as provided in Section
13.1, provided that the transferor shall not be released from its obligations hereunder
unless and until the executed Assumption Agreement is delivered to the City.
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ARTICLE 14
INDEMNITY TO CITY
14.1 Indemnity. Developer agrees to and shall defend, indemnify and hold
harmless the City, its City Council, boards and commissions, officers, agents, employees,
volunteers and other representatives (collectively referred to as “City Indemnified
Parties”) from and against any and all loss, liability, damages, cost, expense, claims,
demands, suits, attorney’s fees and judgments (collectively referred to as “Damages”),
including but not limited to claims for damage for personal injury (including death) and
claims for property damage arising directly or indirectly from the following: (1) for any
act or omission of Developer, Theater Operator, and their respective officers, board
members, agents, employees, volunteers, contractors, subcontractors (collectively
referred to as the “Developer Parties”), which occurs during the Term and relates to this
Agreement; (2) for any act or omission related to the operations of Developer Parties,
including but not limited to the maintenance and operation of areas on the Property
accessible to the public. Developer’s obligation to defend, indemnify and hold harmless
applies to all actions and omissions of Developer Parties as described above caused or
alleged to have been caused in connection with the Project or Agreement, except to the
extent any Damages are caused by the active negligence or willful misconduct of any
City Indemnified Parties. This Section 14.1 applies to all Damages suffered or alleged to
have been suffered by the City Indemnified Parties regardless of whether or not the City
prepared, supplied or approved plans or specifications or both for the Project.
14.2 City’s Right to Defense. The City shall have the right to approve legal
counsel retained by Developer to defend any claim, action or proceeding which
Developer is obligated to defend pursuant to Section 14.1, which approval shall not be
unreasonably withheld, conditioned or delayed. If any conflict of interest results during
the mutual representation of the City and Developer in defense of any such action, or if
the City is reasonably dissatisfied with legal counsel retained by Developer, the City shall
have the right (a) at Developer’s costs and expense, to have the City Attorney undertake
and continue the City’s defense, or (b) with Developer’s approval, which shall not be
reasonably withheld or delayed, to select separate outside legal counsel to undertake and
continue the City’s defense.
ARTICLE 15
GENERAL PROVISIONS
15.1 Notices. Formal notices, demands and communications between the
Parties shall be deemed sufficiently given if delivered to the principal offices of the City
or Developer, as applicable, by (i) personal service, or (ii) express mail, Federal Express,
or other similar overnight mail or courier service, regularly providing proof of delivery,
or (iii) registered or certified mail, postage prepaid, return receipt requested, or (iv)
facsimile (provided that any notice delivered by facsimile is followed by a separate notice
sent within twenty-four (24) hours after the transmission by facsimile delivered in one of
the other manners specified above). Such notice shall be addressed as follows:
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To City:
City of Santa Monica
1685 Main Street, Room 204
Santa Monica, CA 90401
Attention: City Manager
Fax: (310) 917-6640
With a Copy to:
City of Santa Monica
1685 Main Street, Room 212
Santa Monica, CA 90401
Attn: Planning and Community Development Director
Fax: (310) 458-3380
To Developer:
Macerich SMP LP
401 Wilshire Boulevard, Suite 700
Santa Monica, CA 90401
Attn: Randy Brant
Fax: (310) 395-2791
With a Copy to:
Macerich SMP LP
401 Wilshire Blvd., Suite 700
Santa Monica, CA 90401
Attn: Chief Legal Officer
Fax: (310) 395-2791
With a Copy to:
Armbruster Goldsmith & Delvac LLP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Attn: Dale Goldsmith
Fax: (310) 209-8801
Notice given in any other manner shall be effective when received by the
addressee. Any Party may change the addresses for delivery of notices to such Party by
delivering notice to the other Party in accordance with this provision.
15.2 Entire Agreement; Conflicts. This Agreement represents the entire
agreement of the Parties. This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotiations or previous
agreements between the Parties or their predecessors in interest with respect to all or any
part of the subject matter hereof. Should any or all of the provisions of this Agreement be
found to be in conflict with any other provision or provisions found in the Existing
Regulations, then the provisions of this Agreement shall prevail. Should any of the
Conditions of Approval set forth in Section B of Exhibit “D” attached hereto conflict
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with any of the Mitigation Measures set forth in Section A of Exhibit “D” attached
hereto, the more stringent or exacting requirement shall control.
15.3 Binding Effect. The Parties intend that the provisions of this Agreement
shall constitute covenants which shall run with the land comprising the Property during
the Term for the benefit thereof and that the burdens and benefits thereof shall bind and
inure to the benefit of all successors-in-interest to the Parties hereto. Every Party who
now or hereafter owns or acquires any right, title, or interest in or to any portion of the
Project during the Term is and shall be conclusively deemed to have consented and
agreed to every provision contained herein, to the extent relevant to said right, title or
interest, whether or not any reference to this Agreement is contained in the instrument by
which such person acquired an interest in the Project.
15.4 Agreement Not for Benefit of Third Parties. This Agreement is made and
entered into for the sole protection and benefit of Developer and the City and their
respective successors and assigns. Except for the rights given to Secured Lenders under
Article 12 above, no o other person shall have any right of action based upon any
provision of this Agreement.
15.5 No Partnership or Joint Venture. Nothing in this Agreement shall be
deemed to create a partnership or joint venture between the City and Developer or to
render either Party liable in any manner for the debts or obligations of the other.
15.6 Estoppel Certificates. Either Party may, at any time, and from time to
time, deliver written notice to the other Party requesting such Party to certify in writing
(each, an “Estoppel Certificate”): (a) that this Agreement is in full force and effect, (b)
that this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the amendments, (c) whether or not, to the knowledge of the
responding Party, the requesting Party is in Breach or claimed Breach in the performance
of its obligations under this Agreement, and, if so, describing the nature and amount of
any such Breach or claimed Breach, and (d) whether or not, to the knowledge of the
responding Party, any event has occurred or failed to occur which, with the passage of
time or the giving of notice, or both, would constitute an Event of Monetary Default or an
Event of Non-Monetary Default and, if so, specifying each such event. A Party receiving
a request for an Estoppel Certificate shall execute and return such Certificate within thirty
(30) days following the receipt of the request therefor. If the party receiving the request
hereunder does not execute and return the certificate in such 30-day period and if
circumstances are such that the Party requesting the notice requires such notice as a
matter of reasonable business necessity, the Party requesting the notice may seek a
second request which conspicuously states “FAILURE TO EXECUTE THE
REQUESTED ESTOPPEL CERTIFICATE WITHIN FIFTEEN (15) DAYS SHALL BE
DEEMED WAIVER PURSUANT TO SECTIONS 15.6 AND 15.13 OF THE
DEVELOPMENT AGREEMENT” and which sets forth the business necessity for a
timely response to the estoppel request. If the Party receiving the second request fails to
execute the Estoppel Certificate within such 15-day period, it shall be conclusively
deemed that the Agreement is in full force and effect and has not been amended or
modified orally or in writing, and that there are no uncured defaults under this Agreement
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or any events which, with passage of time of giving of notice, of both, would constitute a
default under the Agreement. Theater Operator may also request an Estoppel Certificate
from the City, and the City shall issue such Estoppel Certificate, in accordance with the
foregoing provisions. The City Manager shall have the right to execute any Estoppel
Certificate requested by Developer or Theater Operator under this Agreement. The City
acknowledges that an Estoppel Certificate may be relied upon by Theater Operator, any
Property Transferee, Secured Lender or other party.
15.7 Time. Time is of the essence for each provision of this Agreement of
which time is an element.
15.8 Excusable Delays.
15.8.1 In addition to any specific provisions of this
Agreement, non-performance by Developer of its obligations under this Agreement shall
be excused when it has been prevented or delayed in such performance by reason of any
act, event or condition beyond the reasonable control of Developer (collectively,
“Excusable Delays”) for any of the following reasons:
(a) War, insurrection, walk-outs, riots, acts of terrorism,
floods, earthquakes, fires, casualties, acts of God, or similar grounds for excused
performances;
(b) Governmental restrictions or moratoria imposed by the City
or by other governmental entities or the enactment of conflicting State or Federal laws or
regulations;
(c) The imposition of restrictions or moratoria by judicial
decisions or by litigation, contesting the validity, or seeking the enforcement or
clarification of, this Agreement whether instituted by Developer, the City or any other
person or entity, or the filing of a lawsuit by any Party arising out of this Agreement or
any permit or approval Developer deems necessary or desirable for the implementation of
the Project;
(d) The institution of a referendum pursuant to Government
Code Section 65867.5 or a similar public action seeking to in any way invalidate, alter,
modify or amend the ordinance adopted by the City Council approving and implementing
this Agreement;
(e) Inability to secure necessary labor, materials or tools, due
to strikes, lockouts, or similar labor disputes; and
(f) Failure of the City to timely perform its obligations
hereunder, including its obligations under Section 7.2 above
15.8.2 Under no circumstances shall the inability of
Developer to secure financing be an Excusable Delay to the obligations of Developer.
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15.8.3 In order for an extension of time to be granted for any
Excusable Delay, Developer must deliver to the City written notice of the
commencement of the Excusable Delay within sixty (60) days after the date on which
Developer becomes aware of the existence of the Excusable Delay. The extension of time
for an Excusable Delay shall be for the actual period of the delay.
15.8.4 Nothing contained in this Section 15.8 is intended to
modify the terms of either Section 5.1.2 or Section 5.5 of this Agreement.
15.9 Governing Law. This Agreement shall be governed exclusively by the
provisions hereof and by the laws of the State of California.
15.10 Cooperation in Event of Legal Challenge to Agreement. If there is any
court action or other proceeding commenced that includes any challenge to the validity,
enforceability or any term or provision of this Agreement, then Developer shall
indemnify, hold harmless, pay all costs actually incurred, and provide defense in said
action or proceeding, with counsel reasonably satisfactory to both the City and
Developer. The City shall cooperate with Developer in any such defense as Developer
may reasonably request.
15.11 Attorneys’ Fees. If any Party commences any action for the interpretation,
enforcement, termination, cancellation or rescission of this Agreement or for specific
performance for the Breach of this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys’ fees, litigation expenses and costs. Attorneys’ fees shall include
attorneys’ fees on any appeal as well as any attorneys’ fees incurred in any post-judgment
proceedings to collect or enforce the judgment. Such attorneys’ fees shall be paid whether
or not such action is prosecuted to judgment. In any case where this Agreement provides
that the City or Developer is entitled to recover attorneys’ fees from the other, the Party
so entitled to recover shall be entitled to an amount equal to the fair market value of
services provided by attorneys employed by it as well as any attorneys’ fees actually paid
by it to third Parties. The fair market value of the legal services for public attorneys shall
be determined by utilizing the prevailing billing rates of comparable private attorneys.
15.12 Recordation. The Parties shall cause this Agreement and any notice of
covenants required herein to be recorded against title to the Property in the Official
Records of the County of Los Angeles. The cost, if any, of recording these documents
shall be borne by Developer.
15.13 No Waiver. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized representative of the Party
against whom enforcement of a waiver is sought and referring expressly to this Section
15.13. No delay or omission by either Party in exercising any right or power accruing
upon non-compliance or failure to perform by the other Party under any of the provisions
of this Agreement shall impair any such right or power or be construed to be a waiver
thereof, except as expressly provided herein. No waiver by either Party of any of the
covenants or conditions to be performed by the other Party shall be construed or deemed
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a waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof of this Agreement.
15.14 Construction of this Agreement. The Parties agree that each Party and its
legal counsel have reviewed and revised this Agreement and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting Party shall not apply
in the interpretation of this Agreement or any amendments or exhibits thereto.
15.15 Other Governmental Approvals. Developer may apply for such other
permits and approvals as may be required for development of the Project in accordance
with this Agreement from other governmental or quasi-governmental agencies having
jurisdiction over the Property. The City shall reasonably cooperate with Developer in its
endeavors to obtain such permits and approvals.
15.15.1 Further Assurances; Covenant to Sign Documents.
Each Party shall take all actions and do all things, and execute, with acknowledgment or
affidavit, if required, any and all documents and writings, which may be necessary or
proper to achieve the purposes and objectives of this Agreement.
15.15.2 Processing. Upon satisfactory completion by Developer
of all required preliminary actions and payments of appropriate processing fees, if any,
the City shall, subject to all legal requirements, promptly initiate, diligently process, and
complete at the earliest possible time all required steps, and expeditiously act upon any
approvals and permits necessary for the development by Developer of the Project in
accordance with this Agreement, including, but not limited to, the following:
(a) the processing of applications for and issuing of all
Discretionary Approvals requiring the exercise of judgment and deliberation by City;
(b) the holding of any required public hearings; and
(c) the processing of applications for and issuing of all City
Technical Permits requiring the determination of conformance with the Existing
Regulations.
15.15.3 No Revocation. The City shall not revoke or
subsequently disapprove any approval or future approval for the development of the
Project or the Property once issued by the City provided that the development of the
Project or the Property is in accordance with such approval. Any disapproval by the City
shall state in writing the reasons for such disapproval and the suggested actions to be
taken in order for approval to be granted.
15.15.4 Processing During Third Party Litigation. If any third
party lawsuit is filed against the City or Developer relating to this Agreement or to other
development issues affecting the Property, the City shall not delay or stop the
development, processing or construction of the Property, or issuance of the City
Technical Permits, unless the third party obtains a court order preventing the activity.
Notwithstanding the foregoing and without prejudice to the provisions of Section 15.8(c),
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after service on the City or Developer of the initial petition or complaint challenging this
Agreement or the Project, the Developer may apply to the Planning Director for a tolling
of the applicable deadlines for Developer to otherwise comply with this Agreement.
Within 40 days after receiving such an application, the Planning Director shall either toll
the time period for up to five years during the pendency of the litigation or deny the
requested tolling.
15.15.5 State, Federal or Case Law. Where any state, federal or case
law allows the City to exercise any discretion or take any act with respect to that law,
the City shall, in an expeditious and timely manner, at the earliest possible time, (i)
exercise its discretion in such a way as to be consistent with, and carry out the terms
of, this Agreement and (ii) take such other actions as may be necessary to carry out in
good faith the terms of this Agreement.
15.16 Venue. Any legal action or proceeding among the Parties arising out of
this Agreement shall be instituted in the Superior Court of the County of Los Angeles,
State of California, in any other appropriate court in that County, or in the Federal
District Court in the Central District of California.
15.17 Exhibits. The following exhibits which are part of this Agreement are
attached hereto and each of which is incorporated herein by this reference as though set
forth in full:
Exhibit “A” Legal Description of the Property
Exhibit “B” Project Plans
Exhibit “C” Permitted Fees and Exactions
Exhibit “D” Mitigation Measures and Conditions
Exhibit “E” SMMC Article 9 (Planning and Zoning)
Exhibit “F-1” Local Hiring Program for Construction
Exhibit “F-2” Local Hiring Program for Permanent Employment
Exhibit “G-1” Map of Work Area
Exhibit "G-2" Construction Drawings for Work
Exhibit “H” Construction Mitigation Plan
Exhibit “I” Assignment and Assumption Agreement
Exhibit “J” Conditions for Sale of Alcoholic Beverages
Except as to the Project Plans (attached hereto as Exhibit B) which shall be
treated in accordance with Section 2.1 above, the text of this Agreement shall prevail in
the event that any inconsistencies exist between the Exhibits and the text of this
Agreement.
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15.18 Counterpart Signatures. The Parties may execute this Agreement on
separate signature pages which, when attached hereto, shall constitute one complete
Agreement.
15.19 Certificate of Performance. Upon the completion of the Project, or any
phase thereof, or upon performance of this Agreement or its earlier revocation and
termination, the City shall provide Developer, upon Developer’s request, with a statement
(“Certificate of Performance”) evidencing said completion, termination or revocation
and the release of Developer from further obligations hereunder, except for any further
obligations which survive such completion, termination or revocation. The Certificate of
Performance shall be signed by the appropriate agents of Developer and the City and
shall be recorded against title to the Property in the official records of Los Angeles
County, California. Such Certificate of Performance is not a notice of completion as
referred to in California Civil Code Section 3093.
15.20 Interests of Developer. Developer represents to the City that, as of the
Effective Date, it is the owner of the entire Property, subject to encumbrances, easements,
covenants, conditions, restrictions, and other matters of record.
15.21 Operating Memoranda. The provisions of this Agreement require a close
degree of cooperation between the City and Developer. During the Term of this
Agreement, clarifications to this Agreement and the Existing Regulations may be
appropriate with respect to the details of performance of the City and Developer. If and
when, from time to time, during the term of this Agreement, the City and Developer
agree that such clarifications are necessary or appropriate, they shall effectuate such
clarification through operating memoranda approved in writing by the City and
Developer, which, after execution, shall be attached hereto and become part of this
Agreement and the same may be further clarified from time to time as necessary with
future written approval by the City and Developer. Operating memoranda are not
intended to and cannot constitute an amendment to this Agreement but mere ministerial
clarifications, therefore public notices and hearings shall not be required for any
operating memorandum. The City Attorney shall be authorized, upon consultation with,
and approval of, Developer, to determine whether a requested clarification may be
effectuated pursuant to the execution and delivery of an operating memorandum or
whether the requested clarification is of such character to constitute an amendment of this
Agreement which requires compliance with the provisions of Section 8.1 above. The
authority to enter into such operating memoranda is hereby delegated to the City
Manager and the City Manager is hereby authorized to execute any operating memoranda
hereunder without further action by the City Council.
15.22 Acknowledgments, Agreements and Assurance on the Part of Developer.
15.22.5 Developer’s Faithful Performance. The Parties acknowledge
and agree that Developer’s faithful performance in developing the Project on the Property
and in constructing and installing certain public improvements pursuant to this
Agreement and complying with the Existing Regulations will fulfill substantial public
needs. The City acknowledges and agrees that there is good and valuable consideration to
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the City resulting from Developer’s assurances and faithful performance thereof and that
same is in balance with the benefits conferred by the City on the Project. The Parties
further acknowledge and agree that the exchanged consideration hereunder is fair, just
and reasonable. Developer acknowledges that the consideration is reasonably related to
the type and extent of the impacts of the Project on the community and the Property, and
further acknowledges that the consideration is necessary to mitigate the direct and
indirect impacts caused by Developer on the Property.
15.22.6 Obligations to be Non-Recourse. As a material element of this
Agreement, and in partial consideration for Developer’s execution of this Agreement, the
Parties each understand and agree that the City’s remedies for breach of the obligations of
Developer under this Agreement shall be limited as described in Sections 11.2 through
11.4 above.
15.23 Not a Public Dedication. Nothing in this Agreement shall be deemed to be
a gift or dedication of the Property, or of the Project, or any portion thereof, to the general
public, for the general public, or for any public use or purpose whatsoever, it being the
intention and understanding of the Parties that this Agreement be strictly limited to and
for the purposes herein expressed for the development of the Project as private property.
Developer shall have the right to prevent or prohibit the use of the Property, or the
Project, or any portion thereof, including common areas and buildings and improvements
located thereon, by any person for any purpose inimical to the development of the
Project, including without limitation to prevent any person or entity from obtaining or
accruing any prescriptive or other right to use the Property or the Project.
15.24 Other Agreements. The City acknowledges that certain additional
agreements may be necessary to effectuate the intent of this Agreement and facilitate
development of the Project. The City Manager or his/her designee is hereby authorized to
prepare, execute, and record those additional agreements.
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15.25 Severability and Termination. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable, or if any
provision of this Agreement is superseded or rendered unenforceable according to any
law which becomes effective after the Effective Date, the remainder of this Agreement
shall be effective to the extent the remaining provisions are not rendered impractical to
perform, taking into consideration the purposes of this Agreement.
This Agreement is executed by the Parties on the date first set forth above and is
made effective on and as of the Effective Date.
DEVELOPER:
MACERICH SMP LP,
a Delaware limited partnership
By: MACERICH SMP GP LLC,
a Delaware limited liability company,
its general partner
By: _____________________________
Name: ___________________________
Title: ____________________________
CITY:
CITY OF SANTA MONICA
ATTEST: a municipal corporation
________________________ By: ________________________
SARAH P. GORMAN ROD GOULD
City Clerk City Manager
APPROVED AS TO FORM:
________________________
MARSHA JONES MOUTRIE
City Attorney
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT B
PROJECT PLANS
B-1
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EXHIBIT C
PERMITTED FEES AND EXACTIONS
1. Developer shall pay the following fees and charges that are within the City’s
jurisdiction and at the rate in effect at the time payments are made:
(a) Upon submittal for Architectural Review Board (ARB) review, Developer
shall pay City fees for processing of ARB applications;
(b) Upon submittal for plan check, Developer shall pay City plan check fees;
(c) Prior to issuance of construction permits, Developer shall pay the
following City fees and all other standard fees imposed on similar
development projects:
• Building, Plumbing, Mechanical, Electrical, Grading, Seismic Mapping,
Excavation and Shoring Permit fees (collected by Building & Safety)
• Shoring Tieback fee (collected by EPWM)
• Construction and Demolition (C&D) Waste Management fee (SMMC
Section 7.60.020) (collected by EPWM) (collected by EPWM)
• Wastewater Capital Facilities Fee (SMMC Section 7.04.460) (collected
by EPWM)
• Water Capital Facilities Fee & Water Meter Instillation fee (Water
Meter Permit fee) (SMMC Section 7.12.090) (collected by EPWM)
• Fireline Meter fee (SMMC Section 7.12.090) (collected by EPWM)
(d) Upon inspection of the Project during the course of construction, City
inspection fees.
These fees shall be reimbursed to Developer in accordance with the City’s
standard practice should Developer not proceed with development of the Project.
2. Prior to issuance of permits for any construction work in the public right-of-way,
or use of public property, Developer shall pay the following City fees:
• Use of Public Property Permit fees (SMMC 7.04.670) (EPWM)
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• Utility Excavation Permit fee (SMMC 7.04.010) (EPWM)
• Street Permit fee (SMMC 7.04.790) (EPWM)
3. The Developer shall reimburse the City for its actual costs to monitor
environmental mitigation measures. The City shall bill the Developer for staff
time and any material used pursuant to the hourly fees in effect at the time
monitoring is performed. Developer shall submit payment to the City within 30
days.
4. Developer shall reimburse the City for its ongoing actual costs to monitor the
project’s compliance with this Development Agreement. The City shall bill
Developer for staff time and any material used pursuant to the hourly fees in
effect at the time monitoring is performed. Developer shall submit payment to the
City within 30 days.
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EXHIBIT D
MITIGATION MEASURERS AND CONDITIONS OF APPROVAL
SECTION A - MITIGATION MEASURES
Mitigation Measure
TRAF-1: Construction Impact Mitigation Plan. The Applicant shall prepare, implement,
and maintain a Construction Impact Mitigation Plan which shall be designed to:
• Minimize traffic impacts on the surrounding roadway network.
• Maintain two lanes of traffic, unobstructed, in both the northbound and
southbound direction on 4th Street for the duration of the project.
• Ensure no work encroaches into existing bus stop on southbound 4th Street.
• Minimize parking impacts both to public parking and access to private parking.
• Ensure safety for both those constructing the project and the surrounding
community.
• Prevent truck traffic through residential neighborhoods by establishing truck
routes that utilize non-residential streets.
• Ensure coordination with the Exposition Light Rail line (Expo LRT) Downtown
Santa Monica station, Gas Company, Southern California Edison, Colorado
Esplanade, and other nearby construction projects such as the approved 5th and
Colorado Hotel projects. The Construction Impact Mitigation Plan shall be
subject to review and approval by the following City departments: Public Works
Department, Santa Monica Fire Department, Planning and Community
Development (Transportation Engineering and Management Division), and Santa
Monica Police Department to ensure that the Plan has been designed in
accordance with this mitigation measure. This review shall occur prior to building
permit issuance for the Project. It shall at a minimum, include the following:
• A detailed traffic control plan for work zones shall be implemented
which includes, at a minimum temporary parking and travel lane
configurations; warning, regulatory, guide and directional signage; and
area sidewalks, bicycle lanes and parking lanes (i.e. Temporary Traffic
Control Plans). The plan shall include specific information regarding
the Project’s construction activities that may disrupt normal pedestrian
and traffic flow, temporary close lanes, and the measures to address
these disruptions. Such plans must be submitted to, reviewed and
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approved by the Public Works Department and the Transportation
Engineering and Management Division prior to building permit
issuance and implemented in accordance with this approval, as a part
of standard permitting processes for work occurring within the public
right-of-way (i.e. Use of Public Property Permit process). Note that the
process for submittal, review, and approval of Temporary Traffic
Control Plans is separate from the Use of Public Property Permit
process and has specific requirements.
• Work within the public right-of-way shall be performed between 9:00
AM and 4:00 PM, including demolition material hauling and
construction material delivery. Any requests for work before or after
normal construction hours within the public right-of-way shall be
subject to review and approval through the After Hours Permit process
administered by the Building and Safety Division.
• Streets and equipment should be cleaned in accordance with Santa
Monica’s established Environmental and Public Works Management
(“EPWM”) requirements.
• Trucks shall only travel on a City approved construction route.
• Materials and equipment should be minimally visible to the public; the
preferred location for materials is to be on-site, with a minimum
amount of materials within a work area in the public right-of-way,
subject to a current Use of Public Property permit.
Project Coordination Elements that shall be implemented prior to commencement of
construction:
• The Applicant will coordinate with the City’s Public Works Department and the
Transportation Engineering and Management Division to ensure that temporary
lane restrictions associated with the Expo LRT, Colorado Esplanade, and 5th and
Colorado Hotel projects do not occur in manner that significantly obstructs traffic
flow on Colorado Avenue or 4th Street.
• The Applicant shall advise the traveling public of impending construction
activities (e.g., information signs, portable message signs, media
listing/notification).
• The Applicant shall specify a direct contact person (name, cell phone, and email)
who can represent the contractor(s) for all construction-related activities that will
occur within the public right-of-way. The contact person shall provide weekly
updates to Transportation Engineering and Management Division staff on planned
construction activities and associated work within the public right-of-way for the
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forthcoming weeks. The Applicant shall notify Transportation Engineering and
Management Division staff of any changes to the designated contact person in
writing at least seven (7) days prior to making and personnel changes.
• The Applicant shall obtain a Use of Public Property Permit for any construction
work requiring lane closures, encroachment into public rights-of-way, detours or
any other work within the public right-of-way.
• The Applicant shall provide timely notification of construction schedules to all
affected agencies (e.g., Big Blue Bus, Police Department, Fire Department, Public
Works Department, and Planning and Community Development Department) and
to all owners and residential and commercial tenants of property within a radius
of 500 feet of the construction site.
SECTION B
Project Specific Conditions
1. The project shall provide the Significant Project Features and LUCE Community
Benefits as established in Section 2.7 of this Agreement.
2. Developer shall submit to the City a written consent to the height of the Project,
as proposed in this Agreement, or, alternatively, a written waiver of the height
limitation in the Amendment to and Restatement of Construction, Operation and
Reciprocal Easement Agreement, dated July 28, 2010, by and among Macerich
Santa Monica LLC, a Delaware limited liability company, Bloomingdale’s, Inc.,
an Ohio corporation, and the Redevelopment Agency of the City of Santa Monica.
3. The following conditions shall apply to rooftop satellite antennas that have
transmit capability (but shall not apply to receive only satellite antennas):
(a) After transmitter and antenna system optimization, but prior to unattended
operations of this project, the permittee or its representative must conduct on-site
post-installation RF emissions testing to demonstrate actual compliance with the
FCC regulations (47 C.F.R. § 1.1307 et seq) and FCC OET Bulletin 65 RF
emissions safety rules for General Population/Uncontrolled RF exposure in all
sectors. For this testing, the transmitter shall be operating in continuous wave
mode at maximum operating power, and the testing shall occur outwards to a
distance where the RF emissions no longer exceed the Uncontrolled/General
Population limit.
(b) The Permittee (i.e., the Theater Operator) shall place and maintain permanent
physical barriers (e.g. chains affixed to permanently anchored poles about 5 feet
tall) placed at the point just beyond the 100% uncontrolled/general population
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limit as determined in C Special Condition 1 bracketing the entirety of the
controlled zone in front of the antennas.
(c) If members of the General Population are required to be in the controlled zone
in front the antennas within the physical barrier described in Special Condition 2,
other than to transit the controlled zone area (i.e., to perform maintenance or
repairs on the air conditioning units or roof area, etc. within the controlled zone),
the permittee shall coordinate signal transmissions from this antenna site during
the entire work period to ensure compliance with the FCC rules.
(d) The Permittee shall place and maintain permanent RF Caution sign in English
and Spanish on the access ladder security gate. The signage must be a minimum
of 8” wide by 12” high, compliant with the FCC OET Bulletin 65 or ANSI C95.2
for color, symbol and content conventions; and be visible to anyone prior to
accessing the roof. The signage required by this condition shall at all times
provide a working local or toll-free telephone number to the antenna control point
to reach a live person who can exert transmitter power-down control over the site
as required by the FCC. The location of the signs must be visible immediately
prior entering the physical barrier described in Special Condition 2.
(e) Installation and Periodic Safety Monitoring. After installation of the facility,
but prior to final inspection approval, and annually thereafter, the Permittee shall
submit to the Zoning Administrator a certification attested to by a qualified
professional engineer licensed in the State of California or other technical expert
approved by the City, that the facility is and will be operated within the applicable
FCC standards for radio frequency (“RF”) emissions (47 C.F.R. § 1.1307 et seq)
taking into account other existing and new RF emitters, and other relevant data
required by the City. All technical analysis used to determine FCC compliance
shall be provided with the certification. Such periodic reports shall be on a form
and format acceptable to the City. The City may request, and the Permittee shall
promptly provide, further information or clarification in connection with such
periodic reports.
(f) Community Liaison Officer. Within 10 days of the effective date of this
authorization, the Permittee shall appoint a Community Liaison Officer to resolve
issues of concern to neighbors and residents relating to the construction and
operation of the facility. Upon appointment, the Permittee shall report in writing
the name, address and telephone number of this officer to the Zoning
Administrator. The Community Liaison Officer shall report to the Zoning
Administrator the issues, if any, that are of concern to the community and how
they have been resolved by the Permittee, and those issues have not been resolved
by the Permittee. This report shall be submitting in writing upon receiving a
request for information or complaint.
(g) Emissions Compliance. Full initial and ongoing compliance with all FCC RF
safety rules (47 C.F.R. § 1.1307 et seq) and in FCC OET Bulletin 65 as either
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may be amended or superseded or replaced is a continuing material requirement
and condition of this permit.
(h) Out of Service. If operation of the antenna structure is abandoned for a
continuous period of six months or more, all components of the facility shall be
removed. Portions of the building damaged or discolored by removal of the
equipment shall be repaired in a manner that restores the building to its prior
condition, subject to approval by the Director of Planning and Community
Development. Re-installation of a new antenna structure shall necessitate the
filing of a new Use Permit application.
(i) Implementation and Monitoring Costs. The Permittee or its successors shall be
responsible for the prompt reimbursement to the City of all reasonable costs
associate with the monitoring of the conditions of approval contained in this
determination, including costs incurred by the City. The Department of Planning
and Community Development shall collect such costs on behalf of the City. The
Permittee shall be responsible for the payment of all fees associated with the
installation and removal of the subject facility.
(j) The testing in Condition 3(a) above must be coordinated with and may be
observed by the City or its representative. The test measurement observations
shall be recorded in a written report prepared by the permittee or its contractor
and shall specify the location of the measurement, the peak measured signal
strength in units of mW/cm2, and shall be correlated to the plan view of the
project plans at page A-1. The report shall also provide full measurement
equipment identification, current calibration certificate(s) for all equipment, and
the qualifications of the person(s) conducting the tests.
(k) The permittee shall tender its written report documenting the testing and
observations as in Condition 3(a) to the City for review prior to unattended
operations of its project. The City shall within ten (10) business days notify the
permittee by writing whether the testing demonstrates compliance with FCC OET
Bulletin 65 RF emissions safety standards under the General
Population/Uncontrolled standard, and such notification shall not be unreasonably
withheld. Upon the City’s notification, the permittee may commence unattended
operation of its project.
(l) The permittee shall promptly reimburse the City for all of the City’s actual
costs in observing the testing and reviewing the report for compliance with the
FCC OET Bulletin 65 RF safety requirements, and if necessary for verifying any
subsequent remedial measures required to secure areas on the roof as required in
these conditions.
(m) Once each calendar year at 12 month intervals, commencing between twelve
and thirteen months after the date of testing required in Condition 1, an authorized
officer of the permittee shall certify in writing to the City under penalty of perjury
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that the facility’s emissions continue in full compliance with the FCC OET
Bulletin 65 RF safety requirements and all of the conditions in this permit, and all
physical barriers and signage are in place and in good condition.
4. The following conditions shall apply to all rooftop satellite antennas:
(a) Architectural Review. The Architectural Review Board shall review the
equipment cabinets and antenna structures to determine whether screening is
necessary. If determined to be necessary, the final design and screening shall be
subject to review and approval by the Architectural Review Board, prior to
issuance of a Building Permit; provided, however, that such screening shall not be
required to the extent it obstructs or interferes with transmission or reception.
Whether or not screening is required by the Architectural Review Board, the
facility, including all antennas, associated electrical and mechanical equipment,
and cable trays, shall be painted to match the color of the existing building or
structure upon which it is located.
(b) The display of any sign or any other graphics on an antenna is prohibited
except for public safety warnings.
5. The Architectural Review Board shall pay attention to the placement of the roof
parapet to minimize visibility from Fourth Street and Colorado Avenue.
CITY PLANNING
Administrative Conditions
6. In the event Developer violates or fails to comply with any conditions of
approval of this permit, no further permits, licenses, approvals or certificates
of occupancy shall be issued until such violation has been fully remedied.
Conformance with Approved Plans
7. This approval is for those plans dated XXX, a copy of which shall be
maintained in the files of the City Planning Division. Project development
shall be consistent with such plans, except as otherwise specified in these
conditions of approval.
8. Minor amendments to the plans shall be subject to approval by the Director of
Planning. A significant change in the approved concept shall be subject to
review as provided in the Development Agreement. Construction shall be in
conformance with the plans submitted or as modified in accordance with the
Development Agreement.
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9. Except as otherwise provided by the Development Agreement, project plans
shall be subject to complete Code Compliance review when the building plans
are submitted for plan check and shall comply with all applicable provisions
of Article IX of the Municipal Code and all other pertinent ordinances and
General Plan policies of the City of Santa Monica prior to building permit
issuance.
[Conditions 10 to 20 intentionally omitted.]
Fees
21. No building permit shall be issued for the project until the developer complies
with the requirements of Part 9.04.10.20 of the Santa Monica Municipal Code,
Private Developer Cultural Arts Requirement. If the developer elects to comply
with these requirements by providing on-site public art work or cultural facilities,
no final City approval shall be granted until such time as the Director of the
Community and Cultural Services Department issues a notice of compliance in
accordance with Part 9.04.10.20.
Project Operations
22. The operation shall at all times be conducted in a manner not detrimental to
surrounding properties or residents by reason of lights, noise, activities, parking or
other actions.
23. The project shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
Final Design
24. Plans for final design, landscaping, screening, trash enclosures, and signage shall
be subject to review and approval by the Architectural Review Board pursuant to
Article 6 above.
25. Refuse areas, storage areas and mechanical equipment shall be screened in
accordance with SMMC Section 9.04.10.02.130, 140, and 150. Refuse areas shall
be of a size adequate to meet on-site need, including recycling. The Architectural
Review Board in its review shall pay particular attention to the screening of such
areas and equipment. Any rooftop mechanical equipment shall be minimized in
height and area, and shall be located in such a way as to minimize noise and
visual impacts to surrounding properties. Unless otherwise approved by the
Architectural Review Board, rooftop mechanical equipment shall be located at
least five feet from the edge of the roof. Except for solar hot water heaters, no
residential water heaters shall be located on the roof.
26. No gas or electric meters shall be located within the required front or street side
yard setback areas. The Architectural Review Board in its review shall pay
particular attention to the location and screening of such meters.
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27. Prior to consideration of the project by the Architectural Review Board, the
applicant shall review disabled access requirements with the Building and Safety
Division and make any necessary changes in the project design to achieve
compliance with such requirements. The Architectural Review Board, in its
review, shall pay particular attention to the aesthetic, landscaping, and setback
impacts of any ramps or other features necessitated by accessibility requirements.
28. As appropriate, the Architectural Review Board shall require the use of anti-
graffiti materials on surfaces likely to attract graffiti.
Construction Plan Requirements
29. Final building plans submitted for approval of a building permit shall include on
the plans a list of all permanent mechanical equipment to be placed indoors which
may be heard outdoors.
Construction Period
30. Any construction related activity in the public right-of-way will be required to
acquire the approvals by the City of Santa Monica, including but not limited to:
Use of Public Property Permits, Sewer Permits, Excavation Permits, Alley
Closure Permits, Street Closure Permits, and Temporary Traffic Control Plans.
31. Vehicles hauling dirt or other construction debris from the site shall cover any
open load with a tarpaulin or other secure covering to minimize dust emissions.
Immediately after commencing dirt removal from the site, the general contractor
shall provide the City of Santa Monica with written certification that all trucks
leaving the site are covered in accordance with this condition of approval.
32. During demolition, excavation, and construction, this project shall comply with
SCAQMD Rule 403 to minimize fugitive dust and associated particulate
emission, as applicable, including but not limited to the following:
(a) All material excavated or graded shall be sufficiently watered to prevent
excessive amounts of dust. Watering shall occur at least three times daily
with complete coverage, preferably at the start of the day, in the late
morning, and after work is done for the day.
(b) All grading, earth moving, or excavation activities shall cease during
periods of high winds (i.e., greater than 20 mph measured as instantaneous
wind gusts) so as to prevent excessive amounts of dust.
(c) Soils stockpiles shall be covered.
(d) Onsite vehicle speeds shall be limited to 15 mph.
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(e) Wheel washers shall be installed where vehicles enter and exit the
construction site onto paved roads or wash off trucks and any equipment
leaving the site each trip.
(f) An appointed construction relations officer shall act as a community
liaison concerning onsite construction activity including resolution of
issues related to PM10 generation.
(g) Streets shall be swept at the end of the day using SCAQMD Rule 1186
certified street sweepers or roadway washing trucks if visible soil is
carried onto adjacent public paved roads (recommend water sweepers with
reclaimed water).
(h) All active portions the construction site shall be sufficiently watered three
times a day to prevent excessive amounts of dust.
Developer shall prepare a notice, subject to the review by the Director of Planning and
Community Development, that lists all construction mitigation requirements, permitted
hours of construction, and identifies a contact person at City Hall as well as the developer
who will respond to complaints related to the proposed construction. The notice shall be
mailed to property owners and residents of the neighborhood within 1000’ of the Project
at least five (5) days prior to the start of construction.
33. A sign shall be posted on the property in a manner consistent with the public
hearing sign requirements which shall identify the address and phone number of
the owner and/or applicant for the purposes of responding to questions and
complaints during the construction period. Said sign shall also indicate the hours
of permissible construction work.
34. Developer shall coordinate meetings with the management of neighboring
residential buildings such as the Salvation Army facility at 1533 4th Street and the
mixed use residential building at 1541 4th Street to seek solutions to minimize
noise impacts. Additionally, neighboring residents shall be notified of the
construction schedule and upcoming high level noise events.
35. A copy of these conditions shall be posted in an easily visible and accessible
location at all times during construction at the project site. The pages shall be
laminated or otherwise protected to ensure durability of the copy.
36. No construction-related vehicles may be parked on the street at any time or on the
subject site during periods of peak parking demand. All construction-related
vehicles must be parked for storage purposes at on offsite location on a private lot
for the duration of demolition and construction. The offsite location shall be
approved as part of the Department of Public Works review of the construction
period mitigation plan and by the Department of City Planning if a Temporary
Use Permit is required.
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37. Construction period signage shall be subject to the approval of the Architectural
Review Board.
Standard Conditions
38. Mechanical equipment shall not be located on the side of any building which is
adjacent to a residential building on the adjoining lot, unless otherwise permitted
by applicable regulations. Roof locations may be used when the mechanical
equipment is installed within a sound-rated parapet enclosure.
39. Final approval of any mechanical equipment installation will require a noise test
in compliance with SMMC Section 4.12.040. Equipment for the test shall be
provided by the owner or contractor and the test shall be conducted by the owner
or contractor. A copy of the noise test results on mechanical equipment shall be
submitted to the Community Noise Officer for review to ensure that noise levels
do not exceed maximum allowable levels for the applicable noise zone.
40. The property owner shall insure any graffiti on the site is promptly removed
through compliance with the City’s graffiti removal program.
Condition Monitoring
41. The applicant authorizes reasonable City inspections of the property to ensure
compliance with the conditions of approval imposed by the City in approving this
project and will bear the reasonable cost of these inspections.
BIG BLUE BUS
42. Developer shall notify the Theater Operator in writing as part of their lease or
rental agreement that the City envisions a network of transit services in the
Downtown area that may result in public transit services operating on any street in
the Downtown area, both on streets currently used by transit or through expansion
of service to streets not currently utilized by transit. In addition, new bus stops or
bus layover zones may be established on these streets for regular use by either the
Big Blue Bus or other fixed route or specialized transit operators. On-street
parking may be removed at any time to create a bus zone in an appropriate
location for safe vehicular movement and passenger safety regardless of business
or residential adjacency.
OFFICE OF SUSTAINABILITY AND THE ENVIRONMENT
43. Developer shall enroll the property in the Savings By Design incentive program
where available through Southern California Edison prior to submittal of plans for
Architectural Review. Developer shall execute an incentive agreement with
Southern California Edison prior to the issuance of a building permit.
44. The project shall comply with requirements in section 8.106 of the Santa Monica
Municipal code, which adopts by reference the California Green Building
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Standards Code and which adds local amendments to that Code. In addition, the
project shall meet the landscape water conservation and construction and
demolition waste diversion requirements specified in Section 8.108 of the Santa
Monica Municipal Code.
PUBLIC WORKS
General Conditions
45. Developer shall be responsible for the payment of the following Public Works
Department (PWD) permit fees prior to issuance of a building permit:
a. Water Services
b. Wastewater Capital Facility
c. Water Demand Mitigation
d. Fire Service Connection
e. Tieback Encroachment
f. Encroachment of on-site improvements into public right-of-way
g. Construction and Demolition Waste Management – If the valuation of a
project is at least $50,000 or if the total square feet of the project is equal
to or greater than 1000 square feet, then the owner or contractor is
required to complete and submit a Waste Management Plan. All
demolition projects are required to submit a Waste Management Plan. A
performance deposit is collected for all Waste Management Plans equal to
3% of the project value, not to exceed $30,000. All demolition only
permits require a $1,000 deposit or $1.00 per square foot, whichever is the
greater of the two.
Some of these fees shall be reimbursed to developer in accordance with the City’s
standard practice should Developer not proceed with development of the Project.
In order to receive a refund of the Construction and Demolition performance
deposit, the owner or contractor must provide receipts of recycling 70% of all
materials listed on the Waste Management Plan.
46. Any work or use of the public right-of-way including any proposed
encroachments of on-site improvements into the public right-of-way will require a
permit from the Public Works Department (PWD) - Administrative Services
Division.
47. Plans and specifications for all offsite improvements shall be prepared by a
Registered Civil Engineer licensed in the State of California for approval by the
City Engineer prior to issuance of a building permit.
48. Immediately after demolition and during construction, a security fence, the height
of which shall be the maximum permitted by the Zoning Ordinance, shall be
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maintained around the perimeter of the lot. The lot shall be kept clear of all trash,
weeds, etc.
49. A sign shall be posted on the property in a manner consistent with the public
hearing sign requirements, which shall identify the address and phone number of
the owner, developer and contractor for the purposes of responding to questions
and complaints during the construction period. Said sign shall also indicate the
hours of permissible construction work.
50. Prior to the demolition of any existing structure, the applicant shall submit a
report from an industrial hygienist to be reviewed and approved as to content and
form by the Building & Safety Division. The report shall consist of a hazardous
materials survey for the structure proposed for demolition. The report shall
include a section on asbestos and in accordance with the South Coast AQMD
Rule 1403, the asbestos survey shall be performed by a state Certified Asbestos
Consultant (CAC). The report shall include a section on lead, which shall be
performed by a state Certified Lead Inspector/Assessor. Additional hazardous
materials to be considered by the industrial hygienist shall include: mercury (in
thermostats, switches, fluorescent light), polychlorinated biphenyls (PCBs)
(including light Ballast), and fuels, pesticides, and batteries.
Water Resources
51. Connections to the sewer or storm drains require a sewer permit from the PWD -
Civil Engineering Division. Connections to storm drains owned by Los Angeles
County require a permit from the L.A. County Department of Public Works.
52. Parking areas and structures and other facilities generating wastewater with
potential oil and grease content are required to pretreat the wastewater before
discharging to the City storm drain or sewer system. Pretreatment will require that
a clarifier or oil/water separator be installed and maintained on site.
53. If the project involves dewatering, developer/contractor shall contact the LA
Regional Water Quality Control Board (RWQCB) to obtain an NPDES Permit for
discharge of groundwater from construction dewatering to surface water. For
more information refer to: http://www.waterboards.ca.gov/losangeles/ and search
for Order # R4-2003-0111.
54. Developer shall not directly connect to a public storm drain pipe or direct site
drainage to the public alley.
55. All existing sanitary sewer “house connections” to be abandoned, shall be
removed and capped at the “Y” connections.
56. The fire services and domestic services 3-inches or greater must be above ground,
on the applicant’s site, readily accessible for testing. Commercial or residential
units are required to either have an individual water meter or a master meter with
sub-meters.
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57. Developer is required to meet state cross-connection and potable water sanitation
guidelines. Refer to requirements and comply with the cross-connections
guidelines available at:
http://www.lapublichealth.org/eh/progs/envirp/ehcross.htm. Prior to issuance of a
Certificate of Occupancy, a cross-connection inspection shall be completed.
58. All new restaurants and cooking facilities at the site are required to install Gravity
Grease Interceptors to pretreat wastewater containing grease. The minimum
capacity of the interceptor shall be determined by using table 10-3 of the 2007
Uniform Plumbing Code, Section 1014.3. All units shall be fitted with a standard
final-stage sample box. The 2007 Uniform Plumbing Code guideline in sizing
Gravity Grease Interceptors is intended as a minimum requirement and may be
increased at the discretion of PWD, Water Resources Protection Program.
59. Plumbing fixtures that meet the standards for 20% water use reduction specified
in the California Green Building Standards Code are required on all new
development and remodeling where plumbing is to be added.
Urban Water Runoff Mitigation
Public Streets & Right-of-Way
60. Unless otherwise approved by the PWD, all sidewalks shall be kept clear and
passable during the grading and construction phase of the project.
Resource Recovery and Recycling
61. Development plans must show the refuse and recycling (RR) area dimensions to
demonstrate adequate and easily accessible area. If the RR area is completely
enclosed, then lighting, ventilation and floor drain connected to sewer will be
required. Section 9.04.10.02.151 of the SMMC has dimensional requirements for
various sizes and types of projects. Developments that place the RR area in
subterranean garages must also provide a bin staging area on their property for the
bins to be placed for collection.
62. Contact Resource Recovery and Recycling RRR division to obtain dimensions of
the refuse recycling enclosure.
63. Prior to issuance of a building permit, submit a Waste Management Plan, a map
of the enclosure and staging area with dimensions and a recycling plan to the
RRR Division for its approval. The State of California AB 341 requires any multi-
family building housing 5 units or more to have a recycling program in place for
its tenants. All commercial businesses generating 4 cubic yards of trash per week
must also have a recycling program in place for its employees and
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clients/customers. Show compliance with these requirements on the building
plans. Visit the Resource Recovery and Recycling (RRR) website or contact the
RRR Division for requirements of the Waste Management Plan and to obtain the
minimum dimensions of the refuse recycling enclosure. The recycling plan shall
include:
h. List of materials such as white paper, computer paper, metal cans, and
glass to be recycled;
i. Location of recycling bins;
j. Designated recycling coordinator;
k. Nature and extent of internal and external pick-up service;
l. Pick-up schedule; and
m. Plan to inform tenants/ occupants of service.
Construction Period Mitigation
64. A construction period mitigation plan shall be prepared by the applicant for
approval by the PWD prior to issuance of a building permit. The approved
mitigation plan shall be posted on the site for the duration of the project
construction and shall be produced upon request. As applicable, this plan shall:
n. Specify the names, addresses, telephone numbers and business license
numbers of all contractors and subcontractors as well as the developer and
architect;
o. Describe how demolition of any existing structures is to be accomplished;
p. Indicate where any cranes are to be located for erection/construction;
q. Describe how much of the public street, alleyway, or sidewalk is proposed
to be used in conjunction with construction;
r. Set forth the extent and nature of any pile-driving operations;
s. Describe the length and number of any tiebacks which must extend under
the public right-of-way and other private properties;
t. Specify the nature and extent of any dewatering and its effect on any
adjacent buildings;
u. Describe anticipated construction-related truck routes, number of truck
trips, hours of hauling and parking location;
v. Specify the nature and extent of any helicopter hauling;
w. State whether any construction activity beyond normally permitted hours
is proposed;
x. Describe any proposed construction noise mitigation measures, including
measures to limit the duration of idling construction trucks;
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y. Describe construction-period security measures including any fencing,
lighting, and security personnel;
z. Provide a grading and drainage plan;
aa. Provide a construction-period parking plan which shall minimize use of
public streets for parking;
bb. List a designated on-site construction manager;
cc. Provide a construction materials recycling plan which seeks to maximize
the reuse/recycling of construction waste;
dd. Provide a plan regarding use of recycled and low-environmental-impact
materials in building construction; and
ee. Provide a construction period urban runoff control plan.
Air Quality
65. Dust generated by the development activities shall be kept to a minimum with a
goal of retaining dust on the site through implementation of the following
measures recommended by the SCAQMD Rule 403 Handbook, as applicable:
• During clearing, grading, earth moving, excavation, or transportation of
cut or fill materials, water trucks or sprinkler systems are to be used to the
extent necessary to prevent dust from leaving the site and to create a crust
after each day’s activities cease.
• Vehicles hauling dirt or other construction debris from the site shall cover
any open load with a tarpaulin or other secure covering to minimize dust
emissions. Immediately after commencing dirt removal from the site, the
general contractor shall provide the City with written certification that all
trucks leaving the site are covered in accordance with this condition of
approval.
• During clearing, grading, earth moving, excavation, or transportation of
cut or fill materials, streets and sidewalks within 150 feet of the site perimeter
shall be swept and cleaned a minimum of twice weekly or as frequently as
required by the PWD.
• During construction, water trucks or sprinkler systems shall be used to
keep all areas of vehicle movement damp enough to prevent dust from leaving
the site. At a minimum, this would include wetting down such areas in the
later morning and after work is completed for the day and whenever wind
exceeds 15 miles per hour.
• Soil stockpiled for more than two days shall be covered, kept moist, or
treated with soil binders to prevent dust generation.
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66. Construction equipment used on the site shall meet the following conditions in
order to minimize NOx and ROC emissions:
• Diesel-powered equipment such as booster pumps or generators should be
replaced by electric equipment to the extent feasible; and
• The operation of heavy-duty construction equipment shall be limited to no
more than 5 pieces of equipment at one time.
Noise Attenuation
67. All diesel equipment shall be operated with closed engine doors and shall be
equipped with factory-recommended mufflers.
68. Electrical power shall be used to run air compressors and similar power tools.
FIRE
General Requirements
The following comments are to be included on plans, if applicable.
Requirements are based on the California Fire Code (CFC), the Santa Monica Municipal
Code (SMMC) and the California Building Code (CBC).
California Fire Code/ Santa Monica Fire Department Requirements
69. A fire apparatus access road shall be provided to within 150 feet of all exterior
walls of the first floor of the building. The route of the fire apparatus access road
shall be approved by the fire department. The 150 feet is measured by means of
an unobstructed route around the exterior of the building.
70. Apparatus access roads shall have a minimum unobstructed width of 20 feet. A
minimum vertical clearance of 13 feet 6 inches shall be provided for the apparatus
access roads.
71. Dead-end fire apparatus access roads in excess of 150 feet in length shall be
provided with an approved means for turning around the apparatus.
72. A “Knox” key storage box shall be provided for ALL new construction. For
buildings, other than high-rise, a minimum of 3 complete sets of keys shall be
provided. Keys shall be provided for all exterior entry doors, fire protection
equipment control equipment rooms, mechanical and electrical rooms, elevator
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controls and equipment spaces, etc. For high-rise buildings, 6 complete sets are
required.
73. Santa Monica Municipal Code Chapter 8 section 8.44.050 requires an approved
automatic fire sprinkler system in ALL new construction and certain remodels or
additions. Any building that does not have a designated occupant and use at the
time fire sprinkler plans are submitted for approval, the system shall be designed
and installed to deliver a minimum density of not less than that required for
ordinary hazard, Group 2, with a minimum design area of not less than three
thousand square feet. Plans and specifications for fire sprinkler systems shall be
submitted and approved prior to system installation.
74. Buildings four or more stories in height shall be provided with not less than one
standpipe during construction.
75. The standpipe(s) shall be installed before the progress of construction is more
than 35- feet above grade. Two-and-one-half-inch valve hose connections shall be
provided at approved, accessible locations adjacent to useable stairs. Temporary
standpipes shall be capable of delivering a minimum demand of 500 gpm at 100-
psi residual pressure. Pumping equipment shall be capable of providing the
required pressure and volume.
76. Provide Multipurpose Dry Chemical type fire extinguishers with a minimum
rating of 2A-10B:C. Extinguishers shall be located on every floor or level.
Maximum travel distance from any point in space or building shall not exceed 75
feet. Extinguishers shall be mounted on wall or installed in cabinet no higher than
4 ft. above finished floor and plainly visible and readily accessible or signage
shall be provided.
77. An automatic fire extinguishing system complying with UL 300 shall be provided
to protect commercial-type cooking or heating equipment that produces grease-
laden vapors. A separate plan submittal is required for the installation of the
system and shall be in accordance with UFC Article 10, NFPA 17A and NFPA
96. Provide a Class “K” type portable fire extinguisher within 30 feet the kitchen
appliances emitting grease-laden vapors.
78. Every building and/or business suite is required to post address numbers that are
visible from the street and alley. Address numbers shall be a minimum of six (6)
inches in height and contrast with their background. Suite or room numbers shall
be a minimum of four (4) inches in height and contrast with their background.
Santa Monica Municipal Code Chapter 8 Section 8.48.130 (l) (1)
79. When more than one exit is required they shall be arranged so that it is possible to
go in either direction to a separate exit, except deadends not exceeding 20 feet,
and 50 feet in fully sprinklered buildings.
80. Exit and directional signs shall be installed at every required exit doorway,
intersection of corridors, exit stairways and at other such locations and intervals
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Packet Pg. 1028 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
as necessary to clearly indicate the direction of egress. This occupancy/use
requires the installation of approved floor level exit pathway marking. Exit doors
shall be openable from the inside without the use of a key, special effort or
knowledge.
81. Show ALL door hardware intended for installation on Exit doors.
82. In buildings two stories or more in height an approved floor plan providing
emergency procedure information shall be posted at the entrance to each stairway,
in every elevator lobby, and immediately inside all entrances to the building. The
information shall be posted so that it describes the represented floor and can be
easily seen upon entering the floor level or the building. Required information
shall meet the minimum standards established in the Santa Monica Fire
Department, Fire Prevention Division, information sheet entitled “Evacuation
Floor Plan Signs.” (California Code of Regulations Title 19 Section 3.09)
83. Stairway Identification shall be in compliance with CBC 1022.8
84. In buildings two stories in height at least one elevator shall conform to the
California Building Code Chapter 30 section 3003.5a for General Stretcher
Requirements for medical emergency use.
ff. The elevator entrance shall not be less than 42 inches wide by 72 inches
high.
gg. The elevator car shall have a minimum clear distance between walls
excluding return panels of not less than 80 inches by 54 inches.
hh. Medical emergency elevators shall be identified by the international
symbol (star of life) for emergency elevator use. The symbol shall be not
less than 3-inches in size.
85. Storage, dispensing or use of any flammable or combustible liquids, flammable
compressed gases or other hazardous materials shall comply with the Uniform
Fire Code. The Santa Monica Fire Department prior to any materials being stored
or used on site shall approve the storage and use of any hazardous materials.
Complete and submit a “Consolidated Permit Application Package.” Copies may
be obtained by calling (310) 458-8915.
86. Alarm-initiating devices, alarm-notification devices and other fire alarm system
components shall be designed and installed in accordance with the appropriate
standards of Chapter 35 of the Building Code, and the National Fire Alarm Code
NFPA 72. The fire alarm system shall include visual notification appliances for
warning the hearing impaired. Approved visual appliances shall be installed in
ALL rooms except private (individual) offices, closets, etc.
87. An approved fire alarm system shall be installed as follows:
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Packet Pg. 1029 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
88. Group A Occupancies with an occupant load of 1,000 or more shall be provided
with a manual fire alarm system and an approved prerecorded message
announcement using an approved voice communication system. Emergency
power shall be provided for the voice communication system.
89. Group E Occupancies having occupant loads of 50 or more shall be provided with
an approved manual fire alarm system.
90. Group R-1, R-2 Apartment houses containing 16 or more dwelling units, in
building three or more stories in height R-2.1 and R-4 Occupancies shall be
provided with a manual alarm system. Smoke detectors shall be provided in all
common areas and interior corridors of required exits. Recreational, laundry,
furnace rooms and similar areas shall be provided with heat detectors.
91. Plans and specifications for fire alarm systems shall be submitted and approved
prior to system installation
Santa Monica Fire Department - Fire Prevention Policy Number 5-1
Subject: Fire Apparatus Access Road Requirements
Scope: This policy identifies the minimum standards for apparatus access roads required
by California Fire Code, Section 503, if applicable.
Application
92. Fire apparatus access roads shall comply with the following minimum standards:
ii. The minimum clear width shall be not less than 20 feet. No parking,
stopping or standing of vehicles is permitted in this clear width.
jj. When fire hydrants or fire department connections to fire sprinkler
systems are located on fire apparatus access roads the minimum width
shall be 26 feet. This additional width shall extend for 20 feet on each side
of the centerline of the fire hydrant or fire department connection.
kk. The minimum vertical clearance shall be 13 feet, 6 inches.
ll. The minimum turn radius for all access road turns shall be not less than 39
feet for the inside radius and 45 feet for the outside radius.
mm. Dead-end access roads in excess of 150 feet in length shall be provided
with either a 96 feet diameter “cul-de-sac,” 60 foot “Y” or 120-foot
“hammerhead” to allow the apparatus to turn.
nn. The surface shall be designed and maintained to support the imposed loads
of at least 75,000-pound and shall be “all-weather.” An “all-weather”
surface is asphalt, concrete or other approved driving surface capable of
supporting the load.
93. Gates installed on fire apparatus access roads shall comply with the following:
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Packet Pg. 1030 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
oo. The width of any gate installed on a fire apparatus access road shall be a
minimum of 20 feet.
pp. Gates may be of the swinging or sliding type.
qq. Gates shall be constructed of materials that will allow for manual
operation by one person.
rr. All gate components shall be maintained in an operative condition at all
times and shall be repaired or replaced when defective.
ss. Electric gates shall be equipped with a means of opening the gate by fire
department personnel for emergency access. The Fire Prevention Division
shall approve emergency opening devices.
tt. Manual opening gates may be locked with a padlock, as long it is
accessible to be opened by means of forcible entry tools.
uu. The Fire Prevention Division shall approve locking device specification.
94. Fire apparatus access roads shall be marked with permanent NO PARKING –
FIRE LANE CVC SECTION 22500.1. Signs shall have a minimum dimension of
12 inches wide and 18 inches high having red letters on a white reflective
background.
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Packet Pg. 1031 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
vv. Fire apparatus access roads signs and placement shall comply with the
following:
i. Fire Apparatus access roads 20 to 26 feet wide must be posted on
both sides as a fire lane.
ii. Fire Apparatus access roads 26 to 32 feet wide must be posted on
one side as a fire lane.
95. Buildings or facilities exceeding 30 feet in height or more than 3 stories in height
shall have at least 2 fire apparatus access roads for each structure.
96. Fire apparatus access roads for commercial and industrial development shall
comply with the following:
iii. Buildings or facilities exceeding 30 feet in height or more than 3 stories in
height shall have at least 2 means of fire apparatus access for each
structure.
iv. Buildings or facilities having a gross floor area of more than 62,000
square feet shall be provided with 2 fire apparatus access roads.
v. When two access roads are required, they shall be placed a distance apart
equal to not less than one half of the length of the maximum overall
diagonal dimension of the property or area to be accessed measured in a
straight line between access.
97. Aerial apparatus access roads shall comply with the following:
vi. Buildings or portions of buildings or facilities exceeding 30 feet in height
from the lowest point of Fire Department access shall be provided shall be
provided with approved apparatus access roads capable of accommodating
aerial apparatus.
vii. Apparatus access roads shall have a minimum width of 26 feet in the
immediate vicinity of any building or portion of a building more than 30
feet in height.
viii. At least one of the required access roads meeting this condition shall be
located within a minimum of 15 feet and maximum of 30 feet from the
building and shall be a positioned parallel to one entire side of the
building.
California Building Code / Santa Monica Fire Department Requirements
Occupancy Classification and Division
• If a change in occupancy or use, identify the existing and all proposed new
occupancy classifications and uses
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Packet Pg. 1032 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
• Assembly (A-1, A-2, A-3), Business (B), Mercantile (M), Residential (R), etc.
• Include all accessory uses
Building Height
• Height in feet
• Number of stories
• Detail increase in allowable height
• Type I (II-FR.) buildings housing Group B office or Group R, Division 1
Occupancies each having floors used for human occupancy located more than
55 feet above the lowest level of fire department vehicle access shall comply
with CBC Section 403.
a. Automatic sprinkler system.
b. Smoke-detection systems.
c. Smoke control system conforming to Chapter 9 section 909.
d. Fire alarm and communication systems.
1. Emergency voice alarm signaling system.
2. Fire department communication system.
e. Central control station. (96 square feet minimum with a
minimum dimension of 8’ ft)
f. {omitted}
g. Elevators.
h. Standby power and light and emergency systems.
i. Exits.
j. Seismic consideration.
Total Floor Area of Building or Project
• Basic Allowable Floor Area
• Floor Area for each room or area
• Detail allowable area increase calculations
Corridor Construction
• Type of Construction
• Detail any and all code exceptions being used
Occupant Load Calculations
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Packet Pg. 1033 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
• Occupancy Classification for each room or area.
• Occupant Load Calculation for each room or area based on use or occupancy
• Total Proposed Occupant Load
Means of Egress
• Exit width calculations
• Exit path of travel
• Exit Signage and Pathway Illumination (low level exit signage)
Atria - Atria shall comply with CBC Section 404 as follows:
• Atria shall not be permitted in buildings containing Group H Occupancies.
• The entire building shall be sprinklered.
• A mechanically operated smoke-control system meeting the requirements of
Section 909 and 909.9 shall be installed.
• Smoke detectors shall be installed in accordance with the Fire Code.
• Except for open exit balconies within the atrium, the atrium shall be separated
from adjacent spaces by one-hour fire-resistive construction. See exceptions to
Section 404.6.
• When a required exit enters the atrium space, the travel distance from the
doorway of the tenant space to an enclosed stairway, horizontal exit, exterior
door or exit passageway shall not exceed 200 feet.
• In other than jails, prisons and reformatories, sleeping rooms of Group I
Occupancies shall not have required exits through the atrium.
• Standby power shall be provided for the atrium and tenant space smoke-
control system. Sections 404.7 and 909.11.
• The interior finish for walls and ceilings of the atrium and all unseparated
tenant spaces shall be Class I. Section 404.8.
Atriums of a height greater than 20 feet, measured from the ceiling sprinklers, shall only
contain furnishings and decorative materials with potential heat of combustion less than
9,000 Btu’s per pound. All furnishings to comply with California Bureau of Home
Furnishings, Technical Bulletin 133, “Flammability Test for Seating Furniture in Public
Occupancies.”
All furnishings in public areas shall comply with California Bureau of Home Furnishings,
Technical Bulletin 133, “Flammability Test for Seating Furniture in Public Occupancies.”
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Packet Pg. 1034 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Los Angeles County Fire
Fire Flow Requirements
I. INTRODUCTION
A. Purpose: To provide Department standards for fire flow, hydrant spacing
and specifications.
B. Scope: Informational to the general public and instructional to all
individuals, companies, or corporations involved in the subdivision of land,
construction of buildings, or alterations and/or installation of fire protection
water systems and hydrants.
C. Author: The Deputy Chief of the Prevention Services Bureau through
the Assistant Fire Chief (Fire Marshal) of the Fire Prevention Division
is responsible for the origin and maintenance of this regulation.
D. Definitions:
1. GPM – gallons per minute
2. psi – pounds per square inch
3. Detached condominiums – single detached dwelling units on
land owned in common
4. Multiple family dwellings – three or more dwelling units
attached
II. RESPONSIBILITY
A. Land Development Unit
1. The Department’s Land Development Unit shall review all
subdivisions of land and apply fire flow and hydrant spacing
requirements in accordance with this regulation and the present
zoning of the subdivision or allowed land use as approved by the
County’s Regional Planning Commission or city planning
department.
B. Fire Prevention Engineering Section
1. The Department’s Fire Prevention Engineering Section shall
review building plans and apply fire flow and hydrant spacing
requirements in accordance with this regulation.
III. POLICY
A. The procedures, standards, and policies contained herein are provided
to ensure the adequacy of, and access to, fire protection water and shall
be enforced by all Department personnel.
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Packet Pg. 1035 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
IV. PROCEDURES
A. Land development: fire flow, duration of flow, and hydrant spacing
The following requirements apply to land development issues such as: tract
and parcel maps, conditional use permits, zone changes, lot line adjustments,
planned unit developments, etc.
1. Residential
Fire Zones 3
Very High Fire Hazard Severity Zone (VHFHSZ)
Fire Flow
Duration
of Flow
Public
Hydrant
Spacing
a. Single family dwelling
and detached condominiums
(1 – 4 Units)
(Under 5,000 square feet)
1,250 GPM 2 hrs. 600 ft.
b.
Detached condominium
(5 or more units)
(Under 5,000 square feet)
1,500 GPM
2 hrs.
300 ft.
c.
Two family dwellings
(Duplexes)
1,500 GPM
2 hrs.
600 ft.
NOTE: FOR SINGLE FAMILY DWELLINGS OVER
5,000
SQUARE FEET. SEE, TABLE 1 FOR FIRE
FLOW REQUIREMENTS PER BUILDING
SIZE.
2. Multiple family dwellings, hotels, high rise, commercial, industrial, etc.
a. Due to the undetermined building designs for new land
development projects (undeveloped land), the required fire flow
shall be: 5,000 GPM 5 hrs. 300 ft.
NOTE: REDUCTION IN FIRE FLOW IN ACCORDANCE
WITH TABLE 1.
b. Land development projects consisting of lots having existing
structures shall be in compliance with Table 1 (fire flow per
building size). This standard applies to multiple family dwellings,
hotels, high rise, commercial, industrial, etc.
NOTE: FIRE FLOWS PRECEDING ARE MEASURED AT
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Packet Pg. 1036 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
20 POUNDS PER SQUARE INCH RESIDUAL
PRESSURE.
B. Building plans
The Department’s Fire Prevention Engineering Section shall review building plans
and apply fire flow requirements and hydrant spacing in accordance with the
following:
1. Residential
Building Occupancy Classification
a. Single family dwellings - Fire Zone 3 (Less than 5,000 square feet)
Fire Flow
Duration
of Flow
Public Hydrant
Spacing
On a lot of one acre or more 750 GPM 2 hrs. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs 600 ft.
b. Single family dwellings – VHFHSZ (Less than 5,000 square feet)
On a lot of one acre or more 1,000 GPM 2 hrs. 600 ft.
On a lot less than one acre 1,250 GPM 2 hrs 600 ft.
NOTE: FOR SINGLE FAMILY DWELLINGS GREATER THAN 5,000
SQUARE FEET IN AREA SEE TABLE
Fire Flow
Duration
of Flow
Public Hydrant
Spacing
c. Two family dwellings – VHFHSZ (Less than 5,000 square feet)
Duplexes 1,500 GPM 2 hrs 600 ft.
2. Mobile Home Park
a. Recreation Buildings Refer to Table 1 for fire flow according to building
size.
b. Mobile Home Park 1,250 GPM 2 hrs 600 ft.
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Packet Pg. 1037 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
3. Multiple residential, apartments, single family residences (greater than
5,000 square feet), private schools, hotels, high rise, commercial,
industrial, etc. (R-1, E, B, A, I, H, F, M, S) (see Table 1).
C. Public fire hydrant requirements
1. Fire hydrants shall be required at intersections and along access ways as
spacing requirements dictate
2. Spacing
a. Cul-de-sac
When cul-de-sac depth exceeds 450’ (residential) or
200’ (commercial), hydrants shall be required at mid-
block. Additional hydrants will be required if hydrant
spacing exceeds specified distances.
b. Single family dwellings
Fire hydrant spacing of 600 feet
NOTE: The following guidelines shall be used in
meeting single family dwellings hydrant
spacing requirements:
(1) Urban properties (more than one unit per acre):
No portion of lot frontage should be more than
450’ via vehicular access from a public hydrant.
(2) Non-Urban Properties (less than one unit per acre):
No portion of a structure should be placed on a
lot where it exceeds 750’ via vehicular access
from a properly spaced public hydrant that meets
the required fire flow.
c. All occupancies
Other than single family dwellings, such as commercial,
industrial, multi-family dwellings, private schools,
institutions, detached condominiums (five or more
units), etc.
Fire hydrant spacing shall be 300 feet.
NOTE: The following guidelines shall be used in
meeting the hydrant spacing requirements.
(1) No portion of lot frontage shall be more than
200 feet via vehicular access from a public hydrant.
(2) No portion of a building should exceed 400 feet
via vehicular access from a properly spaced public
hydrant.
d. Supplemental fire protection
When a structure cannot meet the required public
hydrant spacing distances, supplemental fire protection
shall be required.
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Packet Pg. 1038 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
NOTE: Supplemental fire protection is not limited to
the installation of on-site fire hydrants; it may include
automatic extinguishing systems.
3. Hydrant location requirements - both sides of a street
Hydrants shall be required on both sides of the street whenever:
a. Streets having raised median center dividers that make access to
hydrants difficult, causes time delay, and/or creates undue hazard.
b. For situations other than those listed in “a” above, the Department’s
inspector’s judgment shall be used. The following items shall be
considered when determining hydrant locations:
(1) Excessive traffic loads, major arterial
route, in which traffic would be difficult to
detour.
(2) Lack of adjacent parallel public streets in
which traffic could be redirected (e.g.,
Pacific Coast Highway).
(3) Past practices in the area.
(4) Possibility of future development in the
area.
(5) Type of development (i.e., flag-lot units,
large apartment or condo complex, etc.).
(6) Accessibility to existing hydrants
(7) Possibility of the existing street having a
raised median center divider in the near
future.
D. On-Site Hydrant Requirements
1. When any portion of a proposed structure exceeds (via vehicular access)
the allowable distances from a public hydrant and on-site hydrants are
required, the following spacing requirements shall be met:
a. Spacing distance between on-site hydrants shall be 300 to 600 feet.
(1) Design features shall assist in allowing
distance modifications.
b. Factors considered when allowing distance modifications.
(1) Only sprinklered buildings qualify for the
maximum spacing of 600 feet.
(2) For non-sprinklered buildings,
consideration should be given to fire
protection, access doors, outside storage,
etc. Distance between hydrants should not
exceed 400 feet.
2. Fire flow
a. All on-site fire hydrants shall flow a minimum of 1,250 gallons per
minute at 20 psi for a duration of two hours. If more than one on-
site fire hydrant is required, the on-site fire flow shall be at least
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Packet Pg. 1039 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
2,500 gallons per minute at 20 psi, flowing from two hydrants
simultaneously. On site flow may be greater depending upon the
size of the structure and the distance from public hydrants.
NOTE: ONE OF THE TWO HYDRANTS TESTED SHALL BE
THE FARTHEST FROM THE PUBLIC WATER
SOURCE.
3. Distance from structures
All on-site hydrants shall be installed a minimum of 25 feet from a
structure or protected by a two-hour firewall.
4. Shut-off valves
All on-site hydrants shall be equipped with a shut-off (gate) valve,
which shall be located as follows:
a. Minimum distance to the hydrant 10 feet.
b. Maximum distance from the hydrant 25 feet
5. Inspection of new installations
All new on-site hydrants and underground installations are subject
to inspection of the following items by a representative of the
Department:
a. Piping materials and the bracing and support thereof.
b. A hydrostatic test of 200 psi for two hours.
c. Adequate flushing of the installation.
d. Flow test to satisfy required fire flow.
(1) Hydrants shall be painted with two coats of red primer and
one coat of red paint, with the exception of the stem and
threads, prior to flow test and acceptance of the system.
6. Maintenance
It shall be the responsibility of the property management company,
the homeowners association, or the property owner to maintain on-
site hydrants.
a. Hydrants shall be painted with two coats of red primer and one coat
of red, with the exception of the stem and threads, prior to flow test
and acceptance of the system.
b. No barricades, walls, fences, landscaping, etc., shall be installed or
planted within three feet of a fire hydrant.
E. Public Hydrant Flow Procedure
The minimum acceptable flow from any existing public hydrant shall be 1,000
GPM unless the required fire flow is less. Hydrants used to satisfy fire
flow requirements will be determined by the following items:
1. Only hydrants that meet spacing requirements are acceptable
for meeting fire flow requirements.
2. In order to meet the required fire flow:
a. Flow closest hydrant and calculate to determine flow at 20
pounds per square inch residual pressure. If the calculated
flow does not meet the fire flow requirement, the next closest
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Packet Pg. 1040 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
hydrant shall be flowed simultaneously with the first
hydrant, providing it meets the spacing requirement, etc.
b. If more than one hydrant is to be flowed in order to meet
the required fire flow, the number of hydrants shall be
flowed as follows:
One hydrant 1,250 GPM and below
Two hydrants 1,251– 3,500 GPM flowing simultaneously
Three hydrants 3,501– 5,000 GPM flowing simultaneously
F. Hydrant Upgrade Policy
1. Existing single outlet 2 1/2” inch hydrants shall be upgraded to a
double outlet 6” x 4” x 2 1/2” hydrant when the required fire flow
exceeds 1,250 GPM.
2. An upgrade of the fire hydrant will not be required if the required fire
flow is between the minimum requirement of 750 gallons per minute,
up to and including 1,250 gallons per minute, and the existing public
water system will provide the required fire flow through an existing
wharf fire hydrant.
3. All new required fire hydrant installations shall be approved
6” x 4” x 2 1/2” fire hydrants.
4. When water main improvements are required to meet GPM flow,
and the existing water main has single outlet 2 1/2” fire
hydrant(s), then a hydrant(s) upgrade will be required. This
upgrade shall apply regardless of flow requirements.
5. The owner-developer shall be responsible for making the
necessary arrangements with the local water purveyor for the
installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are not
provided (see Figures 1, 2, and 3 following on pages 11 and 12).
G. Hydrant Specifications
All required public and on-site fire hydrants shall be installed to the
following specifications prior to flow test and acceptance of the system.
1. Hydrants shall be:
a. Installed so that the center line of the lowest outlet is
between 14 and 24 inches above finished grade
b. Installed so that the front of the riser is between 12 and 24
inches behind the curb face
c. Installed with outlets facing the curb at a 45-degree angle to
the curb line if there are double outlet hydrants
d. Similar to the type of construction which conforms to current
A.W.W.A. Standards
e. Provided with three-foot unobstructed clearance on all sides.
f. Provided with approved plastic caps
g. Painted with two coats of red primer and one coat of traffic
signal yellow for public hydrants and one coat of red for on-
site hydrants, with the exception of the stems and threads
2. Underground shut-off valves are to be located:
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Packet Pg. 1041 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
a. A minimum distance of 10 feet from the hydrant
b. A maximum distance of 25 feet from the hydrant
Exception: Location can be less than 10 feet when the water
main is already installed and the 10-foot minimum distance
cannot be satisfied.
3. All new water mains, laterals, gate valves, buries, and riser shall
be a minimum of six inches inside diameter.
4. When sidewalks are contiguous with a curb and are five feet wide
or less, fire hydrants shall be placed immediately behind the
sidewalk. Under no circumstances shall hydrants be more than six
feet from a curb line.
5. The owner-developer shall be responsible for making the
necessary arrangements with the local water purveyor for the
installation of all public facilities.
6. Approved fire hydrant barricades shall be installed if curbs are
not provided (see Figures 1, 2, and 3 following on pages 11 and
12).
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Packet Pg. 1042 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Barricade/Clearance Details
Figure 1
Figure 2
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Packet Pg. 1043 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Figure 3
Notes:
1. Constructed of steel not less than four inches in diameter, six inches if heavy
truck traffic is anticipated, schedule 40 steel and concrete filled.
2. Posts shall be set not less than three feet deep in a concrete footing of not less
than 15 inches in diameter, with the top of the posts not less than three feet
above ground and not less than three feet from the hydrant
3. Posts, fences, vehicles, growth, trash storage and other materials or things shall
not be placed or kept near fire hydrants in a manner that would prevent fire
hydrants from being immediately discernable.
4. If hydrant is to be barricaded, no barricade shall be constructed in front of the
hydrant outlets (Figure 2, shaded area).
5. The exact location of barricades may be changed by the field inspector during a
field inspection.
6. The steel pipe above ground shall be painted a minimum of two field coats of
primer.
7. Two finish coats of “traffic signal yellow” shall be used for fire hydrant
barricades.
8. Figure 3 shows hydrant hook up during fireground operations. Notice apparatus
(hydra-assist-valve) connected to hydrant and the required area. Figure 3 shows
the importance of not constructing barricades or other obstructions in front of
hydrant outlets.
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Packet Pg. 1044 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
I. Blue reflective hydrant markers replacement policy
1. Purpose: To provide information regarding the replacement of
blue reflective hydrant markers, following street construction or
repair work.
a. Fire station personnel shall inform Department of Public
Works Road Construction Inspectors of the importance of
the blue reflective hydrant markers, and encourage them to
enforce their Department permit requirement, that streets and
roads be returned to their original condition, following
construction or repair work.
b. When street construction or repair work occurs within this
Department’s jurisdiction, the nearest Department of Public
Works Permit Office shall be contacted. The location can be
found by searching for the jurisdiction office in the “County
of Los Angeles Telephone Directory” under “Department of
Public Works Road Maintenance Division.” The importance
of the blue reflective hydrant markers should be explained,
and the requirement encouraged that the street be returned to
its original condition, by replacing the hydrant markers.
TABLE 1 *
BUILDING SIZE
(First floor area) Fire Flow* (1) (2) Duration Hydrant Spacing
Under 3,000 sq. ft. 1,000 GPM 2 hrs 300 ft
3,000 to 4,999 sq. ft. 1,250 GPM 2 hrs 300 ft
5,000 to 7,999 sq. ft. 1,500 GPM 2 hrs 300 ft
8,000 to 9,999 sq. ft. 2,000 GPM 2 hrs 300 ft
10,000 to 14,999 sq. ft. 2,500 GPM 2 hrs 300 ft
15,000 to 19,999 sq. ft. 3,000 GPM 3 hrs 300 ft
20,000 to 24,999 sq. ft. 3,500 GPM 3 hrs 300 ft
25,000 to 29,999 sq. ft. 4,000 GPM 4 hrs 300 ft
30,000 to 34,999 sq. ft. 4,500 GPM 4 hrs 300 ft
35,000 or more sq. ft. 5,000 GPM 5 hrs 300 ft
* See applicable footnotes below:
(FIRE FLOWS MEASURED AT 20 POUNDS PER SQUARE INCH
RESIDUAL PRESSURE)
(1) Conditions requiring additional fire flow.
a. Each story above ground level - add 500 GPM per story.
b. Any exposure within 50 feet - add a total of 500 GPM.
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Packet Pg. 1045 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
c. Any high-rise building (as determined by the jurisdictional building code)
the fire flow shall be a
minimum of 3,500 GPM for 3 hours at 20 psi.
d. Any flow may be increased up to 1,000 GPM for a hazardous occupancy.
(2) Reductions in fire flow shall be cumulative for type of construction and a fully
sprinklered building. The following allowances and/or additions may be made
to standard fire flow requirements:
a. A 25% reduction shall be granted for the following types of construction:
Type I-F.R, Type II-F.R., Type II one-hour, Type II-N, Type III one-hour,
Type III-N, Type IV, Type IV one hour, and Type V one-hour. This
reduction shall be automatic and credited on all projects using these types
of construction. Credit will not be given for Type V-N structures (to a
minimum of 2,000 GPM available fire flow).
b. A 25% reduction shall be granted for fully sprinklered buildings (to a
minimum of 2,000 GPM available fire flow).
c. When determining required fire flows for structures that total 70,000
square feet or greater, such flows shall not be reduced below 3,500 GPM
at 20 psi for three hours.
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Packet Pg. 1046 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT E
SMMC ARTICLE 9 (PLANNING AND ZONING)
On file with the City Clerk
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Packet Pg. 1047 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT F-1
LOCAL HIRING PROGRAM FOR CONSTRUCTION
Local Hiring Policy For Construction. Developer shall implement a local hiring policy
(the “Local Hiring Policy”) for construction of the Project, consistent with the following
guidelines:
1. Purpose. The purpose of the Local Hiring Policy is to facilitate the employment
by Developer and its contractors at the Project of residents of the City of Santa
Monica (the “Targeted Job Applicants”), and in particular, those residents who
are “Low-Income Individuals” (defined below). This policy applies to job
openings (not jobs that are already filled) provided, however, that it does not
apply to jobs filled by the rehiring of former employees or the transfer of an
existing employee from another location to the Project site.
2. Findings.
a. Approximately 73,000-74,000 individuals work in the City. The City has
a resident labor force of approximately 56,800. However, only about one-
third (32.2 percent) of the City’s resident labor force works at jobs located
in the City, with the balance working outside of the City. Consequently, a
significant portion of the City’s resident and non-resident work force is
required to commute long distances to find work, causing increased traffic
on state highways, increased pollution, increased use of gas and other
fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City
are forced to leave for work very early in the morning and return late in
the evening, often leaving children and teenagers alone and unsupervised
during the hours between school and the parent return from work outside
the area.
c. Absentee parents and unsupervised youth can result in increased problems
for families, communities and the City as a whole, including, but not
limited to, increased crime, more frequent and serious injuries, poor
homework accomplishments, failing grades and increased high school
dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are
defined as low-income households or lower, with eleven percent of these
households defined as extremely low income and eight percent very low
income. Approximately 10.5% of the City’s residents are unemployed.
F-1
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Packet Pg. 1048 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
e. By ensuring that Targeted Job Applicants are aware of and have a fair
opportunity to compete for Project jobs, this local hiring policy will
facilitate job opportunities to City residents which would expand the
City’s employment base and reduce the impacts on the environment
caused by long commuting times to jobs outside the area.
3. Definitions.
a. “Contract” means a contract or other agreement for the providing of any
combination of labor, materials, supplies, and equipment to the
construction of the Project that will result in On-Site Jobs, directly or
indirectly, either pursuant to the terms of such contract or other agreement
or through one or more subcontracts.
b. “Contractor” means a prime contractor, a sub-contractor, or any other
entity that enters into a Contract with Developer for any portion or
component of the work necessary to construct the Project (excluding
architectural, design and other “soft” components of the construction of
the Project).
c. “Low Income Individual” means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income.
d. “Median Income” means the median income for the Los Angeles-Long
Beach Primary Metropolitan Statistical Area, as published from time to
time by the City in connection with its Affordable Housing Production
Program pursuant to SMMC Section 9.56.
e. “On-Site Jobs” means all jobs by a Contractor under a Contract for which
at least fifty percent (50%) of the work hours for such job requires the
employee to be at the Project site, regardless of whether such job is in the
nature of an employee or an independent contractor. On-Site Jobs shall not
include jobs at the Project site which will be performed by the
Contractor’s (including Theater Operator’s FF&E contractors’ and
subcontractors’) established work crew who have not been hired
specifically to work at the Project site.
4. Priority for Targeted Job Applicants. Subject to Section Error! Reference
source not found. below in this Exhibit ”F-1,” the Local Hiring Policy provides
that the Targeted Job Applicants shall be considered for each On-Site Job in the
following order of priority:
a. First Priority: Any resident of a household with no greater than 80%
Median Income that resides within the Low and Moderate Income Areas
indicated on the map attached to this Exhibit F-1;
b. Second Priority: Any resident of a household with no greater than 80%
Median Income that resides within the City; and
F-2
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Packet Pg. 1049 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
c. Third Priority: Any resident of a household with no greater than 80%
Median Income that resides within a five (5) mile radius of the project site.
5. Coverage. The Local Hiring Policy shall apply to all hiring for On-Site Jobs
related to the construction of the Project, by Developer and its Contractors.
6. Outreach. So that Targeted Job Applicants are made aware of the availability of
On-Site Jobs, Developer or its Contractors shall advertise available On-Site Jobs
in the Santa Monica Daily Press or similar local newspaper, or similar local
media and electronically on a City-sponsored website, if such a resource exists.
In addition, Developer shall consult with and provide written notice to at least two
first source hiring organizations, which may include but are not limited to the
following:
(i) Local first source hiring programs
(ii) Trade unions
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non-profit organizations involved in referring eligible applicants for
job opportunities
7. Hiring. Developer and its prime contractor shall consider in good faith all
applications submitted by Targeted Job Applicants for On-Site Jobs, in
accordance with their respective normal hiring practices. The City acknowledges
that the Contractors shall determine in their respective subjective business
judgment whether any particular Targeted Job Applicant is qualified to perform
the On-Site Job for which such Targeted Job Applicant has applied.
8. Term. The Local Hiring Policy shall continue to apply to the construction of the
Project until the earlier of the issuance of a temporary or final certificate of
occupancy for the Project by the City.
F-3
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F-4
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Packet Pg. 1051 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT F-2
LOCAL HIRING PROGRAM FOR PERMANENT EMPLOYMENT
Local Hiring Policy For Permanent Employment. The Theater Operator shall implement
a local hiring policy (the “Local Hiring Policy”), consistent with the following
guidelines:
1. Purpose. The purpose of the Local Hiring Policy is to facilitate the employment
by the commercial tenants of the Project of residents of the City of Santa Monica
(the “Targeted Job Applicants”), and in particular, those residents who are
“Low-Income Individuals” (defined below) by ensuring Targeted Job Applicants
are aware of Project employment opportunities and have a fair opportunity to
apply and compete for such jobs. The goal of this policy is local hiring. This
policy applies to job openings (not jobs that are already filled) provided, however,
that it does not apply to jobs filled by the rehiring of former employees or the
transfer of an existing employee from another location to the Project site.
2. Findings.
a. Approximately 73,000-74,000 individuals work in the City. The City has
a resident labor force of approximately 56,800. However, only about one-
third (32.2 percent) of the City’s resident labor force works at jobs located
in the City, with the balance working outside of the City. Consequently, a
significant portion of the City’s resident and non-resident work force is
required to commute long distances to find work, causing increased traffic
on state highways, increased pollution, increased use of gas and other
fuels and other serious environmental impacts.
b. Due to their employment outside of the City, many residents of the City
are forced to leave for work very early in the morning and return late in
the evening, often leaving children and teenagers alone and unsupervised
during the hours between school and the parent return from work outside
the area.
c. Absentee parents and unsupervised youth can result in increased problems
for families, communities and the City as a whole, including, but not
limited to, increased crime, more frequent and serious injuries, poor
homework accomplishments, failing grades and increased high school
dropout rates.
d. Of the approximately 45,000 households in the City, thirty percent are
defined as low-income households or lower, with eleven percent of these
households defined as extremely low income and eight percent very low
income. Approximately 10.5% of the City’s residents are unemployed.
F-5
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Packet Pg. 1052 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
e. By ensuring that Targeted Job Applicants are aware of and have a fair
opportunity to compete for Project jobs, this local hiring policy will
facilitate job opportunities to City residents which would expand the
City’s employment base and reduce the impacts on the environment
caused by long commuting times to jobs outside the area.
3. Definitions.
a. Low Income Individual” means a resident of the City of Santa Monica
whose household income is no greater than 80% of the Median Income.
b. “Median Income” means the median income for the Los Angeles-Long
Beach Primary Metropolitan Statistical Area, as published from time to
time by the City in connection with its Affordable Housing Production
Program pursuant to SMMC Section 9.56.
c. “On-Site Jobs” means all jobs hired by the Theater Operator for which at
least 50 percent of the work hours occur on the Project site within the non-
residential uses of greater than 1,500 gross square feet, regardless of
whether such job is in the nature of an employee or an independent
contractor.
d. “Project Site” means the theater premises only and no other portions of
Santa Monica Place.
4. Priority for Targeted Job Applicants. Subject to Section Error! Reference
source not found. below in this Exhibit ”F-2,” the Local Hiring Policy provides
that the Targeted Job Applicants shall be considered for each On-Site Job in the
following order of priority:
a. First Priority: Any resident of a household with no greater than 80%
Median Income that resides within the Low and Moderate Income Areas
indicated on the map attached to this Exhibit F-2;
b. Second Priority: Any resident of a household with no greater than 80%
Median Income that resides within the City; and
c. Third Priority: Any resident of a household with no greater than 80%
Median Income that resides within a five (5) mile radius of the project site.
For purposes of this Local Hiring Policy, the employer is authorized to rely on the
most recent year’s income tax records (W-2) and proof of residency (e.g. driver’s
license, utility bill, voter registration) if voluntarily submitted by a prospective job
applicant for purposes of assessing a Targeted Job Applicant’s place of residence
and income.
5. Coverage. The Local Hiring Policy shall apply to all hiring for On-Site Jobs.
Notwithstanding the foregoing, the Local Hiring Policy shall not apply to
F-6
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Packet Pg. 1053 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
temporary employees utilized while a permanent employee is temporarily absent
or while a replacement is being actively sought for a recently-departed permanent
employee. Furthermore, the Local Hiring Policy shall not preclude the re-hiring
of a prior employee or the transfer of an existing employee from another location.
6. Recruitment.
a. Local Hiring Goal - The Developer has established a local hiring goal for
Theater Operator of 40% of the total full and part-time jobs in the Project
being held by Santa Monica residents. There shall be no penalties to the
Developer, nor shall the Developer be deemed to be in default under the
Development Agreement, if such goal is not achieved. The Developer
shall report Theater Operator’s actual local hiring results to the City as
part of its annual report as mandated by Section 10.2 of the Development
Agreement.
b. Advanced Local Recruitment - Initial Hiring for New Business. So that
Targeted Job Applicants are made aware of the availability of On-Site
Jobs, at least 30 days before recruitment (“Advanced Recruitment
Period”) is opened up to general circulation for the initial hiring by a new
business, Theater Operator shall advertise available On-Site Jobs in the
Santa Monica Daily Press, or Santa Monica Police Activity League or
similar organization, or similar local media and electronically on a City-
sponsored website, if such a resource exists. In addition, Theater Operator
shall consult with and provide written notice to at least two first source
hiring organizations, which may include but are not limited to the
following:
(i) Local first source hiring programs
(ii) Trade unions
(iii) Apprenticeship programs at local colleges
(iv) Santa Monica educational institutions
(v) Other non-profit organizations involved in referring eligible
applicants for job opportunities
c. Advanced Local Recruitment - Subsequent Hiring. For subsequent
employment opportunities, the Advanced Recruitment Period for Targeted
Job Applicants can be reduced to at least 7 days before recruitment is
opened up to general circulation. Alternatively, the Theater Operator may
also use an established list of potential Targeted Job Applicants of not
more than one year old.
d. Obligations After Completion of Advanced Recruitment Period. Once
these advanced local recruitment obligations have been met, Theater
F-7
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Packet Pg. 1054 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Operator is not precluded from advertising regionally or nationally for
employees.
7. Hiring. The Theater Operator shall consider in good faith all applications
submitted by Targeted Job Applicants for On-Site Jobs in accordance with their
normal practice to hire the most qualified candidate for each position and shall be
make good faith efforts to hire Targeted Job Applicants when such Applicants are
most qualified or equally qualified as other applicants. The City acknowledges
that the Theater Operator shall determine in its subjective business judgment
whether any particular Targeted Job Applicant is qualified to perform the On-Site
Job for which such Targeted Job Applicant has applied.
8. Proactive Outreach. Theater Operator shall designate a “First-Source Hiring
Coordinator” (FHC) that shall manage all aspects of the Local Hiring Policy.
The FHC, who may be an employee of Theater Operator, shall be responsible for
actively seeking partnerships with local first-source hiring organizations prior to
employment opportunities being available. The FHC shall also be responsible for
encouraging and making available information on first-source hiring for the
Project. The FHC shall inform Theater Operator of the available resources on
first-source hiring. In addition to implementation of the Local Hiring Policy, the
FHC can have other work duties unrelated to the Local Hiring Policy.
9. Term. The Local Hiring Policy shall apply for the life of the Project.
10. Condition of Lease. Developer shall include the requirements of this program into
any leases executed with the Theater Operator. The FHC shall remind Theater
Operator not less than once each calendar quarter of the programs and policies.
Theater Operator shall have ultimate responsibility for adherence to the program
guidelines. Failure of the Theater Operator to comply with the requirements of
this program shall not constitute a Breach or default by Developer under this
Agreement so long as the Theater Operator lease requires such compliance, and
Developer is actively pursuing all necessary enforcement actions to bring the
Theater Operator into compliance with this lease provision.
F-8
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Packet Pg. 1055 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
F-9
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F-10
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Packet Pg. 1057 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT G-1
Map of Work Area
G-1-1
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Packet Pg. 1058 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT G-2
Construction Drawings for Work
G-2-1
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Packet Pg. 1059 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT H
CONSTRUCTION IMPACT MITIGATION PLAN
TRAF-1: Construction Impact Mitigation Plan. The Applicant shall prepare, implement,
and maintain a Construction Impact Mitigation Plan which shall be designed to:
• Minimize traffic impacts on the surrounding roadway network.
• Maintain two lanes of traffic, unobstructed, in both the northbound and
southbound direction on 4th Street for the duration of the project.
• Ensure no work encroaches into existing bus stop on southbound 4th Street.
• Minimize parking impacts both to public parking and access to private parking.
• Ensure safety for both those constructing the project and the surrounding
community.
• Prevent truck traffic through residential neighborhoods by establishing truck
routes that utilize non-residential streets.
• Ensure coordination with the Exposition Light Rail line (Expo LRT) Downtown
Santa Monica station, Gas Company, Southern California Edison, Colorado
Esplanade, and other nearby construction projects such as the approved 5th and
Colorado Hotel projects. The Construction Impact Mitigation Plan shall be
subject to review and approval by the following City departments: Public Works
Department, Santa Monica Fire Department, Planning and Community
Development (Transportation Engineering and Management Division), and Santa
Monica Police Department to ensure that the Plan has been designed in
accordance with this mitigation measure. This review shall occur prior to building
permit issuance for the Project. It shall at a minimum, include the following:
• A detailed traffic control plan for work zones shall be implemented
which includes, at a minimum temporary parking and travel lane
configurations; warning, regulatory, guide and directional signage; and
area sidewalks, bicycle lanes and parking lanes (i.e. Temporary Traffic
Control Plans). The plan shall include specific information regarding
the Project’s construction activities that may disrupt normal pedestrian
and traffic flow, temporary close lanes, and the measures to address
these disruptions. Such plans must be submitted to, reviewed and
approved by the Public Works Department and the Transportation
Engineering and Management Division prior to building permit
issuance and implemented in accordance with this approval, as a part
H-1
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Packet Pg. 1060 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
of standard permitting processes for work occurring within the public
right-of-way (i.e. Use of Public Property Permit process). Note that the
process for submittal, review, and approval of Temporary Traffic
Control Plans is separate from the Use of Public Property Permit
process and has specific requirements.
• Work within the public right-of-way shall be performed between 9:00
AM and 4:00 PM, including demolition material hauling and
construction material delivery. Any requests for work before or after
normal construction hours within the public right-of-way shall be
subject to review and approval through the After Hours Permit process
administered by the Building and Safety Division.
• Streets and equipment should be cleaned in accordance with Santa
Monica’s established Environmental and Public Works Management
(“EPWM”) requirements.
• Trucks shall only travel on a City approved construction route.
• Materials and equipment should be minimally visible to the public; the
preferred location for materials is to be on-site, with a minimum
amount of materials within a work area in the public right-of-way,
subject to a current Use of Public Property permit.
Project Coordination Elements that shall be implemented prior to commencement of
construction:
• The Applicant will coordinate with the City’s Public Works Department and the
Transportation Engineering and Management Division to ensure that temporary
lane restrictions associated with the Expo LRT, Colorado Esplanade, and 5th and
Colorado Hotel projects do not occur in manner that significantly obstructs traffic
flow on Colorado Avenue or 4th Street.
• The Applicant shall advise the traveling public of impending construction
activities (e.g., information signs, portable message signs, media
listing/notification).
• The Applicant shall specify a direct contact person (name, cell phone, and email)
who can represent the contractor(s) for all construction-related activities that will
occur within the public right-of-way. The contact person shall provide weekly
updates to Transportation Engineering and Management Division staff on planned
construction activities and associated work within the public right-of-way for the
forthcoming weeks. The Applicant shall notify Transportation Engineering and
Management Division staff of any changes to the designated contact person in
writing at least seven (7) days prior to making and personnel changes.
H-2
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Packet Pg. 1061 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
• The Applicant shall obtain a Use of Public Property Permit for any construction
work requiring lane closures, encroachment into public rights-of-way, detours or
any other work within the public right-of-way.
• The Applicant shall provide timely notification of construction schedules to all
affected agencies (e.g., Big Blue Bus, Police Department, Fire Department, Public
Works Department, and Planning and Community Development Department) and
to all owners and residential and commercial tenants of property within a radius
of 500 feet of the construction site.
H-3
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Packet Pg. 1062 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
Recording Requested By and
When Recorded Mail To:
Armbruster Goldsmith & Delvac LLP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Attn: Dale Goldsmith, Esq.
________________________________________________________________________
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”) is
made and entered into by and between MACERICH SMC LP, a Delaware limited
liability company (“Assignor”), and ________________________, a
__________________ (“Assignee”).
R E C I T A L S
A. The City of Santa Monica (“City”) and Assignor entered into that certain
Development Agreement dated _______________, 2013 (the “Development
Agreement”), with respect to the real property located in the City of Santa Monica, State
of California more particularly described in Exhibit “A” attached hereto (the “Project
Site”).
B. Assignor has obtained from the City certain development approvals and
permits with respect to the development of the Project Site, including without limitation,
approval of the Development Agreement and a vesting parcel map for the Project Site
(collectively, the “Project Approvals”).
C. Assignor intends to sell, and Assignee intends to purchase, the Project
Site.
D. In connection with such purchase and sale, Assignor desires to transfer all
of the Assignor’s right, title, and interest in and to the Development Agreement and the
Project Approvals with respect to the Project Site. Assignee desires to accept such
assignment from Assignor and assume the obligations of Assignor under the
Development Agreement and the Project Approvals with respect to the Project Site.
THEREFORE, the parties agree as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
Assignor’s right, title, and interest in and to the Development Agreement and the Project
I-1
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Packet Pg. 1063 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
Approvals with respect to the Project Site. Assignee hereby accepts such assignment
from Assignor.
2. Assumption. Assignee expressly assumes and agrees to keep, perform, and
fulfill all the terms, conditions, covenants, and obligations required to be kept, performed,
and fulfilled by Assignor under the Development Agreement and the Project Approvals
with respect to the Project Site.
3. Effective Date. The execution by City of the attached receipt for this
Agreement shall be considered as conclusive proof of delivery of this Agreement and of
the assignment and assumption contained herein. This Agreement shall be effective upon
its recordation in the Official Records of Los Angeles County, California, provided that
Assignee has closed the purchase and sale transaction and acquired legal title to the
Project Site.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth next to their signatures below.
“ASSIGNOR”
MACERICH SMP LP,
a Delaware limited partnership
By: MACERICH SMP GP LLC,
a Delaware limited liability
company, its general partner
By:
Name:
Title:
“ASSIGNEE”
I-2
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Packet Pg. 1064 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
RECEIPT BY CITY
The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received
by the City of Santa Monica on this ___ day of ________________, ________.
CITY OF SANTA MONICA
___________________________________
By: _______________________________
Planning Director
I-3
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Packet Pg. 1065 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
EXHIBIT J
CONDITIONS FOR SALE OF ALCOHOLIC BEVERAGES
(1) Window or other signage visible from the public right-of-way that advertises beer or
alcohol shall not be permitted.
(2) The Theater Operator shall offer food to patrons during all hours that alcohol is being
served in the Theater.
(3) No alcoholic beverages shall be sold or dispensed for consumption beyond (but
alcoholic beverages may be consumed anywhere within) the Theater, including the
auditoriums, bar/café and Lounge.
(4) Except for special events, alcoholic beverages shall be served in containers that
significantly differ in appearance from those containers utilized for non-alcoholic
beverages. This condition does not preclude the service of alcoholic beverages in their
original containers.
(5) No dancing is permitted at the theater premises. Live entertainment may only be
permitted in the manner set forth in SMMC Section 9.04.02.030.730.
(6) Any minimum purchase requirement may be satisfied by the purchase of beverages or
food.
(7) The permitted hours of alcoholic beverage service shall be 9:00 a.m. to 1:00 a.m.
every day of the week. No after-hours sales of alcohol permitted.
(8) Prior to issuance of Certificate of Occupancy or business license, as applicable, the
Theater Operator shall submit a theater security plan to the Chief of Police for review and
approval. The plan shall address both physical and operational security issues.
(9) Prior to issuance of Certificate of Occupancy or business license, as applicable, the
Theater Operator shall submit a plan for approval by the Planning Director regarding its
employee alcohol awareness training programs and policies. The plan shall outline a
mandatory alcohol-awareness training program for all theater employees engaged in the
service of alcohol and shall state the Theater Operator’s policies addressing alcohol
consumption and inebriation. The program shall require all theater employees engaged in
the service of alcohol to complete an ABC-sponsored alcohol awareness training program
within ninety days of the date of hire, or within a reasonable time thereafter. In the event
the ABC no longer sponsors an alcohol awareness training program, all theater
employees engaged in the service of alcohol shall complete an alternative program
approved by the Planning Director. Upon written request from the City (not more than
once in any calendar year), the Theater Operator shall provide the City with a report
regarding compliance with this requirement. The Theater Operator shall be subject to any
future citywide alcohol awareness training program affecting similar establishments.
J-1
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Packet Pg. 1066 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
(10) Within thirty days from the date of submission of the written agreement described in
Section 2.6.2 (b), of the Agreement, the Theater Operator shall provide a copy of the
signed agreement to the local office of the State Department of Alcoholic Beverage
Control (ABC).
(11) Prior to issuance of Certificate of Occupancy or business license, as applicable, the
Theater Operator shall submit a plan describing the establishment’s designated driver
program, which shall be offered by the operator to the establishment’s patrons. The plan
shall specify how the Theater Operator will inform patrons of the program, such as
offering on the menu a free non-alcoholic drink for every party of two or more ordering
alcoholic beverages.
(12) In the event Theater Operator fails to comply with any conditions of approval of this
Exhibit, no further permits, licenses, approval or certificates of occupancy for the theater
shall be issued to such applicant until such violation has been fully remedied.
(13) The Theater Operator is on notice that all temporary signage is subject to the
restrictions of the City’s sign ordinance included in Exhibit “E”, SMMC Article 9
(Planning and Zoning) to this Agreement.
(14) The theater shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4.12).
(15) Prior to commence of alcohol service in the theater, the Theater Operator shall
participate in the Santa Monica Alcohol Awareness for Retailers Training
(S.M.A.A.R.T.) program conducted by the Santa Monica Police Department.
(16) The Theater Operator authorizes reasonable City inspection of the theater premises
to ensure compliance with the conditions set forth in this Exhibit “J” and will bear the
reasonable cost of these inspections as established by SMMC Section 2.72.010 and
Resolution No. 9905 (CCS) of any successor legislation hereto. These inspections shall
be no more intrusive as necessary to ensure compliance with this Exhibit “J”.
J-2
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Packet Pg. 1067 Attachment: SMP Cinemas Development Agreement - Council Mtg 4-22-14 (5685 : Dissolution of Santa Monica Place Movie Theater
1
City Council Meeting May 9, 2023 Santa Monica, California
ORDINANCE NUMBER _________ (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA CANCELLING DEVELOPMENT AGREEMENT 13DEV-010
BETWEEN THE CITY OF SANTA MONICA, A MUNICIPAL CORPORATION, AND
MACERICH SMP LP, A DELAWARE LIMITED PARTNERSHIP
WHEREAS, on April 22, 2014, City Council approved Development Agreement
13DEV-010 (“Development Agreement”) to allow the construction of a multi-screen movie
theater complex on the third level of Santa Monica Place, located at 315 Colorado Avenue
(the “project”); and
WHEREAS, at the time of the Development Agreement’s approval, and pending
completion of the Downtown Community Plan (“DCP”), the City’s Interim Zoning
Ordinance (“IZO”) required the project to be reviewed though a development agreement
because the project exceeded the height limitations in the IZO but was within the eighty-
four-foot height limit allowed by the Land Use and Circulation Element (“LUCE”); and
WHEREAS, consistent with LUCE land use policies at the time, the Development
Agreement included a suite of community benefits required by Macerich, including, but
not limited to, contributions towards construction of the City’s Colorado Esplanade Project
and the Downtown Wayfinding Metro Grant project, provisions for making theaters
available to the American Film Market, a transportation demand management plan, local
hiring provisions, and sustainable features; and
WHEREAS, the tenant space that was created as a result of the Development
Agreement has not been used a movie theater since March 2020, and any new uses of
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the space would require a separate process to determine what, if any, discretionary
permits are required; and
WHEREAS, Macerich is proposing a new museum in the tenant space, a permitted
use in the DCP’s Transit Adjacent Zone; and
WHEREAS, these key community benefits required were satisfied concurrently
with the completion of construction of the project or are no longer applicable where the
use of the space will no longer be for a movie theatre; and
WHEREAS, many of the terms and conditions contained in the Development
Agreement are also structured for a single-purpose theater use that is no longer in
operation, and, therefore, restrict the reuse of the vacant tenant space for other permitted
uses identified in the DCP; and
WHEREAS, since the approval of the Development Agreement, the height limit
has been increased in the DCP, and a development agreement would no longer be
required for the project; and
WHEREAS, facilitating the reuse of this anchor tenant space for a visitor-and-
community-serving immersive art use, or other permitted use, will help support the overall
economic recovery efforts of both the City and private property owners in Santa Monica’s
Downtown, contribute to the Downtown Core as being a thriving, mixed-use urban
environment, and provide entertainment, arts, and cultural opportunities to residents and
visitors alike; and
WHEREAS, pursuant to Santa Monica Municipal Code Section 9.60.150, either
the City or applicant or successor in interest may propose an amendment or cancellation
in whole or in part of a development agreement; and
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Packet Pg. 1069 Attachment: CDD-Ord-Cancellation of SMP Theater DA 050923 [Revision 1] (5685 : Dissolution of Santa Monica Place Movie Theater
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WHEREAS, except as provided for in Santa Monica Municipal Code 9.60.180, a
development agreement may only be amended or cancelled in whole or in part by the
mutual consent of all parties to the subject development agreement; and
WHEREAS, Macerich has requested that the Development Agreement be
cancelled; and
WHEREAS, on April 19, 2023, the Planning Commission conducted a duly-noticed
public hearing to consider the proposed Development Agreement cancellation, and, after
considering oral and written testimony, recommended to the City Council that the City
Council agree to cancel the Development Agreement; and
WHEREAS, on May 9, 2023, the City Council conducted a duly-noticed public
hearing to consider the proposed cancellation and the Planning Commission’s
recommendation.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Development Agreement 13DEV-010 adopted by City Council on
April 22, 2014, is hereby cancelled in its entirety pursuant to Santa Monica Municipal
Code Section 9.60.150.
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary to
effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
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court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have passed
this Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within 15 days after its adoption. This Ordinance shall become effective 30
days from its adoption.
APPROVED AS TO FORM:
_________________________
Douglas Sloan
City Attorney
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Packet Pg. 1071 Attachment: CDD-Ord-Cancellation of SMP Theater DA 050923 [Revision 1] (5685 : Dissolution of Santa Monica Place Movie Theater
Item 10D.
Santa Monica Place Development
Agreement Cancellation
City Council
May 9, 2023
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Packet Pg. 1072 Attachment: PowerPoint Presentation (5685 : Dissolution of Santa Monica Place Movie
Santa Monica Place Development Agreement Cancellation
Staff Recommendation
•Adopt a finding of no possibility of significant environmental effect pursuant to CEQA
Introduce for first reading of an ordinance to cancel the Development Agreement
(13DEV-010) pertaining to a movie theater complex at Santa Monica Place
Authorize the City Manager to take all necessary implementing actions related to
cancellation
Background
•April 22, 2014 City Council entered into a Development Agreement with Macerich for a movie theater
on 3rd floor of Santa Monica Place, 315 Colorado Avenue.
•Conversion of then-vacant retail space required additional building height to accommodate theater.
•Interim zoning regulations required Development Agreement for the additional building height,
pending completion of the Downtown Community Plan (DCP).
•Theater built and operated; all associated community benefits delivered.
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Packet Pg. 1073 Attachment: PowerPoint Presentation (5685 : Dissolution of Santa Monica Place Movie
Santa Monica Place Development Agreement Cancellation
Staff Recommends
•Theater operations ceased in 2020 and cancellation request initiated by Macerich to facilitate a
new use of vacant tenant space (DA terms are structured for single-purpose theater use)
•Today’s DCP allows for the building height without a Development Agreement.
•Key community benefits required by the 2014 Development Agreement were satisfied concurrently
with completion of construction and operation of the movie theater.
•Facilitating the reuse of this anchor tenant space for a visitor-and community-serving immersive
art use, or other permitted use, will help support the overall economic recovery efforts of both the
City and private property owners in Santa Monica’s Downtown.
10.D.f
Packet Pg. 1074 Attachment: PowerPoint Presentation (5685 : Dissolution of Santa Monica Place Movie